UNION OF INDIA & ANRversusOMKAR NATH DHAR (D) THROUGH L.RS.

1056                        [2021]REPORTS
                  SUPREME COURT   6 S.C.R. 1056             [2021] 6 S.C.R.


 A                          UNION OF INDIA & ANR
                                         v.
                   OMKAR NATH DHAR (D) THROUGH L.Rs.
                    (Miscellaneous Application No. 1468 of 2021)
 B                                       In
                          (Civil Appeal No. 6619 of 2014)
                               OCTOBER 07, 2021
                  [HEMANT GUPTA AND A. S. BOPANNA, JJ.]
 C
              Government Accommodation – For retired Government
       employees who are Kashmiri Migrants – Propriety – Held:
       Government houses/flats are meant for serving Government
       employees – There cannot be any justification on the basis of social
       or economic criteria to allow the Kashmiri Migrants to stay in
 D     Government accommodation for indefinite long period – To say
       that they would return to the Valley when the situation will improve
       is an open-ended statement capable of being interpreted in different
       ways – The satisfaction of improvement of situation would be widely
       different by the erstwhile Government employees and the State –
 E     But in no case it can be countenanced that the former Government
       employee, may be a Kashmiri Migrant, is entitled to stay in a
       government accommodation for an indefinite period – Impugned
       Office Memorandum allowing government accommodation to retired
       Government employees who are Kashmiri Migrants cannot meet the
       touchstone of Art.14 of the Constitution, and accordingly struck
 F     down as being totally arbitrary and discriminatory.
             Union of India v. Vijay Mam 2012 SCC OnLine Del
             3218 – referred to.
            CIVIL APPELLATE JURISDICTION: Miscellaneous Application
 G     No.1468 of 2021.
             In
             Civil Appeal No.6619 of 2014.
             From the Judgment and Order dated 07.07.2011 of the High Court
       of Punjab and Haryana at Chandigarh in L.P.A. No.1128 of 2011(O&M)
 H
                                       1056
     UNION OF INDIA v. OMKAR NATH DHAR (D) THROUGH L.Rs.                       1057


       With                                                                    A
       Miscellaneous Application No.1556 of 2021 In Civil Appeal
No.6619 of 2014 and Miscellaneous Application No.1573 of 2021
       In
       Civil Appeal No. 6619 of 2014
       Ms. Madhvi Divan, ASG, Bimal Roy Jad, Sr. Adv., Ms. Riddhi              B
Jad, Ms. Shikha Dixit, Dr. Brij Bhushan K. Jauhari, Ms. Purnima Jauhari,
Shiv Sagar Tiwari, Ms. Aakansha Tiwari, Kishor Kumar Mishra, Aditya
Mishra, Ashutosh Bansal, Sanjay Sharma, Niranjan Moharana, Surya
Kant Jena, Ms. Preeti, Ms. Seema Bengani, Rajan Kumar Chourasia,
Ms. Vimla Sinha, Amrish Kumar, Yoginder Handoo, Ritesh Khatri, Advs.           C
for the Appearing Parties.
       The Order of the Court was passed by
       HEMANT GUPTA, J.
       1. This order shall be read with in continuation of order dated
5.8.2021 and shall dispose of the three applications filed by the occupants    D
of the Government accommodation in Delhi and in National Capital
Region on the strength of an order passed by the Delhi High Court in a
judgment reported as Union of India v. Vijay Mam 1, including an
application filed by the legal heir of the deceased respondent Omkar
Nath Dhar for recall of judgment of this Court passed on 5.8.2021.
                                                                               E
       2. In M.A. No. 1468 of 2021, recall is sought on the basis that the
respondent had died on 16.3.2020 and this Court had passed an order
without seeking substitution of the legal representatives of the deceased
respondent.
       3. All these applications are filed by the applicants who are in
possession of government accommodation in Delhi and/or National Capital        F
Region in terms of policy framed by the Central Government on 28.3.2017
as modified on 19.5.2017.
       4. In Vijay Mam, there was a direction that the Central
Government was to frame a rehabilitation scheme specifically for such
retired employees like the respondents herein, specifying the terms and        G
conditions on which such persons would be entitled to rehabilitate/alternate
residence, which may include the term that these respondents or family
members do not have any residence in any part of the country. The

1
    2012 SCC On Line Del 3218                                                  H
1058              SUPREME COURT REPORTS                        [2021] 6 S.C.R.


