Supreme Court Limits Government Accommodation for Kashmiri Migrants: Union of India vs. Omkar Nath Dhar (2021)

Introduction

Date of the Judgment: 7 October 2021

Citation: 2021 INSC 722

Judges: Hemant Gupta, J. and A.S. Bopanna, J.

Can the government provide indefinite housing to retired employees, particularly those who are Kashmiri migrants? The Supreme Court of India addressed this question in a recent judgment, clarifying the extent to which the government is obligated to provide housing to retired employees who are Kashmiri migrants. The core issue was whether a policy allowing retired Kashmiri migrant government employees to stay in government housing indefinitely was constitutional. The Supreme Court, in this case, has set a limit of three years for such accommodation, balancing the needs of the retired employees with those of serving government officers. This judgment was authored by Justice Hemant Gupta.

Case Background

The case involves multiple applications by retired Central Government employees, who are also Kashmiri migrants, occupying government accommodations in Delhi and the National Capital Region (NCR). These individuals were relying on a policy framed by the Central Government on 28 March 2017, which was later modified on 19 May 2017. This policy was a result of directions from the Delhi High Court in the case of Union of India v. Vijay Mam. The policy aimed to provide alternate accommodation to retired Central Government employees from Jammu & Kashmir who were holding General Pool Residential Accommodation (GPRA) in Delhi, subject to certain conditions.

The policy initially favored those who were litigants in the Delhi High Court case but was later extended to all retired Central Government employees from Jammu & Kashmir holding GPRA in Delhi. The key conditions included being a permanent resident of Jammu and Kashmir (excluding Ladakh and Kargil), having been transferred from Srinagar to Delhi after 1 November 1989 due to security reasons, and not having any other residence in any part of the country. The policy initially allowed for retention of quarters in Delhi for five years post-retirement, then shifting to NCR, and later allowed them to hold the quarters until their demise or the demise of their spouse.

Timeline

Course of Proceedings

The Delhi High Court, in Union of India v. Vijay Mam, directed the Central Government to formulate a rehabilitation scheme for retired employees from Jammu & Kashmir. This led to the Office Memorandum of 28 March 2017, which was later modified on 19 May 2017. The initial scheme was limited to those who were litigants in the High Court but was later extended to all retired Central Government employees from Jammu & Kashmir holding GPRA in Delhi. The High Court had previously dismissed an intra-court appeal against the directions issued by a Single Bench. The matter then reached the Supreme Court.

Legal Framework

The case primarily revolves around the interpretation of Article 14 of the Constitution of India, which guarantees equality before the law. The Supreme Court examined whether the policy of providing indefinite government accommodation to retired Kashmiri migrant employees was in line with this principle. The court also considered the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, which deals with the eviction of unauthorized occupants from public premises.

Arguments

The applicants, represented by Mr. Bimal Roy Jad, argued that Kashmiri migrants form a distinct class due to being victims of terrorism and facing unique hardships. They contended that the directions in J.L. Koul, which provided protection to 31 Kashmiri migrants, should be extended to all similarly situated individuals. They argued that the scheme was framed with a humanitarian approach to address the problems faced by Kashmiri migrants, who cannot return to their native places due to prevailing conditions. They also argued that the judgments referred to by the Court in its previous order, such as Lok Prahari, S.D. Bandi, and Shiv Sagar Tiwari, were not applicable to the displaced Kashmiri migrants.

The Union of India, represented by Ms. Madhavi Divan, argued that the government has provided various benefits to Kashmiri migrants, including financial assistance, packages for repairs and renovations, jobs, and ration. They pointed out that with the abrogation of Article 370, many Kashmiri migrants have started returning to the Kashmir Valley. They also highlighted that the government is constructing transit accommodations for Kashmiri migrants employed in the valley and provides cash relief as well. The Union contended that the government accommodations are meant for serving officers and cannot be a recourse for retired employees for an indefinite period.

Issues Framed by the Supreme Court

The Supreme Court did not explicitly frame issues in a separate section. However, the main issue that the court addressed was:

1. Whether the policy of allowing retired Kashmiri migrant government employees to retain government accommodation indefinitely is valid under Article 14 of the Constitution of India.

