Hon'ble Rajan Roy,J.
(Per: Rajan Roy, J.) Heard Sri Jaideep Narain Mathur, learned Senior Advocate assisted by Sri Pranav Agrawal, learned counsel for the petitioner, Sri Ramesh Kumar Singh, learned Additional Advocate General along with Sri Rakesh Bajpai and Sri Tushar Verma, learned counsel, for the State of U.P.
The petitioner before this Court is the Lokayukta of Uttar Pradesh. He has challenged an order dated 03.12.2017 by which an earlier order dated 08.06.2016 allotting him a Type-VI accommodation at Gautam Palli Colony, Lucknow has been cancelled and in its place a lower category i.e. Type-V accommodation, has been provided to him at the Butler Palace Colony at Lucknow subject to the terms and conditions mentioned in the said order which includes the payment of rent as per the Rules applicable.
Sri Jaideep Narain Mathur, learned Senior Advocate appearing for the petitioner contended that after the petitioner's appointment as Lokayukta under Section 3 of the Act, 1975 vide order dated 29.01.2016 and on his joining on the said post on 31.01.2016, he was allotted House No. 22 in the Government Colony, Gautam Palli at Lucknow, which, on his request, was changed vide order dated 08.06.2016 and in its place he was allotted another House bearing No. 21 of the same category situated in the same colony, free of rent. However, to the utter surprise of the petitioner, on 03.12.2017, the impugned order was passed under the signatures of the Special Secretary and Estate Officer of the Government of U.P. cancelling the earlier allotment and in its place allotting another accommodation of an lower category in gross violation of Section 5(5) of the Act, 1975 read with Rule 10 of the Rules, 1981 in a most arbitrary and whimsical manner.
The contention of Sri Mathur was that the conditions of service of the Office of Lokayukta of Uttar Pradesh are governed by Section 5(5) of the Uttar Pradesh Lokayukta and Up-Lokayukta Act, 1975 (For short ''the Act, 1975) read with Rule 10 of the Uttar Pradesh Lokayukta (Conditions of Service) Rules, 1981 (For short ''the Rules, 1981). Accordingly, as no express provision had been made in the Act, 1975 and the said Rules, 1981 with regard to provision of official residence and other facilities, in view of Rule 10 of 1981, these would be available to him as admissible to the Chief Justice of the High Court.
He also invited the attention of the Court to Paragraphs 7, 8 and 9 of the counter affidavit filed on behalf of the State to contend that none of the provisions of the Rules known as Allotment of House under Control of the Estate Department Rules, 2016 (For short ''the Rules, 2016) mentioned therein i.e. Rule 11(2), 23 and 24, were applicable nor was the Lokayukta, a ''Chairman or Member of any Commission under the State Government' as had been averred therein. The Lokayukta was an independent authority appointed for the purposes mentioned in the Act, 1975. In this regard, he invited the attention of the Court to Annexure No. 7 to the writ petition which is an order of the State Government dated 27.11.1978 admitting to the fact that the Lokayukta was an independent statutory body which was not under the control of the State Government. He also invited the attention of the Court to Annexure No. 8 which is another Government Order dated 22.07.2009 reiterating the legal position as regards the entitlement of the benefits and facilities to the Lokayukta as are admissible to the Chief Justice of the High Court.
He also invited the attention of the Court to an interim order passed by this Court on 20.12.2017 wherein the learned Additional Advocate General had assured the Court that he shall personally look into the matter and appropriately advise the State Government, yet, the State Government did not revisit the order. He also dwelt upon the importance of the high office of Lokayukta, the senstivity and sanctity attached to it and the blatant attempt by the State Government to belittle the same by the impugned order, illegally and arbitrarily.
Sri Ramesh Kumar Singh, learned Additional Advocate General of the State of U.P. contended that subsequent to the enactment of the Act, 1975 and the Rules made thereunder which are of 1981, the State Government had promulgated an Act known as the Allotment of Houses under Control of the Estate Department Act, 2016 (For short ''the Act, 2016') to regulate allotment of houses under the control of Estate Department to the employees and officers of the State Government, Employees Association etc. including ''Justices'. He invited the attention of the Court to Section 4 of the said Act to contend that status of the Lokayukta was akin to that of Chairman/Member of statutory Commission under the State Government, therefore, as per Serial No. 5 of the table mentioned therein he was entitled to Type-V official accommodation but as he had been earlier granted Type-VI accommodation, therefore, the impugned order was passed rectifying the error. He also invited the attention of the Court to Rule 5(vii) of the Rules, 2016 to contend that as per the said provision the Chairman/ Member of a statutory Commission under the State Government is to be allotted Type-V house on such terms and conditions as may be determined by the Government, therefore, according to him the Lokayukta was only entitled to the said benefit. He also invited the attention of the Court to Rule 11(2) of the said Rules to contend that the allottee, who is already in occupation of Government house of a type higher than his entitlement prior to commencement of these Rules, will be allowed the option to change over according to his entitlement. He will continue to be charged as prescribed rent if he is not alloted house of his entitlement. In case allotment as per entitlement is not accepted then damages will be charged. He submitted that this provision has been invoked to pass the impugned order. He also referred to Rule 23 and 24 to contend that if any question arises as to interpretation of these Rules the interpretation given by the State Government would be final and binding and revision against the orders passed by the Estate Officer shall be submitted to the Secretary-in-Charge of the Estate Department of the State Government which had not been done. However, in all fairness, during the course of arguments, when the provisions of Rule 22 of the Rules, 2016 were pointed out to him, he admitted to its applicability in the matter but expressed his helplessness in view of the stand as is revealed in the counter affidavit which he had been asked to take by the State Government.
