ARMED FORCES TRIBUNAL, REGIONAL BENCH, CHENNAI. T.A. No. 05 of (Writ Petition No of 2005, High Court of Andhra Pradesh) and

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1 1 ARMED FORCES TRIBUNAL, REGIONAL BENCH, CHENNAI T.A. No. 05 of 2013 (Writ Petition No of 2005, High Court of Andhra Pradesh) and M.A.08 of 2014 Tuesday, the 15 th day of April 2014 THE HONOURABLE JUSTICE V. PERIYA KARUPPIAH (MEMBER - JUDICIAL) AND THE HONOURABLE LT GEN K. SURENDRA NATH (MEMBER ADMINISTRATIVE) Col.T.K.Banerjee (Retd.) R/o Flat No.F-1, Nirmal Bhavan Asha Officers Colony, R.K.Puram Secunderabad Applicant in person.. Applicant in both Vs. 1. The Union of India Through the Secretary Ministry of Defence Government of India, New Delhi The Chief of Army Staff Army Headquarters New Delhi The Station Commander Station Headquarters Secunderabad, Andhra Pradesh

2 2 4. The Deputy Director General, NCC General Choudhary Road Secunderabad 5. The Assistant Accounts Officer O/o Barrack Stores Officer (South) Secunderabad, Andhra Pradesh 6. The Controller of Defence Accounts (Officers) Pune -1, Maharashtra 7. Col. M.V.Moogi Director, NCC Directorate Secunderabad, Andhra Pradesh Respondents in both By Mr.B.Shantakumar, SPC ORDER (Order of the Tribunal made by Hon ble Lt.Gen.(Retd.) K.Surendra Nath, Member-Administrative) T.A.No.05/13 1. The application is filed by the applicant seeking reimbursement of damage rent charges levied against him for occupying House No.53-C, Malhotra Enclave, Secunderabad, Andhra Pradesh, for the period till the date of vacation, i.e., , totalling to an amount of Rs.70,000/-.

3 3 M.A.No.08/14: 2. This application is filed praying this Tribunal to receive the documents, namely: (a) the salary slips of the applicant from January 1998 to February 2000 along with connected licence fee bills; and (b) non-availability certificate issued by Station Commander, NCC Group, Headquarters, Kharagpur. 3. Briefly, the applicant was posted to NCC Group Headquarters at Secunderabad on Extra-Regimental Emplolyment and was allotted House No.53-C, Malhotra Enclave, Secunderabad for the duration of his family s stay at Secunderabad. He would further submit that his children were admitted to educational institutions in Secunderabad and the family settled down comfortably in the said Government accommodation. The applicant, on completion of his tenure at Secunderabad, was posted on transfer to Hubli, Karnataka on 15 July Hubli being a hard non-military station and as his children continued to study in educational institutions in Hyderabad/Secunderabad, he had requested for retention of accommodation on children s educational grounds in terms of para 70 and 71 of Special Army Order (SAO)/10/S/86. However, the Station Commander, Secunderabad did not grant him permission to retain the accommodation and, instead, asked him to hire accommodation on rent reimbursement basis in the same station as alternate accommodation. Though the applicant submitted several petitions for him to be permitted to stay in the same accommodation on children s education grounds, this was not acceded to and on completion of two-months grace

4 4 period for holding accommodation, he was charged damage rent for the period of occupation till he vacated the house on The applicant, aggrieved, filed a writ petition in Andhra Pradesh High Court, vide writ petition No of 2005 praying that the Proceeding No.105/B/Q/NCC TKB dated 17 November 2004 be quashed and he be reimbursed the damage rent amounting to Rs.70, The writ petition was transferred to Armed Forces Tribunal, Chennai, vide Andhra Pradesh High Court Order No. WP.No of 2005 dated The respondents, in their reply statement, stated that Col.T.K.Banerjee was in occupation of House No.53-C, Malhotra Enclave, Secunderabad since July On his posting to Hubli, Karnataka, a hard non-military station, he had requested for retaining family accommodation on children s education grounds. However, this was not granted to the officer as the provisions of retaining married accommodation for purposes of children s education is governed by Para 70 of SAO 10/S/86 and is meant for officers posted from a peace station to another peace station. In the present case, the officer was posted to a hard non-military station which has been equated to a field station vide Government of India, Ministry of Defence s letter No.6731/SFA/DGNCC/Adm(A-2)/4727/D(Q&C) dated 22 October Further, Secunderabad being a difficult station, in accordance with provisions of SAO 10/S/86 as amended, the applicant being low in priority for allotment of separated family accommodation, he was granted permission to hire accommodation on rent