The sub-issue that the court dealt with was:

1. Whether the directions in J.L. Koul were under Article 142 of the Constitution of India.

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues:

Authorities

The Supreme Court considered the following authorities:

Judgment

The Supreme Court dismissed the applications, upholding its previous order of 5 August 2021. The Court held that the Office Memorandum allowing government accommodation to retired Kashmiri migrants could not meet the touchstone of Article 14 of the Constitution. The Court found the policy to be arbitrary and discriminatory, as government houses are meant for serving employees, and retired employees, including Kashmiri migrants, receive pensionary benefits.

The Court also clarified that the directions in J.L. Koul were not under Article 142 of the Constitution but were a compassionate view to alleviate the difficulties faced by Kashmiri migrants. The Court emphasized that such compassion cannot be extended indefinitely and must be balanced with the needs of serving officers.

The Court struck down the Office Memorandum as arbitrary and discriminatory. It allowed Kashmiri migrants to retain government accommodation for a period of three years from the date of retirement, within which they must make alternative arrangements. If alternative accommodation is not available, they can move to transit accommodation or avail cash compensation.

The Court considered the following authorities:

• Union of India v. Vijay Mam [2012 SCC OnLine Del 3218]: The Delhi High Court’s judgment was the basis for the government’s policy on providing alternate accommodation to retired Kashmiri migrant employees. The Supreme Court noted that the High Court’s order had not been approved by the Supreme Court in its previous order dated 5.8.2021.
• J.L. Koul: The Supreme Court clarified that the directions in this case were not under Article 142 of the Constitution but were a compassionate view to alleviate the difficulties faced by Kashmiri migrants. The Court emphasized that the compassion could not be extended in perpetuity.
• Lok Prahari, S.D. Bandi, and Shiv Sagar Tiwari: The Court distinguished these cases, noting that they arose in different circumstances and were not applicable to the displaced Kashmiri migrants.

“The compassion could not be extended in perpetuity and has to end some day or the other.”

“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 spouse.”

“Thus, we are unable to uphold the Office Memorandum and strike it down as being totally arbitrary and discriminatory.”

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the need to balance the humanitarian concerns of Kashmiri migrants with the administrative requirements of providing housing to serving government employees. The Court emphasized that government accommodations are primarily meant for serving officers and cannot be indefinitely occupied by retired employees, even if they are Kashmiri migrants. The Court also considered the financial implications of providing indefinite housing and the need for equitable distribution of resources. The Court also noted that the government has already provided various benefits to Kashmiri migrants, and indefinite housing cannot be an additional entitlement. The Court was also influenced by the fact that the policy was arbitrary and discriminatory, violating Article 14 of the Constitution.

The Court also considered that the scheme approved by it contemplated cash compensation towards rental and incidental expenses if transit accommodation was not available.

Logical Reasoning

Key Takeaways

• Retired Kashmiri migrant government employees are not entitled to retain government accommodation indefinitely.
• They are allowed to retain government accommodation for a period of three years from the date of retirement.
• After three years, they must make alternative arrangements, either by moving to transit accommodation or availing cash compensation.
• The government policy allowing indefinite retention of government accommodation was struck down as arbitrary and discriminatory.
• The judgment balances the humanitarian concerns of Kashmiri migrants with the administrative requirements of providing housing to serving government employees.

Directions

The Supreme Court extended the time granted to Omkar Nath Dhar’s legal representatives to vacate the premises until 30 November 2021. The Union of India was directed to file an action taken report on or before 15 December 2021. The Union was also given the liberty to file an application for modification of the order in respect of the 31 retirees covered by the judgment in J.L. Koul.

Development of Law

The ratio decidendi of the case is that government accommodations are primarily meant for serving employees and cannot be retained indefinitely by retired employees, even if they are Kashmiri migrants. This judgment clarifies that any policy allowing indefinite retention of government accommodation by retired employees is arbitrary and discriminatory and violates Article 14 of the Constitution. This case also clarifies that the directions in J.L. Koul were not under Article 142 of the Constitution but were a compassionate view to alleviate the difficulties faced by Kashmiri migrants and such compassion cannot be extended in perpetuity.

Conclusion

The Supreme Court’s judgment in Union of India vs. Omkar Nath Dhar sets a clear limit on the government’s obligation to provide housing to retired Kashmiri migrant employees. The Court struck down the policy allowing indefinite retention of government accommodation, ruling it arbitrary and discriminatory. The Court allowed a three-year period post-retirement for such employees to make alternative arrangements, balancing the needs of the retired employees with those of serving government officers. This decision reinforces the principle that government accommodations are primarily for serving employees and that compassion cannot be extended indefinitely.