The moot point in this petition is as to the validity of the impugned order dated 03.12.2017 and whether it is sustainable in view of the provisions contained in Section 5(v) of the Act, 1975 read with Rule 10 of the Rules, 1981 and/ or the provisions contained in the Act, 2016 and the Rules, 2016 specially Rule 22 thereof ?
The facts which are not in dispute are that the petitioner herein was appointed as Lokayukta of Uttar Pradesh on 29.01.2016. He joined on the said post on 31.01.2016. As stated earlier he was initially allotted Type-VI house at Gautampalli Colony, Lucknow, which was subsequently changed at his request to another house in the same colony of the same category vide order dated 08.06.2016 of which he took possession on 10.06.2016. The aforesaid allotments were made to him in keeping with the provisions of the Act, 1975 and the Rules of 1981 made thereunder as also the order dated 22.07.2009 contained in Annexure No. 8 to the writ petition. On 03.12.2017, the Special Secretary-cum-Estate Officer U.P. cancelled the earlier order dated 08.06.2016 and allotted another house of a lower category i.e. Type-V to the Lokayukta. It is this order which has been challenged in this petition.
This Court on 20.12.2017 passed the following order inter alia staying the impugned order:-
"Notice on behalf respondent nos.1,2 and 3 has been accepted by the office of learned Chief Standing Counsel.
On behalf of the respondents, learned Advocate General has put in appearance and prays that this matter may be listed in the first week of January, 2018.
We have examined the submissions made by learned counsel for the petitioner and have also gone through the impugned order.
Looking to the provisions contained in Section 5 (5), including second proviso appended to sub-section (5) of Section 5 of Uttar Pradesh Lokayukta and Up-Lokayuktas Act, 1975, Rule 10 of Uttar Pradesh Lokayukta (Conditions of Service), Rules, 1981, Section 4 of Allotment of Houses under Control of the Estate Department Act, 2016 and Rule 22 of Allotment of House under Control of the Estate Department Rules, 2016, we are, prima facie, satisfied that the impugned order dated 03.12.2017 whereby allotment of Type-VI house made to the petitioner has been cancelled, does not appear to be legally sustainable.
At this juncture, learned Advocate General has assured the Court that he shall personally look into the matter and appropriately advise the State Government.
List this case on 04.01.2018, as fresh, on which date, the record from where the impugned order dated 03.12.2017 has emanated shall also be produced.
Till further order of the Court, no eviction of the petitioner from the accommodation in question shall take place."
Before considering the issues involved, it is necessary, even if only for the benefit of the State Authorities, to dwell upon the historical background leading to the creation of the Office of Lokayukta by a Legislative enactment and its importance in ensuring a corruption free and transparent system of Governance and Administration and to emphasis the casual and irresponsible manner in which the State Authorities have acted in this case.
The Supreme Court in the case of Justice Chandrashekaraiah Vs. Janekere C. Krishna and Ors. reported in 2013 (3) SCC 117 while considering the provisions of the Lokayukta Act as applicable in the State of Karnataka had the occasion to consider at length the background of the historical setting of the Lokayukta Act of the State in the following terms:-
"Historical Setting
16. The President of India vide notification No. 40/3/65-AR(P) dated 05.01.1966 appointed the Administrative Reforms Commission for addressing "Problems of Redress of Citizens' Grievances" inter alia with the object for ensuring the highest standards of efficiency and integrity in the public services, for making public administration a fit instrument for carrying out the social and economic policies of the Government and achieving social and economic goals of development as also one responsive to people. The Commission was asked to examine the various issues including the Problems of Redress of Citizens' Grievances. One of the terms of reference specifically assigned to the Commission required it to deal with the Problems of Redress of Citizens' Grievances, namely:
(1) the adequacy of existing arrangements for redress of grievances; and (2) the need for introduction of any new machinery for special institution for redress of grievances.
The Commission after elaborate discussion submitted its report on 14.10.1966 to the Prime Minister vide letter dated 20.10.1966.
17. The Commission suggested that there should be one authority dealing with complaints against the administrative acts of Ministers or Secretaries to Government at the Centre and in the States and another authority in each State and at the Center for dealing with complaints against administrative acts of other officials and all these authorities should be independent of the executive, the legislative and the judiciary.