5 5 reimbursement basis. However, he was permitted to retain House No. 53-C, Malhotra Enclave, Secunderabad for a period of two months on his posting out as per existing rules. This was to enable him to hire accommodation on rent reimbursement basis. Despite repeated written requests and instructions, the officer refused to vacate the said house and, therefore, in accordance with provisions of SAO 12/S/86, the Station Commander issued orders for charging damage rent with effect from till he vacated the accommodation on 09 May The Learned Counsel also argued that the Hon ble Supreme Court in UOI vs Wg.Cdr.R.R.Hingorani(Retd.) (AIR 1987 SC(808)) held that damage rent is an absolute liability if a Government servant retains Government accommodation beyond permissible time and becomes an unauthorised occupant. In view of the foregoing, the respondents argued that the case lacks merit and is liable to be dismissed. 6. On the above pleadings, the following points emerged for consideration: 1) What are the entitlements of the applicant with regard to retention of family accommodation on posting from a peace station to hard non-military station? 2) Is the applicant entitled to retention of married accommodation on children s education grounds? 3) Is the applicant entitled for the refund of damage rent collected from him? 4) To what relief, if any, the applicant is entitled for?

6 6 7. Heard Col.T.K.Banerjee, the applicant in person, Mr.B.Shantakumar, Learned Senior Panel Counsel, assisted by Capt.Vaibhav Kumar, Learned JAG for the respondent. 8. We have heard the arguments for either side. According to submissions of the applicant, he was posted out from 1 Andhra Battalion NCC, Secunderabad to 28 Karnataka Battalion NCC, Hubli in July The petitioner was in occupation of Government married accommodation, i.e., House NO.53-C, Malhotra Enclave, Secunderabad and his son was studying in Nizam Institute of Engineering and Technology that did not have any hostel facilities. Though the petitioner was entitled to a separated family accommodation to retain family at the last duty station, i.e., at Secunderabad, he being posted to a hard non-military station, sought retention of the said married accommodation on children s education grounds in accordance with the provisions of Para 70 and 71 of SAO 10/S/86. He would further submit that Station Commander, Secunderabad rejected his application for retaining the said accommodation on Children s Education Grounds for the academic year stating that he was not entitled to it and, instead, sanctioned hiring of civil accommodation on rent reimbursement basis as a separated family accommodation. Further, he would submit that he was asked to vacate the Government married accommodation within two months from the date of posting to Hubli as Secundrabad was a difficult station. The Station Commander did not accept his plea for retention of Government married accommodation. He would further submit that the definition of

7 7 field and modified field area with entitlement is given in Government of India Ministry of Defence Letter No.37269/AC/PS 3(a)/90/D/(Pay/Services) dated He would plead that all other stations not declared as field or modified field area are to be deemed peace stations; those peace stations having troops are military stations and those without any troops are deemed as non-military stations. Certain non-military stations which lacked government accommodation and good educational facilities for children were identified as hard non-military stations vide Government of India, Ministry of Defence Letter No.673/SFA/DG&CC/Admn(A-2)/4727/D(Q&C) dated Officers posted to these stations have been permitted a choice to retain their families in their last duty station or to a separated family accommodation in a station of their choice. He would further submit that even when an officer is posted from a field area and is entitled to a separated family accommodation, Army HQ vide QMG Branch letter No.22389/Q-3(B-1) dated have directed Station Commanders to give due consideration as to when an officer is to be shifted from regular accommodation to separated family accommodation so that the children s examinations are not hampered. He would further argue that even though Secunderabad has been declared as a difficult station, a number of officers were permitted to retain accommodation in the same complex for extended periods on children s education ground. These cases were brought to the notice of the Station Commander by the applicant vide his letter No.423/Q/Admn dated He would also argue that even on an earlier

