JUDGMENT R.H. Zaidi, J.
1. In both these petitions, common questions of law and fact are involved. Subject-matter of dispute and parties are also the same, they were heard together and are being disposed of by this common Judgment.
2. By means of Writ Petition No. 2083 (M/S) of 1998, petitioner prayed for issuance of a writ, order or direction in the nature of certiorari quashing order dated 9.9.1998 whereby allotment of House No. 7/2, New Badshah Nagar Colony, Nishatganj, Lucknow (for short 'the house in dispute') in favour of the petitioner was cancelled. Prayers for a writ, order or direction in the nature of mandamus commanding respondent Nos. 1 and 2 to hand-over physical possession of the house in dispute to the petitioner and to respondent No. 3 to vacate the said house, have also been made.
3. By means of W.P. No. 292 (M/S) of 1999, petitioner prays for issuance of a writ, order or direction in the nature of certiorari quashing the order dated 27.1.1999 passed by respondent No. 2 rejecting application of the petitioner for permission to occupy the house in dispute and for writ of mandamus directing the respondents to handover physical possession of the said house, has been made.
4. The relevant facts giving rise to the abovementioned writ petitions, in brief, are that petitioner is a Government servant working as Production Assistant (Programme Maker) in Educational Television in Rajya Saikshik Takneeki Sansthan. Lucknow since 1986. She was in need of a residential accommodation, therefore, she applied for allotment of a Government accommodation in the year 1987. On the application made by petitioner. House No. L-13/5 Badshah Nagar Colony, Lucknow, was allotted to her and possession of the said house was taken by the petitioner. The said house was, however, not found in good condition. The same needed major repairs. According to her, roof of the said house was in dangerous condition, she, therefore, made an application for getting the said house repaired but the same was not repaired. Since the house could not be repaired, therefore, the petitioner applied for change of the house as it was not possible to reside in the aforesaid house. On the application made by the petitioner for change of accommodation, the house in dispute was allotted to her vide orders dated 11.10.1996. The petitioner was to take possession after the house in dispute was to be vacated by one Sri Shoeb Ahmad after his retirement from service. Before the petitioner could take possession over the house in dispute, the allotment of the said house made in favour of the petitioner was cancelled and the same was allotted in favour of Sri KunJ Behari Lal Saxena-respondent No. 3, vide order dated 9.9.1998. It may be noted that before allotment of the house in question was cancelled. House No. L-13/5 referred to above was also allotted to one Sri Satya Deo Singh vide order dated 19.5.1998. In the aforesaid circumstances, the petitioner made a representation to the Principal Secretary on 16.9.1998 for ventilation of her grievances. It was stated that order dated 9.9.1998 was passed without affording' an opportunity of hearing to the petitioner. Since no action was taken by the competent authority on the application filed by the petitioner, she approached this Court and filed W.P. No. 2083 (M/S) of 1998 for the abovementioned reliefs, and on 18.9.1998 the following order was passed by this Court :
"Learned standing counsel is directed to seek instructions within a week. List this petition in the third week of October, 1998.
Meanwhile it is provided that the possession of Flat No. 7/2 Badshah Nagar Colony, Lucknow shall not be given to any other person."
5. Subsequently after hearing learned counsel for the parties on 21.12.1998, following order was passed by this Court :
"It has been urged by learned counsel for the petitioner that the impugned order cancelling the allotment of Government accommodation was passed without affording any opportunity of hearing to the petitioner, same is, therefore, illegal and inoperative.
Learned standing counsel has failed to demonstrate from the record that any opportunity of hearing was afforded to the petitioner before passing the impugned order. The impugned order appears to have been passed in violation of principles of natural Justice.
In view of the said facts, it is hereby directed that until further orders of this Court, the operation of the impugned order dated 9.9.1998, contained in Annexure-4 to the writ petition shall remain stayed. Petitioner may make an application for permission to occupy the house in dispute before the competent authority. If such an application is filed within a week from today, the same shall be decided within 10 days thereafter in accordance with law."
6. On the strength of the aforesaid order, the petitioner made an application before respondent No. 1 for permission to occupy the house in dispute. The application filed by the petitioner was, however, rejected by the respondent vide order dated 9.9.1998. The petitioner, therefore, filed W. P. No. 292 (M/S) of 1999 challenging validity of order dated 9.9.1998 and for other reliefs noted above. On behalf of respondent Nos.