The Committee, in its report, has stated as follows:
21. We have carefully considered the political aspect mentioned above and while we recognize that there is some force in it, we feel that the Prime Minister's hands would be strengthened rather than weakened by the institution. In the first place, the recommendations of such an authority will save him from the unpleasant duty of investigation against his own colleagues. Secondly, it will be possible for him to deal with the matter without the glare of publicity which often vitiates the atmosphere and affects the judgment of the general public. Thirdly, it would enable him to avoid internal pressures which often help to shield the delinquent. What we have said about the Prime Minister applies mutatis mutandis to Chief Minister.
Cases of corruption:
23. Public opinion has been agitated for a long time over the prevalence of corruption in the administration and it is likely that cases coming up before the independent authorities mentioned above might involve allegations or actual evidence of corrupt motive and favouritism. We think that this institution should deal with such cases as well, but where the cases are such as might involve criminal charge or misconduct cognizable by a Court, the case should be brought to the notice of the Prime Minister or the Chief Minister, as the case may be. The latter would then set the machinery of law in motion after following appropriate procedures and observing necessary formalities. The present system of Vigilance Commissions wherever operative will then become redundant and would have to be abolished on the setting up of the institution.
Designation of the authorities of the institution:
24. We suggest that the authority dealing with complaints against Ministers and Secretaries to Government may be designated "Lokpal" and the other authorities at the Centre and in the States empowered to deal with complaints against other officials may be designated "Lokayukta". A word may be said about our decision to include Secretaries actions along with those of Ministers in the jurisdiction of the Lokpal. We have taken this decision because we feel that at the level at which Ministers and Secretaries function, it might often be difficult to decide where the role of one functionary ends and that of the other begins. The line of demarcation between the responsibilities and influence of the Minister and Secretary is thin; in any case much depends on their personal equation and personality and it is most likely that in many a case the determination of responsibilities of both of them would be involved.
25. The following would be the main features of the institutions of Lokpal and Lokayukta:-
(a) They should be demonstrably independent and impartial.
(b) Their investigations and proceedings should be conducted in private and should be informal in character.
(c) Their appointment should, as far as possible, be non-political.
(d) Their status should compare with the highest judicial functionaries in the country.
(e) They should deal with matters in the discretionary field involving acts of injustice, corruption or favouritism.
(f) Their proceedings should not be subject to judicial interference and they should have the maximum latitude and powers in obtaining information relevant to their duties.
(g) They should not look forward to any benefit or pecuniary advantage from the executive Government.
Bearing in mind these essential features of the institutions, the Commission recommend that the Lokpal be appointed at the Centre and Lokayukta at the State level.
The Lokayukta
36. So far as the Lokayukta is concerned, we envisage that he would be concerned with problems similar to those which would face the Lokpal in respect of Ministers and Secretaries though, in respect of action taken at subordinate levels of official hierarchy, he would in many cases have to refer complainants to competent higher levels. We, therefore, consider that his powers, functions and procedures may be prescribed mutatis mutandis with those which we have laid down for the Lokpal. His status, position, emoluments, etc. should, however, be analogous to those of a Chief Justice of a High Court and he should be entitled to have free access to the Secretary to the Government concerned or to the Head of the Department with whom he will mostly have to deal to secure justice for a deserving citizen. Where he is dissatisfied with the action taken by the department concerned, he should be in a position to seek a quick corrective action from the Minister or the Secretary concerned, failing which he should be able to draw the personal attention of the Prime Minister or the Chief Minster as the case may be. It does not seem necessary for us to spell out here in more detail the functions and powers of the Lokayukta and the procedures to be followed by him.
Constitutional amendment-whether necessary?
37. We have carefully considered whether the institution of Lokpal will require any Constitutional amendment and whether it is possible for the office of the Lokpal to be set up by Central Legislation so as to cover both the Central and State functionaries concerned. We agree that for the Lokpal to be fully effective and for him to acquire power, without conflict with other functionaries under the Constitution, it would be necessary to give a constitutional status to his office, his powers, functions, etc. We feel, however, that it is not necessary for Government to wait for this to materialize before setting up the office. The Lokpal, we are confident, would be able to function in a large number of cases without the definition of his position under the Constitution. The Constitutional amendment and any consequential modification of the relevant statute can follow. In the meantime, Government can ensure that the Lokpal or Lokayukta is appointed and takes preparatory action to set up his office, to lay down his procedures, etc., and commence his work to such extent as he can without the constitutional provisions. We are confident that the necessary support will be forthcoming from the Parliament.
Conclusion.
38. We should like to emphasise the fact that we attach the highest importance to the implementation, at an early date, of the recommendations contained in this our Interim Report. That we are not alone in recognizing the urgency of such a measure is clear from the British example we have quoted above. We have no doubt that the working of the institution of Lokpal or Lokayukta that we have suggested for India will be watched with keen expectation and interest by other countries. We hope that this aspect would also be fully borne in mind by Government in considering the urgency and importance of our recommendation. Though its timing is very close to the next Election, we need hardly to assure the Government that this has had nothing to do with the necessity of making this interim report. We have felt the need of such a recommendation on merits alone and are convinced that we are making it not a day too soon.
