Allowing 'Kashmiri Migrant' Retired Govt. Employees To Retain Govt. Accommodation For Indefinite Long Period Unconstitutional: Supreme Court

The Supreme Court held that a government employee who is a Kashmiri Migrant cannot retain Government accommodation for a period exceeding three years.

The Court held that the Office Memorandum allowing the retired Government employees who are Kashmiri Migrants to retain Government accommodation for indefinite long period is unconstitutional for being as being totally arbitrary and discriminatory.

There cannot be any justification on the basis of social or economic criteria to allow the Kashmiri Migrants to stay in Government accommodation for indefinite long period, the bench of Justices Hemant Gupta and AS Bopanna observed. The bench observed that  

Recently, the court had set aside a Punjab and Haryana High Court order allowing a retired Intelligence Bureau Officer to retain Government accommodation. 

In this case, the court was considering some miscellaneous applications seeking recall of certain orders passed by the Court. The court noticed an office memorandum allowing government accommodation to the retired Government employees who are Kashmiri Migrants. In this regard, the court made the following observations:

Classification Discriminatory

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 spouse..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 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 Kashmiri Migrants to stay in Government accommodation for indefinite long period.

Totally arbitrary and discriminatory

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. 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 and discriminatory.

The court noted that in Para 2(ii) of the Scheme, Kashmiri Pandits were to be 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 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. 

Cooling off period 

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 to occupy the Government accommodation for indefinite period.

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