1 and 2, counter-affidavit has been filed in W. P. No. 292 (M/S) of 1999, a counter-affidavit on behalf of respondent No. 3 has also been filed. In reply to the affidavits filed by the said respondents, the petitioner has also filed rejoinder-affidavits and also a supplementary affidavit which form part of the record. In the counter-affidavits, the contesting respondents have supported the validity of impugned orders. It has been asserted that Badshah Nagar Colony is meant only for employees of the Secretariat and only eligible Government employees drawing pay-scale of Rs. 5,500 to 9,000 are entitled to allotment of Government accommodation in the said Colony. On behalf of respondent No. 3, it has been stated that he was a handicapped person, therefore, he was in need of an accommodation on the ground floor. The house allotted to him was on the second floor, therefore, on his application house in dispute was rightly allotted to him by respondent Nos. 1 and 2. In the counter-affidavit filed by respondent No. 2, it has been also stated that the petitioner was at liberty to occupy the house No. L-13/5 Badshah Nagar Colony, as she was not eligible to allotment of house in dispute.
7. Learned counsel for the petitioner vehemently urged that the impugned order dated 27.1.1999 was passed by respondent No. 1 without affording an opportunity of hearing to the petitioner. Before allotment was to be cancelled, the petitioner was entitled an opportunity of hearing inasmuch as her civil rights were to be affected by order of cancellation of allotment. No such opportunity having been provided : the impugned order was liable to be quashed for violation of principles of natural justice. So far as impugned order dated 27.1.1999 is concerned. It was contended by learned counsel for the petitioner that it was factually incorrect that Badshah Nagar Colony was only meant for the employees of Secretariat inasmuch as there were number of Government employees other than employees of the Civil Secretariat who were allotted accommodations in the said Colony and were permitted to reside there. It was also urged that the petitioner was getting a salary of Rs. 4,844 per month, therefore, she was quite eligible for allotment of Government accommodation in the aforesaid colony. On the other hand, learned counsel appearing for respondent Nos. 1 and 2 contended that petitioner was rightly allotted H. No. L-13/5, Badshah Nagar Colony. She could occupy the same. It was also urged that Government accommodations in the aforesaid colony were meant only for the employees of the Secretariat. Learned counsel appearing for respondent No. 3 submitted that house in dispute was allotted to respondent No. 3 on compassionate ground as he was a handicapped person and was in need of the accommodation on the ground floor.
8. I have considered submissions made by learned counsel for the parties and also gone through the record.
9. It is not disputed by the respondents that the house in dispute was allotted to the petitioner by order dated 11.10.1996. The said house was previously in occupation of one Sri Shoeb Ahmad who was to retire from Government service on 31.7.1998. On the said date, Sri Shoeb Ahmad retired from service but before the petitioner could occupy the house in dispute, allotment of house made in favour of the petitioner was cancelled and the house in dispute was allotted in favour of Sri Kunj Behari Lal Saxena. It is also not disputed by the respondents that the order dated 9.9.1998 was passed by respondent No. 1 without affording any opportunity of hearing to the petitioner. On the basis of order of allotment made in her favour on 11.10.1996, the petitioner became entitled to occupy the house in dispute. If the allotment made in favour of the petitioner was sought to be cancelled, the same could be cancelled only following the procedure prescribed for the same and after affording an opportunity of hearing to the petitioner. No such opportunity was provided to the petitioner and order dated 9.9.1998 was passed in violation of principles of natural Justice. It is well-settled law that not only the judicial or quasi-judicial orders ; but also administrative and executive orders by which the civil rights of any person are likely to be affected, are to be passed after affording an opportunity of hearing to the person concerned. Failure to afford an opportunity of hearing or to explain, his case, renders the order nullity and unenforceable in law. Reference in this regard may be made to the decisions of the Apex Court in S. L. Kapoor v. Jag Mohan, AIR 1981 SC 136 : Smt. Maneka Gandhi v. Union of India, AIR 1978 SC 597 ; A. K. Kraipak v. Union of India, AIR 1970 SC 150 and Slate of Orissa v. Dr. (Miss) Binapani Dei, AIR 1967 SC 1269.
10. In view of the aforesaid decisions, the impugned order dated 9.9.1998 which was passed without affording an opportunity of hearing to the petitioner and in violation of principles of natural Justice, is liable to be quashed, it is also observed that respondent Nos. 1 and 2, had no jurisdiction to allot the house in dispute in favour of respondent No. 3 as there existed no vacancy in the said house. So far as order dated 27.1.1999 is concerned, representation of the petitioner has been rejected on two grounds. Firstly, that Badshah Nagar Colony is only meant for Government employees working in the Secretariat and that the petitioner was not eligible for allotment of the said house as the house in question was of Type III and the officers lower than the officers of category-B (receiving salary in the pay-scale of Rs. 5.500 to 9,000) were entitled to this type of residence.