A reading of the above quoted extracts of the Commissions Report referred and quoted by the Supreme Court in the above mentioned decision leaves no doubt as to the requirement of an independent and impartial Lokayukta and the importance of the said Office.
It is in keeping with the aforesaid spirit that the Act, 1975 was promulgated by the State Legislature to make provision for the appointment and functions of certain Authorities for the investigation of grievances and allegations against Ministers, Legislatures and other Public Servants in certain cases and for matters connected therewith. The fact that as per Section 3 of the Act, 1975 the appointment of a Lokayukta is to be made after consultation with the Chief Justice of the High Court of Judicature at Allahabad and the leader of the opposition in the Legislative Assembly etc. itself goes to show the importance attached to the Office. A Lokayukta is to function as a sentinel to ensure a corruption free Administration. The other conditions of his office as mentioned in the Act, 1975 also point towards the same.
Section 5(5) of the Act, 1975 reads as under:-
"(5) The allowances and pension, if any, payable to and other conditions of service, of the Lokayukta or an Up-Lokayukta shall be such as may be prescribed :
Provided that in prescribing the allowances and pension payable to, and other conditions of service of -
(a) the Lokayukta, regard shall be had to the allowances and pension payable to and other conditions of service, of the Chief Justice of the High Court;
(b) the Up-Lokayukta, regard shall be had to the allowances and pension payable to, and other conditions of service of a Judge of a High Court:
Provided further that the allowances and pension if any payable to, and other conditions of service of the Lokayukta or an Up-Lokayukta shall not be varied to his disadvantage after his appointment."
Section 21 of the Act, 1975 which contains the rule making power reads as under:-
"21. Powers to make rules. - (1) The State Government may, by notification in the Gazette, make rules for the purpose of carrying into effect the provisions of this Act.
(2) In particular, and without prejudice to the generality of the foregoing provisions, such rules may provide for -
(a) the authorities for the purpose required to be prescribed under sub-clause (ii) of clause (c) of Section 2;
(b) the allowances and pension, if any, payable to and other conditions of service of, the Lokayukta and Up-Lokayuktas;
(c) the form, if any, in which complaints may be made and the fees, if any, which may be charged and the security, if any, for costs of person against whom an allegation is made which may be required to be furnished in respect thereof;
(d) the powers of a civil court which may be exercised by the Lokayukta or an Up-Lokayukta;
(e) any other matter which is to be or may be prescribed or in respect of which this Act makes no provision or makes insufficient provision and provision is in the opinion of the State Government necessary for the proper implementation of this Act.
(3) Every rule made under this Act shall be laid, as soon as may be, after it is made, before each House of the State Legislature while it is in session for a total period of thirty days which may be comprised in one session or in two successive sessions, and if during the said period, the House agrees in making any modification in the rule or the House agrees that the rule should be annulled and notifies such decision in the official Gazette, the rule shall from the date of publication of such notification have effect only in such modified form or be of no effect, as the case may be, so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule."
The Rules, 1981 have been made under sub-section 1 read with Clause (b) of sub-section 2 of Section 21 of the Act, 1975 and Rule 10 thereof which is relevant, reads as under:-
"10. Other condition of service-
Other allowances and conditions of service including rent free official residence or house rent allowance conveyance or conveyance allowance, facilities or medical treatment, travelling and other allowances, general provident fund, gratuity, family pension, dearness allowance, post-retirement leave-enacshment and medical and other facilities of the Lokayukta provisions wherefore have not expressly been made in the Act or these rules, shall be the same as are for the time being applicable to the Chief Justice of the High Court."
When we consider the provisions of the Act, 1975 and the Rules, 1981 as quoted hereinabove, we have no doubt in our mind as no express provision has been made in the Act, 1975 and the Rules, 1981 for official residence or house rent allowance for the Lokayukta, the same are admissible to him in view of Rule 10 of the Rules, 1981 read with Section 5(5) of the Act, 1975, as are admissible to the Chief Justice of the High Court.
As regard the entitlement of the Chief Justice of the High Court to official accommodation is concerned, the same is regulated by the High Court Judges (Salaries and Conditions of Service) Act, 1954. Section 22-A of the said Act reads as under:-
"22A. Facility of rent free houses.-(1) Every Judge shall be entitled without payment of rent to the use of an official residence in accordance with such rules as may, from time to time, be made in this behalf.
(2) Where a Judge does not avail himself of the use of an official residence, he may be paid every month an allowance equivalent to an amount of thirty per cent of the salary."
As per Section 22-A the Chief Justice is entitled, without payment of rent, to the use of an official residence in accordance with such Rules as may, from time to time, be made in this behalf. If he does not avail himself of the use of an official accommodation, he would be paid every month an allowance equivalent to an amount of Rs. 30% of the salary. Section 24(1) and (2)(c-a) of the Act, 1954 empower the Central Government to make Rules by notification in the official gazette, to carry out the purpose of the Act, 1954 and these Rules made by the Central Government are known as The High Court Judges Rules, 1956. Rule 2-A thereof reads as under:-
"2-A. Residence of Judges.- Each Judge who avails himself of the use of an official residence, shall be entitled to without payment of rent to the use of a furnished residence throughout his term of office and for a period of one month immediately thereafter, and no charge shall fall on the Judge personally in respect of the maintenance of such residence. This concession shall also be admissible to the members of the family of a Judge, who dies while in service for a period of one month immediately after his death.
