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Rajendra Singh v. State Of U.P. & Others - WRIT - A No. 32051 of 2001 [2006] RD-AH 10009 (22 May 2006)


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Court No.19

Civil Misc. Writ petition No.32051 of 2001

Rajendra Singh  Vs.  State of U.P. and others.

Hon'ble V.C.Misra,J.

Heard Sri P.K.Dubey, learned counsel for the petitioner, Sri Ramesh Upadhaya, learned counsel for respondents no. 1& 2., learned standing counsel and perused the record.

This writ petition has been filed challenging the impugned order dated 4.1.2001 (Annexure No.11 to the writ petition) by which an amount Rs. 64,855.80 has been sought to be recovered towards arrears of rent, electricity charges and other amounts outstanding against the petitioner from which an amount of Rs. 20,155.80  has been adjusted from the gratuity, Rs.3,428/- from group insurance and the balance amount of Rs.41,271.80 has been sought to be recovered after adjustment.

The facts of the case in brief are that on 31.3.1992 the petitioner retired from the post of clerk/J.N.D. from Madan Mohan Malviya Engineering College. Gorakhpur.  He had been was allotted residential quarter no. Ga /11/7 in the college.  The petitioner's son Sri Vishwa Vijay Singh was also employed as daily wager in the college and he made an application for allotment of aforesaid quarter on 26.6.1992. However, the petitioner continued to remain in possession of the said quarter in his name till 23.1.1998 and thereafter the said quarter was allotted in the name of his son Sri Vishwa Vijay Singh w.e.f. 1.12.1997.  The respondents no.2 and 3 demanded the rent of the quarter from the petitioner on the basis of provisions laid down in Rule 18 (a) (5) of the Financial Hand Book Volume-II, Part II to IV, calculating rent at the rate Rs.20 per sq. meter.  Since the payment of gratuity and other retiral benefits had been withheld,  the petitioner filed writ petition no.43136 of 2000 before this Court, which was disposed off finally with the direction to respondents to take decision on the application/ representation filed by the petitioner by means of a speaking order.  It is alleged that a copy of the judgment was served on respondents, who deducted an amount of Rs. 23,583.80 from the amount of gratuity and group insurance of the petitioner and adjusted it against the said rent and thereafter proceeded for recover the remaining balance amount from the petitioner's son  Sri Vishwa Vijay Singh, who had been allotted the aforesaid quarter.

Being aggrieved, petitioner filed the present writ petition challenging the impugned order dated 4.1.2001 (Annexure No.11 to the writ petition) mainly on two counts, firstly, that the respondents have not correctly applied the relevant provisions under which the rent was required to be recovered and have also not correctly calculated the same.  The calculated amount was absolutely wrong and illegal, inasmuch as, under the proviso of the aforesaid Rule 18 (a) (5) very clearly lays down that the amount of rent can be recovered calculated at three times of the standard rent.  A copy of the relevant rules has been annexed as (Annexure No.6 to the writ petition).   Secondly, it has also been contended that in terms of the ratio laid down in the case of Dr. Shitla Prasad Nagendra Vs. Gorakhpur University and others, reported in 1998 (3) AWC, 2367 and Sri R.Kapoor Vs. Director of Inspection (Plainting and Publication) Income Tax and another, reported in 1995 (1), UPLBEC, 89 and various other decisions wherein it has been held that gratuity cannot be withheld or adjusted or appropriated for the satisfaction of any dues outstanding against the retired person specifically on the ground that the damages for occupation of official resident are not paid, the action of the respondents is illegal.

From a perusal of counter affidavit, I find that the respondents have admittedly adjusted the amount payable to the petitioner towards the gratuity and group insurance dues and directing recovery of rent from other employees of the college on the basis of same Government Order dated 24.12.l988 as has been deducted, who retained the official accommodation by deducting from their monthly pension till the date of retirement and were required to pay rent at the same rate as the Government Official at the rate Rs. 20/- per sq. meter in terms of order dated 19.10.2000 issued by the administrative officers  and which is  also  provided under the aforesaid Rule 18 (a) (5) of the Financial Hand Book.  It is settled law that Government Order or direction cannot supersede the statutory rules and, therefore, the Government Order dated 24.12.1988 cannot override upon the proviso to Rule 18-A (5) of the Financial Hand Book Volume II, Part II to IV.

I have perused the record and also the provisions of the aforesaid Rules 18 (a) (5) of the Financial Hand Book.  It has been clearly stated in the proviso to the said Rule that the maximum amount which can be recovered towards the rent beyond occupation of the normal period is three times of standard rent.  The respondents cannot recover the amount more than what has been stated in the said Rule 18 (a) (5), I also find that the respondents have wrongly and illegally adjusted the amount of the gratuity and group insurance payable to the petitioner towards rent in terms of the settled law and the decisions relied upon by learned counsel for the petitioner.

In view of the same, the impugned order dated 4.1.2001 (Annexure No.11 to the writ petition) is hereby quashed.  Respondents no.2 and 3 are directed to recalculate the rent payable by the petitioner strictly in accordance with the aforesaid Rule 18 (a) (5 ) of the Financial Hand Book.  Learned counsel for the petitioner has submitted that, whatever, amount of rent is legally payable by the petitioner on calculation made strictly in accordance with the aforesaid Rules would not be more than Rs. 18,000/- the details of which have already been submitted through his representation dated 27.1.1999.  However, he has also accepted that the amount of the gratuity and group insurance which though have been wrongly and illegally withheld may be adjusted accordingly and the remaining balance amount be paid to the petitioner at the earliest with interest at the rate of 18% per annum.

Under the above said facts and circumstances of the case and submission made by the learned counsel for the petitioner, the respondents are directed to dispose of the representation of the petitioner dated 27.1.1999 by a speaking order and release the  balance amount of gratuity and group insurance of the petitioner, if any, within a period of three months with interest at the rate of 12 % per annum from the date of production of a certified copy of this order before the respondents.

With these directions, the writ petition is allowed.  No order as to costs.

Dated: 22.5.2006



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