 A     Office Memorandum is the policy circulated on 28.3.2017 in pursuance
       of the directions of the High Court of Delhi. The relevant extract from
       the Office Memorandum reads thus:
             “
                               OFFICE MEMORANDUM
 B
             Subject: Scheme for providing alternate accommodation etc. to
             retired Central Govt. employees belonging to the State of Jammu
             & Kashmir holding General Pool residential accommodation in
             Delhi in terms of the direction of Hon’ble High Court of Delhi.

 C           xx                         xx                      xx
             4.In view of direction of the Hon’ble High Court of Delhi, a scheme
             has now been formulated by Ministry of Urban Development, in
             consultation with Ministry of Home Affairs, for providing alternate
             residence to retired Central Govt. employees belonging to State
 D           of Jammu & Kashmir who are possessing General Pool Residential
             Accommodation (GPRA) in Delhi and who meet the specified
             terms and conditions to qualify as “Kashmiri migrant”. The Scheme
             is enclosed at Annexure.
             xx                        xx                      xx
 E                                                                    Annexure
             Scheme for· providing alternate accommodation etc. to retired
             central Govt. employees belonging to the State of J&K holding
             General Pool residential accommodation in Delhi in terms of the
             direction of Hon’ble High Court of Delhi
 F           1. Terms and conditions for qualifying a ‘Kashmiri migrant’ under
             this scheme
             (i) The applicant should be a retired Central Government employee
             or his/her .spouse (in case the employee is dead), and the applicant
             should be in possession of a General Pool Residential
 G           Accommodation (GPRA) in Delhi allotted by the Directorate of
             Estates, Ministry of Urban Development on the date of filing the
             application.
             (ii) Applicant should be a permanent resident of State of Jammu
             and Kashmir and should be an erstwhile domicile of Kashmir
 H           Division excluding Ladakh and Kargil districts.
UNION OF INDIA v. OMKAR NATH DHAR (D) THROUGH L.Rs.                     1059
                  [HEMANT GUPTA, J.]

   (iii) Applicant was an employee . 9f the Central Government and      A
   was posted in Srinagar, J&K at the relevant time, and he was
   transferred by the Central Government from Srinagar to Delhi on
   security ground after 1st November, 1989.
   (iv) He/She’or his/her family have no other residence in any part
   of the country.                                                      B
   (v) Though he/she has retired, he/she is not in a position to go
   back to his/her native place because condition are still not
   favourable for his/her safe return back to the valley.
   2. Scheme
                                                                        C
   i). The retired Kashmiri migrants (who were litigants in the cases
   decided by Hon’ble Delhi High Court) holding residential
   accommodation from General Pool shall be provided retention in
   the quarters in their possession at present.
   ii) Such retired Kashmiri migrants, who meet the specified terms     D
   and conditions to qualify as a ‘Kashmiri migrant’ would be
   accommodated in Delhi for first five years starting from the date
   of their retirement and thereafter be shifted to NCR. The scheme
   would apply to those retired Central. Govt. employees belonging
   to State of J&K who have been transferred by the Central Govt
   from Srinagar to Delhi on security grounds after 1st November,       E
   1989.
   iii) The quarters may be held by the retired government employees
   till his/her demise or demise of his/her spouse whichever event
   takes place later, subject to extension of this scheme and the
   condition that the retired government employee/spouse doesn’t        F
   procure a house in any part of India subsequent to their availing
   of this scheme. Extension of this scheme will be granted at par
   with the extension of the scheme of retention of GPRA at the last
   place of posting to civilian Central Govt. Employees posted to the
   State of J&K.
                                                                        G
   iv) The incumbent or his/her spouse, as the case, may be, will
   have to submit a life certificate once a year (in November) to the
   Directorate of Estates in the proforma prescribed for Pensioners
   for the purpose of availing benefits of the Rehabilitation Scheme
   for Kashmiri migrants.
                                                                        H
1060            SUPREME COURT REPORTS                           [2021] 6 S.C.R.