Explanation.- For the purposes of this rule and Rules 2-B and 2-C (A) ''Official Residence' means accommodation owned or taken on hire by requisition or otherwise, by Government and allotted to a Judge free of rent; (B) ''Maintenance' in relation to an official residence, includes the payment of local rates and taxes."
Thus, the Lokoyukta is also entitled to rent free furnished official accommodation as per the aforesaid provision when they are read conjointly with Section 5(5) of the Act, 1975 and Rule 10 of Rules, 1981.
Furthermore, we find that as per the proviso to Section 5(5) of the Act, 1975 the allowances and pension, if any, payable to, and other conditions of service of the Lokayukta shall not be varied to his disadvantage after his appointment. In this case, the petitioner was appointed on 29.01.2016 and was allotted a Type-VI house which was changed by allotting another house of the same category on 08.06.2016, whereas, the Act, 2016 and the Rules, 2016 came into force on 16.09.2016 and 02.01.2017 respectively, therefore, as per the said proviso to Section 5(5), the Type-VI house, validity allotted to him under the Act, 1975 read with Rule 1981 at par with such benefit admissible to the Chief Justice of the High Court, could not have been taken back nor a lower category house be allotted to him, to his disadvantage.
Now, to consider the impact of the subsequent enactments and Rules on the issue involved. On 16.09.2016, the State Legislature promulgated the Act, 2016. The Statement of Object and Reasons of the said Act is quoted herein below:-
"STATEMENT OF OBJECTS AND REASONS The allotment of various types of houses under the control of Estate Department are being made to the employees and officers of the State Government, Employees associations, political parties, journalists, officers of All India Service/ judicial service, Member of Legislative Council, Member of Legislative Assembly, Trusts, Ministers, Chairman/Deputy Chairman of Legislative Council, Speaker/Deputy Speaker of Legislative Assembly and Justices under the provisions of executive rules and in certain cases under the provisions of statutory rules and Acts by the Estate Department as yet. There is no separate law for this purpose. It has, therefore, been decided to make a law to regulate the allotment of the said houses.
The allotment of Houses under Control of the Estate Department Bill, 2016 is introduced accordingly.
By order, Rang Nath Pandey Pramukh Sachiv. "
Section 4 of the Act, 2016 reads as under:-
"4. The eligibility for allotment of houses under control of the Estate Department except the houses earmarked for the Members of Legislative Assembly and Members of Legislative Council, shall be as follows:-
Sl. no.
Type of Houses Eligibility for allotment 01 Type-1 Group-"D" employees working under the State Government.
Type-2 Group- "C" Non gazetted employees working under the State Government.
Type-3 Group- "C" Gazetted employees working under the State Government.
Type-4 Group- "B" officers working under the state Government/Officers of judicial services, journalist, society, recognized association.
Type-5 Minister/State Minister/Deputy Minister, officers of the judicial service and other officers of Group- "A" working under the State Government and the trust working in Uttar Pradesh, Chairman/Member of various statutory commissions under the State Government.
Type-6 and 7 Minister, Former Chief Minister, justices of High Court, senior officers, officers of the higher judicial services and the trust working in Uttar Pradesh.
Explanation:-For the purposes of this section:-
(a) Group- "B" officers means the Section Officers working in the Secretariat or a gazetted officers of the State Government working in the equivalent pay scale.
(b) Group- "A" officers means a Joint Secretary, Special Secretary or Secretary working in the Secretariat or officers of the State Government working in the equivalent pay scale.
(c) Senior officer means the Principle Secretary or any officer working in the equivalent pay scale or higher pay scale."
The Rules of 2016 were made in exercise of powers under Section 9 of the Act, 2016 read with Section 21 of the U.P. General Clauses Act, 1904 and in supersession of all existing Rules, non statutory notifications or orders issued in this behalf. Rules of 2016 were notified in the gazette on 02.01.2017 i.e. after the allotment of a Type- VI house to the petitioner on 08.06.2016. In fact even the Act, 2016 came into force subsequent to such allotment to the petitioner.
Rule 2(b) defines the term "Allottee" to mean an eligible person under Section- 4 in whose favour allotment is to be made or has been made under the provisions of the Act. Rule 3 refers to the procedure for applying for allotment of a house to the Estate Officer. Rule 4 deals with allotment of houses in case of Government Servants. Rule 5(i) and (vii) read as under:-
"5. The allotment of houses in cases other than Government Servants will be as follows:-
(i) The Judges of High Court, Allahabad and other judicial service officers working under the State Government will be alloted house according to the terms and conditions of the Government order number-R-112432-2-06-10/2006 dated 20.02.2007;
(ii)..............