8 8 occasion when he was posted from Gwalior to Tamluk, West Bengal which is also a hard non-military station as classified in GOI Ministry of Defence letter No.6731/SFA/DGNCC/ADM(A-2)4727/D (Q&C) dated , he was permitted by the Station Commander to retain Government accommodation at Gwalior Military Station on the ground of Children s Education for two consecutive years from January 1998 to February The petitioner, therefore, is aggrieved that he was wrongly asked to vacate the accommodation without providing alternate accommodation, and on failing to vacate, was charged damage rate of rent for the period to , till he moved to a separated family accommodation and, he is entitled for reimbursement of the damage rent charged and collected to the tune of Rs.70,000/-. He further pleaded that he did not claim any rent reimbursement for single officer accommodation in accordance with paragraph 70(b) of SAO 10/S/86 while posted at Hubli as confirmed by PCDA(O) Pune, letter No.LW/14/237/146168A dated The respondents, in their reply statement, would state that Col.T.K.Banerjee was posted in 1 Andhra Battalion NCC, Hyderabad since April 2001 and that the NCC Directorate, Secunderabad has its own separate pool of married accommodation, though limited in number, for allotment to officers posted to NCC in Secunderabad. The Officer was in occupation of NCC pool accommodation, i.e., House No.53-C, Malhotra Enclave, Secunderabad with effect from 07 July He was transferred to 28 Karnataka Battalion NCC, Hubli on 15 July Hubli is a hard non-military station as

9 9 listed in GoI letter No.6731/SFA/DG NCC/Admn/A-2/4727/D(Q&C) dated , as amended. A hard non-military station is treated on the same lines as a field area for entitlement of separated family accommodation vide Army Headquarters letter No.A/53358/SFA/Policy(Qtr) dated 29 July Accordingly, the applicant was entitled to separated family accommodation in his last duty station, i.e., Secunderabad. Col.T.K.Banerjee, on his posting to Hubli, applied for retention of accommodation on grounds of children s education, instead of asking for allotment of separated family accommodation. The respondents would aver that the applicant was posted to a hard non-military station and retention of accommodation on educational grounds is only permitted when an officer is posted from a peace station to another peace station as envisaged in para 70 & 71 of SAO 10/S/86. He was not entitled for retention on these grounds and his only entitlement was to apply for a separated family accommodation. Further, Secunderabad being a difficult station in terms of SAO 10/S of 86, the maximum permissible period for retention of accommodation is only two months from the date of posting. Therefore, the officer was permitted to retain the accommodation for a period of two months during which period, the officer was asked to move to an alternate accomodation, i.e., he was permitted to hire a house on rent reimbursement basis, he being far lower in seniority for allotment of separated family accommodation and was unlikely to be allotted such an accommodation in a reasonable period of time. Thereafter, when the officer was requested to vacate his accomodation on completion

10 10 of two months period, he failed to do so. He was cautioned that he was liable to be charged damage rate of rent after that period, i.e., as he would be in unauthorised occupation of the said premises from that date onwards. Since the officer did not vacate the accommodation despite repeated requests, the Station Commander ordered that he be charged damage rate of rent from The respondents in their reply statement also averred that this is in line with the judgement of the Hon ble Supreme Court in the case of UOI vs Wg.Cdr.RR Hingorani (Retd) (AIR 1987)(SC 808) wherein the Apex Court held that the damage rent is an absolute liability when a Government servant retained Government accommodation beyond the permissible period and becomes an unauthorised occupant. By failing to shift to an alternate family accommodation which he was permitted, as early as on 13 April 2004, the petitioner became an unauthorised occupant with effect from 17 September 2004, and, therefore, the charging of damage rent from the officer is just and legally tenable. Even though he was liable to be charged damage rent from , the actual charge of damage rent was from 19 October 2004 till he finally vacated Government Quarters on In view of the foregoing, the petition be dismissed as lacking in merit. 10. We have examined the arguments made by both the parties. 11. Point No.1 & 2: SAO 10/S/86 as amended, is the basic document in which all allocations of married accommodation are governed in the Army. While the SAO talks of peace stations and field stations, there is no mention of a hard non-military station.