 A           3. Documentary Proof to be submitted for examining the request
             on case to case basis.
             When a claim is received for consideration for providing alternative
             residence under the direction of the Hon’ble High Court, the
             claimant must provide adequate· documentary proof in support of
 B           his claim that his/her case falls within the parameters of those
             retired Kashmiri migrants who were granted relief by the Hon’ble
             Court as set out in .para 30 of the judgment. Following documents
             may be collected from them;-
             a) Proof of posting in Srinagar, Jammu & Kashmir in Central
 C           Govt. office· during relevant period (documentary proof issued
             by the employer)
             b) Proof of transfer from Srinagar to Delhi during the relevant
             period, i.e. after 1st November,1989 (copy of transfer order/letter)
             c) Proof that he/she or his/her family have no other residence. in
 D           any part of the country. (copy of service book to ascertain if he
             has taken HBA from the Government)
             d) A life certificate from the incumbent/spouse, as the case may
             be, once per year (in November) in the proforma prescribed for
             the Pensioners for the purpose of availing benefits of Rehabilitation
 E           Scheme for Kashmiri migrants.
             4. The claim with the documentary proofs received from such
             retired Kashmiri migrants may be processed in the Allotment
             Section on case-to-case basis and their entitlement to an
             alternative. residence be decided in the light of the specified terms
 F           and conditions and the documentary proof produced by them.
             Alternative residence should be provided only after it is established
             from documentary proof that they fulfill the specified terms and
             conditions: Those who d9 not meet these conditions may be asked
             to vacate the quarters as per the provisions of Public Premises
             (Eviction of Unauthorised Occupants) Act, 1971'. Damage charges
 G           may also be made applicable on them for retaining the quarters
             beyond the permissible period.”
              5. Clause 2(i) of the Scheme was restricted to grant of benefits to
       retired Kashmiri Migrants who were litigants in the cases decided by
       the High Court of Delhi holding residential accommodation from the
 H     General Pool. However, such conditions were modified on 19.5.2017 to
  UNION OF INDIA v. OMKAR NATH DHAR (D) THROUGH L.Rs.                        1061
                    [HEMANT GUPTA, J.]

clarify that the Office Memorandum dated 28.3.2017 is applicable equally     A
to all retired Central Government employees belonging to the State of
Jammu & Kashmir who are holding General Pool residential
accommodation in Delhi, irrespective of whether they were litigants
before the Delhi High Court.
       6. Mr. Bimal Roy Jad, learned senior counsel appeared for the         B
applicants in M.A. Nos. 1556 of 2021 and 1573 of 2021 and vehemently
argued that this Court on 5.8.2021 held that the directions issued in J.L.
Koul were under Article 142 of the Constitution of India but in fact, the
directions were not issued under Article 142 of the Constitution of India
but while deciding the rights of the Kashmiri Migrants to residential
accommodation. It was further argued that the Kashmiri Migrants form         C
a different class as victims of terrorism, therefore, the same were dealt
with while keeping in view peculiar hardships faced by them. Since,
neither the transit accommodation is available for them nor they can go
to their houses which stand either occupied by the local population or
destroyed, therefore, the Kashmiri Migrants have been treated as a class     D
apart, particularly the applicants who were working in the critical
intelligence offices. Thus, in light of such background, the Scheme was
framed.
       7. It was argued that 31 Kashmiri Migrants were given protection
in J.L. Koul, therefore, similar protection was accorded by the High         E
Court of Delhi to the 54 Kashmiri Migrants. As per written submissions
filed by the appellants, 80 Kashmiri Migrants are in possession of
Government accommodation in Delhi and 3 in Faridabad.
       8. To a question put to Mr. Jad, it was admitted by him that some
of the migrants have retired many years ago but some might have retired      F
in 2016, 2017 and 2018 as well. Learned counsel argued that since the
Scheme provides a humanitarian approach to the problems faced by the
Kashmiri Migrants, therefore, the order passed by this Court needs to
be recalled. It was argued that the judgments referred to by this Court
such as Lok Prahari, S.D. Bandi and Shiv Sagar Tiwari arise in
different circumstances and are not applicable to the displaced Kashmiri     G
Migrants.
       9. Mr. Jad submitted that 31 retirees are still in occupation of
Government accommodation, therefore, the same benefit should be
granted to the other occupants in Delhi and/or National Capital Region.
It was also submitted that the judgments referred to by this Court in Lok    H
1062            SUPREME COURT REPORTS                           [2021] 6 S.C.R.