(iii)..............
(iv)...............
(v).................
(vi)...............
(vii) Chairman/ member of various statutory commissions under the State Government will be alloted type 5 houses on such terms and conditions as prescribed may be determined by the Government.;"
As per the opposite parties it is Rule 5(vii) which applies to the petitioner.
Rule 11 of the Rules, 2016 reads as under:-
"11(1). The allottee to whom a house has been allotted shall be personally liable for payment of the rent thereof and for any damage beyond normal wear and tear cause thereto or to the furniture, fixtures or fittings or services provided therein by the Government during the period for which the house has been and remains allotted to him, or where the allotment has been cancelled under any of the provisions of these rules, until the houses along with the out-houses appurtenant thereto have been vacated and full vacant possession thereof has been restored to the Government.
(2) The allottee who is already in occupation of Government house of a type higher than his entitlement prior to commencement of these rules, will be allowed the option to change over according to his entitlement. He will continue to be charged at prescribed rent till he is not allotted house of his entitlement. In case allotment as per entitlement is not accepted then the damages will be charged.
(3) where the allottee to whom a house has been allotted is neither a permanent nor a temporary Government servant, he shall execute a security bond in the form prescribed in this behalf by the State Government with a surety, who shall be a permanent Government servant serving under the State Government or a guarantee by a nationalised bank for due payment of rent and other charges due from him in respect of such house and services.
(4) If the surety eases to be in Government service or becomes insolvent or withdraws his guarantee or ceased to be available for any other reasons, the allottee shall furnish a fresh bond executed by another surety within thirty days from the date of his acquiring knowledge of such event or fact, and if he fails to do so, the allotment of the house to him shall, unless otherwise decided by the Estate Officer, be deemed to have been cancelled with effect from that date of the event."
Power under Rule 11(2) has been exercised to pass the impugned order, a fact which is not only mentioned in the counter affidavit but is also borne out from the original records which have been perused by us.
Rule 22 which has been relied upon by the petitioner reads as under:-
"22. Any valid allotment of a house which is subsisting immediately before the commencement of these rules, under the rules in force at the relevant time, shall be deemed to be an allotment duly made under these rules notwithstanding that the allottee is not entitled to a house of that type and all the provisions of these rules shall apply in relation to the allotment and that allottee accordingly."
Furthermore, at this very stage, before considering the question of applicability or prevalence of the Act, 2016 and the Rules made thereunder over the Act, 1975 and the Rules, 1981, we would like to refer to Rule 22 of the Rules, 2016 made under the Act, 2016, as, we are of the view that, even if all the arguments advanced on behalf of the State are accepted on their face value, though we do not actually do so, even then, the allotment of the house already made to the petitioner prior to coming into force of the Rules on 02.01.2017 and the Act, 2016 on 16.09.2016 stood protected by the said very Rules also, vide Rule 22 thereof, as it is nobody's case that the earlier allotment under the Act, 1975 was not a valid allotment. Rule 22 very categorically provides that any valid allotment of a house which is subsisting immediately before the commencement of these rules, under the Rules in force at the relevant time, shall be deemed to be an allotment duly made under these rules notwithstanding that the allottee is not entitled to a house of that type and all the provisions of these Rules shall apply in relation to the allotment and that allotment accordingly.
As per long title of the Act, 2016 it was passed by the State Legislature to regulate the allotment of houses under the control of Estate Department to the employees and officers of the State Government, Employees associations, political parties, journalists, officers of All India Service/judicial service, Member of Legislative Council, Member of Legislative Assembly, Trusts, Ministers, Chairman/Deputy Chairman of Legislative Council, Speaker/Deputy Speaker of Legislative Assembly and Justices. We may point out at this very stage that the said Act does not in any manner repeal any provision of the Act, 1975 or the Rules made thereunder pertaining to the conditions of service of Lokayukta and as is evident from the Statement of Objects and Reasons, and the long title/ preamble of the said Act, 2016 and the provisions contained therein, it does not apply specifically and directly to the Office of the Lokayukta. The Lokayukta is not an ''Officer' within the meaning of said term as defined in Section 2(e) of the Act, 2016. He does not fall in any of the definitions contained in the definition clause of this Act. The Act, 1975 is a special Act pertaining to the Lokayukta, the allowance and pension payable to him and other conditions of service. But the Act, 2016 does apply to ''Justices', therefore, assuming that the office of the Chief Justice is included in the term "Justices" used in the said enactment, which has not been defined therein, it could apply to the Lokayukta accordingly, indirectly, but even then we find that as per entry at Serial No. 6 of the Table contained in Section 4 of the Act, 2016 ''Justices of the High Court' are entitled to Type-VI and Type-VII houses. When this provision is considered conjointly with Section 5(5) of the Act, 1975 and Rule 10 of the Rules, 1981 we fail to understand as to where is the conflict on the subject matter in issue i.e. the entitlement of the Lokayukta to a rent free official accommodation of Type-VI. Under the Act, 1975 and Rules, 1981 the Lokayukta was given a Type-VI rent free official residence as was admissible to the Chief Justice and other Justices of the High Court. Even under Section 4 the Chief Justice and the other Justices of the High Court are entitled, as per Serial No. 6 of the Table contained therein, a Type-VI or even a Type- VII rent free official residence. Ipso facto the Lokayukta is also entitled to the same on the same terms. The Act, 2016 and Rules 2016 at best supplement the Act 1954 or Rules made thereunder regarding the category of houses to be allotted to ''Justices' and can not supplant the said provisions of law contained in a Central enactment. A fortiori there is no conflict between the Act, 1975, the Rules made thereunder in 1981 and the subsequent Act, 2016 and Rules, 2016. It seems the conflict and confusion in this regard existed only in the mind of the Authorities and not in the Rule book.