11 11 Further, what constitutes a field area or peace area has not been defined. MOD letter No.6731/SFA/DGNCC/ADM(A-2)4727/D(Q&C) dated provides the basis for allotment of accommodation to NCC officers posted to hard non-military stations. However, herein again, hard non-military station has not been defined. The Army HQ vide Additional Directorate General Lands, Works and Environment, Quartermaster General s Branch letter No.22389/Q-3(B-1) dated 07 June 1999 provides further guidance on Retention of Accommodation. We have examined all orders and letters pertaining to accommodation produced before us. 12. As stated earlier, the definition of a field area and a modified field area has not been given in the SAO. However, GoI, vide its letter No.37269/AG(PS-3(a)/90/D(Pay Services) dated 17 January 1994 has defined field areas and modified field areas as under:- Field Area: Field Area is an area where troops are deployed near the borders for operational requirements and where imminence of hostilities and associated risk to life exists. Troops in such areas are located for reasons of operational considerations alone and are not living in Cantonments. Modified Field Area: Modified Field Area is an area where troops are deployed in support of Combat echelons/troops in an operational support role. Degree of operational readiness is slightly lower than that in Field Area, though sustained surveillance continues.

12 Personnel posted to a field area/modified field area, have been given a large number of concessions known as field service concessions. These include monetary allowances, LTC, amongst others. Further, physical casualties in these areas are treated differently with more liberalized pensionary benefits as compared to similar occurrences in a peace area. Since field areas are close to borders, risk-prone and lacking of military garrisons for family accommodation, certain concessions with regard to married accommodation have been provided in SAO/10/S/86. These are extracted as follows:- Para 106: Authorisation only officers posted to field/modified field areas are authorised for allotment of separated family accommodation as laid down in AO 191/79. Para 107: Service officers posted on deputation to the Assam Rifles if employed in OP Areas or non-family stations can also apply for allotment of separated family accommodation. Para 108: Allotment. At certain stations accommodation has been specifically constructed or hired for separated families of officers posted to field service areas. The allotment of separated family accommodation for officers posted to field service areas will be made as per procedure laid down in AO 191/79. Para 109: Surplus Accommodation. In cases where accommodation is surplus to the requirement of separated families, it may unless reappropriated as regular married accommodation be allotted on a temporary basis to officers serving in the station. Para 110: Option Available: Officers posted to field service areas have the following options:-

13 13 (a) Send their families at Government expense to a selected place of residence; or (b) Select any one of the separated family station listed at Appendix E for hiring of accommodation for separated families or to stations where accommodation has been specifically constructed for them and to move the family to that station at Government expense; or (c) To retain family accommodation at the last duty station with the permission of the Station Commander or the allotting authority. Para 111: Permissible Period: Officers who opt to send their families to the selected place of residence would be required to exercise the option within a period of two months from the date of the posting to such an area. In cases where the concessions of free conveyance to a selected place of residence is elected, the family could, depending upon the circumstances, be permitted to retain the accommodation upto a period of six months from the date of posting of the officer. The time limit of two months might, however, be extended to three months in individual cases, by the Station Commander, where for special reasons, such an extension is justified. If the concession of free conveyance is, however, not availed of within a period of six months, the lien of free conveyance will lapse. 14. The term hard non-military station appears in MOD letter No.6731/SFA/DG NCC/Admn(A-2)/4727/D(Q&C) dated This letter pertains to provision of married accommodation for service officers, NCC full time officers and PT staff posted to NCC at hard non-military stations. Even though this letter too does not provide definition of non-military station, however, it can be deduced that hard non-military

