1. This Application is directed against Office Memorandum dated 9.11.2011 whereby the Applicant’s request for change of his quarter has been turned down for the reason that he has already availed the change for the same type earlier.
2. The Applicant, who has been working as Technical Assistant in Kalawati Saran Children’s Hospital (KSCH), was initially allotted Quarter No.9, Telegraph Square on 13.1.2004. He sought change of it on the ground of seepage damaging the wall in December, 2005 and asked for Quarter No.10, Telegraph Square in change, which was allotted to him. He has now sought a change to Quarter No.46 at Telegraph Square on twin grounds of it being improper and causing inconvenience to his family members and he being a cancer patient, he is required to live in hygienic and infection free atmosphere as he is prone to infections. However, his request has been turned down for the reason that he has already sought change once and rules do not provide any further change for the same type of quarter. The Applicant seeks to make out a case for non-applicability of the rules, as the change he is seeking now is not a matter of choice but a compulsion on account of his illness warranting living in hygienic conditions. Feeling aggrieved, he has filed the present Application seeking directions, inter alia, to the respondents to consider his case for allotment of Quarter N0.46 at Telegraph Square on the ground of compassion.
3. The Applicant’s claim has been controverted by the respondents no.1 and 2 in their counter reply wherein a preliminary objection has been raised that the Applicant has approached this Tribunal without exhausting the available departmental remedy, as he has not made any representation against the impugned OM informing the Applicant about his ineligibility for change of accommodation as per the rules. It has further been submitted that change of Government residential accommodation is regulated by Supplementary Rules 317-B-1 to 26. SR 317-B-15 (1) provides as follows:-
'An officer to whom a residence has been allotted under these rules may apply for a change to another residence of the same type or a residence of the type to which he is eligible under SR 317-B-5, whichever is lower. Not more than one change shall be allowed in respect of one type of residence allotted to the officer.'
4. The respondents claim that the Applicant’s case has been dealt wit strictly as per the provisions of SR 317-B-15. It has further been submitted that the grounds on which the change is sought by the applicant relates basically to maintenance issue and the Applicant’s present Quarter and the Quarter to which the change is sought are of the same type in the same lane. There is hardly any positional change in the two quarters.
5. In the meantime, the said Quarter seems to have been allotted to respondent no.3 which has also been challenged by the applicant. The respondent no.3 has also filed her reply claiming that the matter has been duly dealt with by the official respondents as per the Rules and the Applicant’s claim is devoid of substance and liable to be dismissed accordingly.
6. The Applicant has filed rejoinder to the respondent’s counter reply strongly contending that earlier change sought by him should not come in the way of his present request of change for it being a matter of necessity and not of volition. In para 7 of the rejoinder, the Applicant has stated the medical reasons warranting change of his quarter as follows:-
'That the bad hygienic condition of the quarter which the applicant is occupying gets further compounded given the fact that the applicant had to have his Colon removed, has been loaded with a colostomy bag to carry the faecal material that gets accumulated and requires physical cleaning as opposed to biological cleaning of rectum which naturally takes place. The colostomy bag has to be changed at least once a week thereby requiring opening of the stoma site which is like a wound, every time the bag is changed, this opening exposes the wound to a far greater risk of catching infections. This difference makes the applicant far more vulnerable. This is an additional reason for considering that the Q. No.10 is not livable for the applicant. Seeking change to livable house in these circumstances would not be change in the sense the word has been used in the clause restricting the number of changes to one. The principle of equity can not be lost sight of, nor the ideas that permit identifying of classes for differential treatment to ensure equality which is a part of Article 14 of the Constitution of India. Compassion where warranted, if denied may amount to infringement of right to Equality. The change being sought by the applicant is not a matter of choice for him but a matter of ardent need. Denying the change may amount to forcing the applicant to surrender the accommodation, given the fact that he is in-charge of 24 hour Emergency Laboratory, if he is forced to shift away that will be not only damaging to the interest of the applicant but also will have ramifications that will adversely affect the larger interest of the patients which is purpose for which the hospital is meant.'
7. Admittedly when Applicant applied for change of accommodation in response of Office Circular dated 24.8.2011, the primary reason ascribed for change of quarter has been that the present quarter is not livable and its toilet are over flooded in rainy season and all the rooms of the quarter over flooded almost whole year. Reference to the Applicant being a cancer patient and necessity of hygienic accommodation was also made in a passing reference. Admittedly, the Applicant has not made any further request to the respondents after issuance of impugned Memorandum. The reason as given by the Applicant in this regard is that he was personally informed of the rejection of his request of change of accommodation even before issuance of impugned Memorandum which prompted him to make a representation through proper channel in the matter on 4.5.2011.
8. The allotment of residences under the administrative control of the Directorate of Estate to officers employed in eligible offices who are required to reside on duty in Delhi with the Government of India or the Delhi Administration is regulated by Allotment of Government Residences (General Pool in Delhi) Rules, 1963 as contained in Supplementary Rule 317-B-1 to 26. Change of residence is being dealt with in Supplementary Rule 317-B-15, the relevant portion of which has already been referred to hereinabove, clearly providing that not more than one change would be allowed in respect of one type of residence allotted to the officers under the Rules. Supplementary Rule 317-B-24 further provides that if any question arises as to the interpretation of the rules in this Division, it shall be decided by the Central Government. Obviously the question now being raised by the Applicant has not been referred to the Central Government for their decision as to what is meant by change in Supplementary Rule 317-B-15. Besides, under Supplementary Rule 317-B-25, the Government is empowered for reasons to be recorded in writing to relax all or any of the provisions of the rules in this Division in the case of any officer or residence or class of officers or type of residences. The Applicant’s counsel fairly conceded that the applicant has not made any request for relaxation of rules, particularly, Supplementary Rule 317-B-15 regarding not more than one chance for change of residence. Further Supplementary Rule 317-B-26 provides for delegation of powers or functions by the Government to any officer under its control subject to such conditions as it may deem fit to impose.
9. In the aforesaid premises, we find force in the respondent’s preliminary objection that the applicant has filed this Application without exhausting all available departmental remedies to him in the matter which he ought to have done. The medical conditions warranting change of accommodation necessarily in the interest of applicant’s life safety and health have not been duly placed by the Applicant before the authority competent to relax the rules. In all fairness, the Applicant should have made a request for relaxation of the provisions of Rule 317-B-15 with regard to permissible chances for seeking change in residences. The respondent’s counsel fairly
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conceded that had such a request been made, the same could have been given due consideration by the authority concerned. 10. In these circumstances, the learned counsel for the applicant seeks to withdraw the present Application with the liberty to make necessary request for relaxation of the rules in view of his medical conditions for consideration of the authorities concerned whereupon he may seek further redressal, if any grievance still survives. 11. In these premises, and on a consensual basis, this Application is disposed of by according leave to the applicant to make representation in the matter to the concerned official who shall decide it expeditiously, preferably within a period of three months of its receipt, having due regard to the merits of the case and the applicable rules. 12. In view of the above, the present Application is dismissed as withdrawn with liberty as prayed for by the applicant.