In fact even Senior Officers of the Government are entitled as per Rule 4 Serial No. 6 of the Table to a Type-VI or VII house.
To counter this legal position it was contended by the State that the Lokayukta is equivalent to Chairman of a Statutory Commission under the State Government, therefore, it is not Serial No. 6 of the table contained in Section 4, but Serial No. 5 thereof, which would apply. This argument has been made only to be rejected. When the Lokayukta is entitled to such benefit as the Chief Justice of the High Court to whom the provision at Serial No. 6 applies, there is no question of applying the provision at Serial No. 5. Moreover, the Lokayukta is an independent statutory authority and not a Commission under the State Government nor is he the Chairman of any such statutory Commission under the State Government. We have already dwelt upon the independence and impartiality bestowed on the Office of the Lokayukta by the Act, 1975 itself in the manner of his appointment and functioning. The State Government is aware and has admitted to this position in its order dated 27.11.1978 contained in Annexure No. 7 to the writ petition which has not been denied in the counter affidavit, yet, if the highest authorities of the State choose to treat him otherwise, we wonder why ? The learned counsel appearing for the State could not put forth any argument whatsoever nor could he show any basis for treating the Lokayukta as Chairman of a statutory Commission under the State Government. The contention is therefore rejected. In view of the above, the reliance placed by the State on Rule 5(vii) is also absolutely misplaced and misconceived.
As far as the applicability of Rule 11(2) is concerned, first of all the Lokayukta is not an ''allottee' within the meaning of Rule 2(b) of the Rules, 2016. Secondly, the said provision applies in a situation where the allotment prior to the commencement of these Rules is itself invalid in the sense that the allottee was given a higher category of house than what he was entitled to under the earlier Rules and in only such cases Rule 11(2) applies. This would be evident from a conjoint reading of Rule 22 which speaks of another situation where the allotment prior to commencement of these Rules was a valid one and protects the same. This is the only way the two Rules can be read harmoniously. If what is being suggested by the State is accepted it would lead to a conflict between the two Rules. Therefore, this contention is also rejected as the allotment of official accommodation prior to coming into force of the Rules, 2016 was a valid allotment.
Though, Sri Ramesh Kumar Singh did not raise any plea based on Rule 23 and 24 of the Rules, 2016, as the same finds mention in the counter affidavit, therefore, we deem it appropriate to consider the same. As regards Rule 23 this Court is not bound by the same as the interpretation of these Rules as regards their inapplicability to the Lokayukta is a legal issue which is within its domain, moreover, we do not find any valid interpretation given by the State in this regard by any decision.
As regards Rule 24, considering the nature of the dispute before us and the august office involved, as also the plea of illegality and arbitrariness, its extent and, the complete lack of jurisdiction on the part of the concerned opposite party to pass the impugned order under the Act, 2016 and Rule, 2016 in view of the provisions already cited by us and the fact that the same has been issued with the approval of the Principal Secretary of the Estate Department in the Government, we do not see how this Rule comes in our way in dispensing substantial justice and removing the illegality and arbitrariness which is writ large on the face of the record, in exercise of our extraordinary, discretionary remedy. Both the pleas are therefore rejected.
At the fag end of his arguments, Sri Ramesh Kumar Singh, egged by Sri Rakesh Bajpai, learned Additional Chief Standing Counsel, submitted that the Act, 2016 constituted an implied repeal of the Act, 1975 so far as the conditions of service providing for a rent free official accommodation was concerned. We are of the view that this argument is also liable to be rejected. As pointed out earlier there is no conflict between the Act, 1975 and the Act, 2016 nor the Rules made thereunder, so far as the entitlement of the Lokayukta to a rent free official residence is concerned, therefore, there is no question of any implied repeal. Even otherwise, the Act, 1975 is a special enactment pertaining to the office of Lokayukta and the conditions of his service including the provision of rent free accommodation to him, whereas, the Act, 2016 is a general enactment with regard to allotment of houses to public functionaries in general as already discussed.
We have also carefully gone through the judgment of the Supreme Court in the case of Lok Prahari Vs. State of U.P. and Ors. (Writ Petition (C) No. 864 of 2016) decided on 07.05.2018 as reliance was placed upon it by the State during the course of arguments but we fail to understand as to how the said judgment helps the State, when the petitioner holds a statutory authority and the statute itself entitles him to the benefits discussed hereinabove, especially as, he is a current holder of the Office of Lokayukta and not a retired person.