14 14 stations are those stations with inadequate Government accommodation and lacking in good educational institutions such as schools and colleges. Vide the letter quoted ibid, the Government has made the following concessions with regard to married accommodation for officers posted to hard non-military stations:- 1) I am directed to convey the sanction of the President to the provision of separated family accommodation to service officers, NCC Whole Time Officers and JCOs/NCOs posted to hard non-military stations listed at Appendix A in accordance with the laid down procedure and norms relating to allotment of separated family accommodation hiring/rent reimbursement as per SAO 10/S/86, subject to the following stipulations. While posted at hard military stations, officers and JCOs/NCOs of this category may be:- (a) allotted separated family accommodation at the last duty station till completion of their tenure at the hard non-military station (b) if such separated family accommodation is not available, allotted hired accommodation or allowed to hire houses at last duty station on rent reimbursement basis. The above provisions are akin to the provisions made for officers posted to field areas but do not cover the entire range of options as envisaged in SAO/10/S/ From the above discussion, we are inclined to accept the plea of the applicant that a hard non-military station is not a field area in any sense and is actually a peace station which lacks adequate facilities in terms of accommodation, schools and colleges and, therefore, is classified as hard non-military station for the purpose of accommodation.

15 Retention of Accommodation on Children s Education Grounds is an established principle in several Government Services. Relevant provisions of SAO 10/S/86, regarding Retention of Family Accommodation at the Last Duty Station on the Grounds of Children Education are given below:- 70. Service officers on transfer from one peace station to another can retain family accommodation on payment of normal rent at their last duty station upto the end of the current school/college academic year of their children even if married accommodation is/becomes available for allotment to the officer at the new duty station, subject to the following stipulation: (a) No married accommodation at the new duty station remains vacant during the period; (b) The officer will not be eligible to rent free single accommodation and allied services at the new duty station for the period he retains family accommodation at the last duty station on account of children education. 71. Service officers posted out from one peace station to another can retain family accommodation at the previous duty station till the end of the current academic year of the professional/technical courses of the children, subject to the following conditions in addition to those mentioned against para 70(a) and (b):- (a) Retention will be permitted only in respect of those professional/technical courses which are conducted by Government institutions on a regular basis or have been recognised by the Ministry of Education as regular courses. (b) Retention of accommodation would under no circumstances be permitted beyond one academic year of the child.

16 16 (c) This concession will be admissible only if no hostel accommodation is available in the institution conducting the course and a certificate to this effect has been produced from the Head of the institution. 17. Army Headquarters letter No.22389/Q-3(B-1) dated 07 June 1999 provides further guidance on Retention of Accommodation. Relevant paras are extracted below: Para 3: On transfer from one peace station to another: (a) Automatic retention of same accommodation is permitted for 10 days only from the date of handing over charge. For any further retention permission of Station Commander is a pre-requisite. (b) The above retention of same accommodation beyond 10 days can be extended in terms of Para 65 of SAO 10/S/86. (c) Officer is entitled to retain accommodation (not necessarily the same) on children education ground (CEG) or non-availability of accommodation basis (NA) provided he has exercised an option in terms of Para 74 of SAO. During this period of two months officer is entitled to retention of same accommodation. Para 6: On Posting from Peace to Fd: Officers posted to field areas are entitled to SF accommodation and must exercise this option under Para 110 of SAO 10/S/86. They are not entitled to retention of accommodation on CEG or NA basis. However, CEG must be given due consideration when officer is being shifted from regular accommodation to SF accommodation so that exams of children are not hampered.