 A     Prahari were in respect of prominent public figures such as Chief
       Ministers, therefore, such directions in the aforesaid referred cases would
       not be applicable to the present applicants who are victims of terrorism.
               10. On the other hand, Ms. Madhavi Divan, learned Additional
       Solicitor General of India pointed out that the Government has given
 B     various benefits to Kashmiri Migrants including grant of financial
       assistance, financial package for repairs and renovation of the houses,
       jobs, ration etc. It was also argued that with the abrogation of Article
       370 from the Constitution of India, the Kashmiri Migrants have started
       moving back to the Kashmir Valley. Reference was made to the statement
       of Hon’ble Minister of State in the Ministry of Home Affairs on the floor
 C     of the House on 17th March 2021 that nearly 3800 persons have returned
       back to the Kashmir Valley in the last few years to take up the PM
       package jobs. 520 migrants have returned to Kashmir for taking up the
       jobs that have been provided to them under the Rehabilitation Package
       post abrogation of Article 370. Another nearly 2000 migrants are also
 D     likely to return under the same policy in the year 2021 on successful
       completion of the selection process. The Parliament was also informed
       that Government has devised policies for Return and Rehabilitation of
       Kashmiri Migrants under the Prime Minister’s Packages in the year
       2008 and 2015. The various components of the policies included assistance
       at the rate of Rs. 7.5 lacs for repairing fully or partially damaged house;
 E     Rs. 2 lacs for dilapidated/ unused house and Rs. 7.5 lacs for purchase/
       construction of a house in group housing societies for those who sold
       their properties during the period after 1989 and before the enactment
       of JK Migrant Immovable Property Preservation, Protection and
       Restraint of Distress Sale 1997. Cash relief is also being provided which
 F     has been raised to Rs. 13,000/- per family at the rate of Rs. 3250/- per
       person. 6,000 posts were announced under PM Packages and nearly
       3,800 Kashmiri Migrants have been rehabilitated directly by providing
       government employment. In respect of transit accommodation, it was
       stated as under:

 G           “In order to provide accommodation to the 6,000 Kashmiri
             Migrants who are getting employed in the Government of Jammu
             and Kashmir in the valley, 6,000 Transit Accommodation units are
             being constructed for Kashmiri Migrants Employees in various
             districts of Kashmir Valley at an estimated cost of Rs.920 Cr. So
             far, 1,025 dwelling units have already been constructed which
 H           include 721 dwelling units in the district of Budgam, Kulgam,
  UNION OF INDIA v. OMKAR NATH DHAR (D) THROUGH L.Rs.                          1063
                    [HEMANT GUPTA, J.]

      Kupwara, Anantnag and Pulwama. Another 1,488 units are under             A
      construction and land has been identified for about 2444 units.”
       11. We do not find that any modification is required to the order
dated 5.8.2021. In J.L. Koul, an affidavit of Chief Secretary of the
State was filed disclosing that out of 54 appellant/Migrants, 23 had already
vacated Government accommodation whereas 31 Migrants were still                B
occupying the Government accommodation. The appellants were allotted
residential accommodation at Jammu in the year 1989-1990 being
Government servants. The writ petitions were filed before the High Court
in the year 1995 which were decided by the learned Single Bench.
Aggrieved against the directions issued by the learned Single Bench of
the High Court, the occupants filed intra-court appeal before the High         C
Court which was dismissed. Still further, appeal was filed before this
Court.
      12. This Court noticed that during the period of 12 years when the
matter remained pending, directions were issued to prepare a
Rehabilitation Scheme which was ultimately prepared and placed on              D
record by the Chief Secretary of the State. Accepting the Scheme, it
was held that no further action/direction was required. However, the
appeal was disposed of “with a pious hope that the State shall take
all endeavours to rehabilitate the persons who have been victim of
terrorism and till the State is able to rehabilitate and provide the           E
appropriate accommodation to 31 appellant retirees/oustees, they
shall continue to possess the accommodations which are in their
respective possession on this date.”
       13. We do not find any merit in the argument that directions in
J.L. Koul were not under Article 142 of the Constitution of India. This        F
Court accepted the Rehabilitation Scheme produced on affidavit by the
Chief Secretary of the State and thereafter expressed a pious hope.
This Court did not decide any question of law or fact but merely expressed
a compassionate view to alleviate the difficulties being faced by Kashmiri
Migrants. The Rehabilitation Package approved by this Court itself
contemplated that transit accommodations were being constructed at             G
three sites but if such transit accommodation was not available, Rupees
One Lakh per family towards rental and incidental expenses would be
given to those who may not be accommodated in transit accommodation.
Thus, even if they have not been given alternate accommodation, the
Scheme approved by this Court contemplates cash compensation towards           H
1064            SUPREME COURT REPORTS                          [2021] 6 S.C.R.