11. In paragraph 6 of the Writ Petition No. 292 (M/S) of 1999 it was stated as under :
"That several persons, namely Nisar Ahmad Khan, Varishtha Sahayak, Panchayat Raj, has been allotted and possession has been given of House No. 2/6 New Badshah Nagar Colony, Shrt Narendra Pandey, Sahayak Vasooli Adhikari, U. P.
Anusoochit Jaatl Vitta Evam Vikas Nigam has been allotted and given possession of House No. 7/8 New Badshah Nagar Colony and Sri Wallullah Khan, Sahayak Adhyapak Rajkiya Jubilee Inter College, Lucknow, has been allotted and given possession of House No. 3/8. New Badshah Nagar Colony. True copies of the allotment letters are being filed as Annexureg-3. 4 and 5 to this writ petition."
12. It was also stated that Sri Nisar Ahmad and Narendra Pandey have been allotted the accommodation on double rent as their pay-scale was less than the prescribed pay scale and that the said employees were not the employees of the Secretariat.
13. In the counter-affidavit filed on behalf of respondent Nos. 1 and 2, contents of paragraph 6 of the writ petition have substantially been admitted in paragraph 10 which reads as under:
"That in reply to the contents of paragraph 6 of the writ petition, it is stated that the persons whose names are mentioned in the para under reply have been allotted the accommodation as mentioned but out of them only two persons, namely. Sri Nisar Ahmad and Wall Ullah are in possession of allotted accommodation. The House No. 7/8 New Badshah Nagar Colony though allotted in the name of Sri Narendra Pandey, is still in possession of Sri Radhey Shyam Pandey who retired on 31.7.1998 and has been granted special permission upto June. 1999 to retain the possession of the said house."
It was also admitted that Nlsar Ahmad was allotted house on double rent.
14. Thus, from the statement of fact made in the counter-affidavit, it is admitted that Government employees other than the employees of Secretariat, have been allotted Government accommodations in Badshah Nagar Colony. Further, nothing has been brought on record by respondent Nos. 1 and 2 to show that Government accommodation in Badshah Nagar Colony were meant only for Government employees working in the Secretariat. So far as scale of pay of the petitioner is concerned, along with supplementary affidavit a certificate (Vetan Praman Pattra) issued by Prashashanik Adhikari, Rajya Shaikshik Takneeki Sansthan, U. P.. Lucknow, has been filed which shows that the petitioner is entitled to her salary in the pay scale of Rs. 5,000 to 8,000 and at present was receiving an amount of Rs. 4.844 per month including allowances and after deducting the amount of G.P.F. Premium. Group Insurance. Income-tax, etc.. the gross salary of the petitioner was 8,154 per month. Thus, according to the pleas taken by respondent Nos. 1 and 2 in their counter-affidavits, petitioner cannot be said to be ineligible or disqualified for allotment of the house in dispute. It is well-settled law that the State or its Instrumentalities and functionaries cannot discriminate between similarly situated persons. Under the law similarly situated persons are entitled to equality before law and equal protection of laws. A reference in this regard may be made to the decisions of the Apex Court in A. L. Kalra v. Project and Equipment Corporation of India Ltd., AIR 1984 SC 1361 ; Ramana Dayaram Shetty v. International Airport Authority of India and others. AIR 1979 SC 1628 : State of U. P. v. Deoman Upadhyaya, AIR 1960 SC 1125 ; Buddhan Choudhary and others v. State of Bihar, AIR 1955 SC 191 and Ram Prasad Narayan Sahl and another v. State of Bihar and others. AIR 1953 SC 215.
15. InV view of the aforesaid decisions and facts and circumstances of the present case, the action taken and orders passed by respondent Nos. 1 and 2 are discriminatory, arbitrary and violative to Article 14 of the Constitution of India. Application filed by the petitioner was wholly illegally rejected by the respondents by order dated 27.1.1999. The said order being illegal, discriminatory and arbitrary and in violation of Article 14 of the Constitution of India is also liable to be quashed.
16. In view of the aforesaid discussions these petitions deserve to be allowed. The writ petitions, therefore, succeed and are allowed.
Orders dated 9.9.1998 and 27.1,1999 are hereby quashed. Respondent Nos.
1 and 2 are hereby directed to handover possession of the house No. 7/8 New Badshah Nagar Colony.
Nishatgang. Lucknow, to the petitioner within 15 days after getting the same vacated, from the date a certified copy of this order is communicated to respondent No. 2.
Respondent No. 3 is also directed to vacate the said house within the aforesaid time. It is, however, observed that respondent No. 3 may apply for some other suitable accommodation. If such an application is made by him within 10 days from today, the same shall be considered sympathetically. No orders as to costs.