The Government Order dated 20.02.2007 as amended on 16.04.2007 and as referred in Rule 5(i) of the Rules, 2016 have also been placed before us wherein also we do not find anything which could persuade us to take a contrary view of the matter.
Even at the cost of repetition we may again point out that in view of the proviso to Section 5(5), the conditions of service of Lokayukta can not be altered to his disadvantage after his appointment. Any attempt in this regard by the State would be fraught with serious consequences considering the sensitivity attached to the office as also its independence and impartiality by the statute itself.
In view of the above discussion we can not sustain the impugned order.
But before parting, we would like to put it on record that having heard the matter at length and having perused the original records, we are anguished and pained at the casual and irresponsible manner in which the Office of the Lokayukta has been treated by State functionaries. During the course of arguments when we asked the learned Additional Advocate General as to what triggered such an unnecessary exercise, it was pointed pointed out that one Sri Rohit Nandan a retired I.A.S. Officer, who is Vice Chairman of the U.P. Public Services Tribunal, was allotted a Type-VI house which was cancelled and he was given a Type-V house, whereupon, he challenged it before the High Court and in the writ petition he made a reference to similar allotments having been made to various statutory Commissions etc., therefore, the impugned action was taken against the Lokayukta. In the original records we could not find any such reason which may have worked as a catalyst for the impugned action, nevertheless, we do not approve of it, as, this seeks to equate the Office of the ''Lokayukta' with the Vice Chairman of the U.P. Public Services Tribunal. Suffice it to say that the comparison ends where it starts. The equivalence of the Lokayukta in matter of his condition of service is, as per the statute, with the Chief Justice of the High Court and not the aforesaid Vice Chairman. In fact the record reveals that a note was put up for the approval of the Principal Secretary in this matter, who, it appears, did not even bother to apprise himself of the statutory provisions governing the conditions of service of the Office of Lokayukta. Treating it as a routine matter, as if, the Lokayukta was any other government servant, he put his signatures thereon without any query whatsoever. We do not appreciate such a casual attitude on the part of such a high functionary of the State. Such matters touching on the rights of the Lokayukta should not be left to subordinate officers such as the Estate Officer, who, we have no doubt in our mind, had absolutely no clue about the legal position regarding the Office of the Lokayukta nor did he bother to seek any legal opinion before taking the impugned action as none has been placed before us.
If as per Section 5(5) of the Act, 1975 read with Rule 10 of the Rules, 1981 the equivalence of the office of Lokayukta, in matters of his conditions of service, is with the Chief Justice of the High Court, can anybody be so naive or imprudent as to treat him as the Chairman of a Commission when there is nothing to this effect in the Act, 1975 or the Act, 2016 with regard to the said office and to apply the provision at Serial No. 5 of the table in rule 4 of the Act, 2016 instead of the one at Serial No. 6, which was applicable, and also to impose conditions making him liable to pay rent etc. Certainly not. Although, such deviation from statutorily prescribed norms and Rules without any justifiable and valid explanation is termed in legal parlance as legal malice or malice in law, considering the knee jerk action without any necessity or cause and the way, as per the records produced before us, even the opinion of the highest law Officer of the State, the Advocate General of U.P. to cancel the impugned order in view of Rule 22 in terms of the assurance given by him to this Court as recorded in the order dated 20.12.2017, was ignored and brushed aside cursorily and ignominiously after seeking opinion from the Legal Remembrancer U.P. as to whether the opinion of the Advocate General was binding on the Government or not, thereby displaying an unjustified intent to defend the indefensible and an unnecessary intransigence and belligerence in the matter, we are compelled to say that there appears to be something more to it than what meets the eyes. While the opinion of the Advocate General, who is the highest law officer of the State and holds a constitutional post under Article 165 of the Constitution of India and who does not function under the control of the Legal Remembrancer, may not be binding upon the Government as a general rule or principle, in every case, it does not mean that it should be discarded on mere whims or personal predilections contrary to the irrefutable legal position and if it is so done without any valid legal justification, as in this case, then the bonafides of the decision impugned becomes questionable. Is it because of the sensitive nature of the duties performed by the Lokayukta ? Is it an attempt to belittle and humiliate the incumbent of the august Office ? Does it behove the State Government to treat the Lokayukta in such a casual and irresponsible manner ? We leave these questions to be pondered over by the highest functionaries of the State and to decide for themselves.
In view of the above, we quash the impugned order. A copy of this order shall be placed before the Chief Secretary, U.P. who in turn shall apprise the highest functionaries of the State about the same. If similar flaws have been committed in respect of other statutory authorities we expect that the State Government shall revisit the same.
The Bench Secretary shall return the original records, which were retained by us, to the learned Additional Chief Standing Counsel Sri Rakesh Bajpai.
With the aforesaid observations/ directions, the writ petition is allowed with costs.