 A     rental and incidental expenses. The compassion could not be extended
       in perpetuity and has to end some day or the other. Therefore, seeking
       parity with 31 retirees who were granted benefit in J.L. Koul is not
       tenable. The applicants are occupying the government accommodation
       at the cost of other Government servants who are waiting in queue for
       allotment of a government accommodation to discharge their official
 B
       duties. The compassion shown to Kashmiri Migrants has to be balanced
       with the expectations of the serving officers to discharge their duties
       effectively. The Government accommodation is meant for serving
       officers and cannot be taken as a recourse to stay in Government
       accommodation for the life time of the Government servants or his/her
 C     spouse.
              14. The Office Memorandum issued on 28.3.2017 was in terms
       of the directions of the High Court of Delhi. Such order of High Court
       has not been approved by this Court vide order dated 5.8.2021. Therefore,
       the entire basis of issuance of Office Memorandum falls flat as the very
 D     foundation of such Scheme stands knocked down.
              15. We find that the Office Memorandum allowing government
       accommodation to the retired Government employees who are Kashmiri
       Migrants cannot meet the touchstone of Article 14 of the Constitution of
       India. The Government houses/flats are meant for serving Government
 E     employees. Post retirement, the government employees including
       Kashmiri Migrants are granted pensionary benefits including monthly
       pension. The classification made in favour of Government employees
       who were Kashmiri Migrants stands on the same footing as that of
       other Government employees or public figures. There cannot be any
       justification on the basis of social or economic criteria to allow the
 F     Kashmiri Migrants to stay in Government accommodation for indefinite
       long period.
              16. To say that they would return to the Valley when the situation
       will improve is an open-ended statement capable of being interpreted in
       different ways. The satisfaction of improvement of situation would be
 G     widely different by the erstwhile Government employees and the State.
       But in no case it can be countenanced that the former Government
       employee, may be a Kashmiri Migrant, is entitled to stay in a government
       accommodation for an indefinite period. Thus, we are unable to uphold
       the Office Memorandum and strike it down as being totally arbitrary
 H     and discriminatory.
   UNION OF INDIA v. OMKAR NATH DHAR (D) THROUGH L.Rs.                            1065
                     [HEMANT GUPTA, J.]

        17. In Para 2(ii) of the Scheme, Kashmiri Pandits were to be              A
accommodated in Delhi for first five years starting from the date of their
retirement and thereafter be shifted to National Capital Region. Thus,
we find it reasonable if Kashmiri Migrants are allowed government
accommodation for a period of three years from the date of retirement
so as to make alternative arrangements within such period. If an alternative
                                                                                  B
accommodation is not available for them at their instance, they are at
liberty to move to the transit accommodation or to avail cash amount in
lieu of transit accommodation. Thus, a government employee who is a
Kashmiri Migrant would not be entitled to retain Government
accommodation for a period exceeding three years, may be in Delhi or
in the National Capital Region or for that matter anywhere in the country.        C
       18. The three-years period can also be considered as cooling off
period for the officers who were in active intelligence work so that they
can resume normal life but the excuse of once working for intelligence
agency is not a valid ground to occupy the Government accommodation
for indefinite period.                                                            D
      19. In view thereof, we do not find any merit in the present
applications. The same are dismissed. However, time granted to Omkar
Nath Dhar, since deceased, to vacate the premises is extended upto
30.11.2021. The action taken report by the Union shall be filed on or
before 15.12.2021. The liberty is given to the Union to file an application       E
for modification of the order in respect of the 31 retirees as well who
are covered by the judgment in J.L. Koul.


Devika Gujral                                           Applications dismissed.
                                                                                  F




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