17 17 We further note that the facility to retain accommodation on Children s Education Ground (CEG) is not available to officers posted from peace to field, though, even in their case, CEG must be given due consideration when officer is being shifted from regular accommodation to SF accommodation so that exams of children are not hampered. It is also pertinent to note that in the above quoted letter, no separate restriction has been made for officers posted to hard non-military stations, reinforcing our impression that hard non-military station is equated to peace station. Only officers posted to field areas from peace stations are not entitled to retain accommodation on CEG. 18. Therefore, from the above examination, we note that in the present case, the applicant was posted from Secunderabad, a peace/difficult station to Hubli, a hard nonmilitary station. A hard non-military station is not a field area. It is, for all practical purposes, a peace station. Officers posted to such stations (hard non-military stations) have been provided with certain entitlements with regard to family accommodation, owing to the peculiar difficulties and circumstances in such stations. While such provisions are similar to provisions for officers posted to field areas, it does not restrict their entitlement to retain married accommodation on Children s Education Grounds as envisaged at para 70 and 71 of SAO 10/S/86. The specific restriction of para 6 of Army Headquarters Letter No.22389/Q3(B-1) dated 7 June 1999 regarding entitlement of retaining accommodation on grounds of CEG is limited to officers posted to field areas

18 18 only and can not be deemed to be applicable to officers posted to hard non-military stations. We therefore find that officers posted to hard non-military stations are entitled to retain accommodation in the previous duty station on children s education grounds under the provisions of Paragraphs 70 and 71 of SAO 10/S/ Point No.3 & 4: In view of the foregoing, the applicant is entitled to retention of married accommodation on children s education grounds as he was posted from Secunderabad, a peace station to a hard non-military station which is also a peace station. Therefore, Station Commander, Secunderabad should have considered the officer s application for retention of married accommodation on education grounds favourably. Since Secunderabad is a difficult station as defined in Paragraph 69 of SAO 10/S/86, the Station Commander was well within his rights to provide an alternate accommodation to the officer within the same station which could be a similar government accommodation or a government-hired accommodation. It was not done. Instead, the Station Commander, in this case, refused to grant permission to the officer to retain the accommodation (not necessarily the same accommodation) on Children s Education Grounds. This is contrary to the provisions and spirit of Paragraphss 70 and 71 of SAO 10/S/86. Furthermore, an order of charging damage rent was passed and was collected from the applicant. Since the refusal of order itself is not sustainable the charging and collection of damage rent is also not as per rules and is, therefore, liable to be set aside.

19 In fine, T.A No.05/2013 is allowed. Consequently, M.A.No.08/14 is closed. 21. We direct the respondents to charge the officer normal rate of rent for occupation of House NO.53-C, Malhotra Enclave, Secunderabad for the period to as applicable. Damage rate of rent charged and collected against the officer shall be reimbursed to the officer within three months from the date of this Order. In default, an interest at 12% per annum shall be paid by the respondents from that date. No order as to costs. Lt.Gen.K.Surendra Nath Member (Administrative) Justice V.Periya Karuppiah Member (Judicial) Member(J) Index : Yes/No Member (A) Index : Yes/No Internet : Yes/No Internet : Yes/No ap

20 20 To 1. The Union of India Through the Secretary Ministry of Defence Government of India, New Delhi The Chief of Army Staff Army Headquarters New Delhi The Station Commander Station Headquarters Secunderabad, Andhra Pradesh 4. The Deputy Director General, NCC General Choudhary Road Secunderabad 5. The Assistant Accounts Officer O/o Barrack Stores Officer (South) Secunderabad, Andhra Pradesh 6. The Controller of Defence Accounts (Officers) Pune -1, Maharashtra 7. Col. M.V.Moogi Director, NCC Directorate Secunderabad, Andhra Pradesh 8. Mr. B. Shanthakumar, SPC For Respondents. 9. OIC/Legal Cell, ATNK & K Area, Chennai Library, AFT/RBC, Chennai.

21 21 Hon ble Justice V.Periya Karuppiah (Member-Judicial) AND Hon ble Lt.Gen.K.Surendra Nath (Member -Administrative) T.A.No.05 of 2013 and M.A.No 08 of 2014 Dated: `