State of Odisha Vs Nabakishore Biswal

IN THE HIGH COURT OF ORISSA AT CUTTACK

W.A No.2826 of 2024

In the matter of an appeal under Article 4 of Orissa High Court Order, 1948 read with Clause-10 of the Letters Patent of Patna High Court and Rule 6 of Chapter-III of the Rules of the High Court of Orissa from the order dated 05.12.2023 passed by learned Single Judge in W.P.C(OAC) No.2818 of 2010.

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…. State of Odisha & others Appellants -versus-

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Nabakishore Biswal …. Respondent

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Advocates Appeared in this case

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For Appellants Mr.Satya Brata Mohanty, Addl. Govt. Advocate

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For Respondent - M/s.Srikar Ku. Rath, M. Behera, A. Choudhury & B.R. Swain,

Advocates

CORAM :

MR. JUSTICE DIXIT KRISHNA SHRIPAD MR. JUSTICE CHITTARANJAN DASH

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Date of Hearing & Judgment : 29.01.2026

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PER KRISHNA S. DIXIT, J .

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This As a prelude to this judgment, we are quoting what

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the Apex Court observed in Union of India v. Onkar Nath Dhar, 2021 INSC 382:

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Page 1 of 13

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“The right to shelter does not mean right to Government accommodation. The Government accommodation is meant for serving officers and officials and not to the retirees as a benevolence and distribution of largesse....”

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To add to the above, squatting on the public property post retirement or cessation of entitlement has become a national menace, now a days.

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This Intra-Court appeal by the State and its officials seeks to call in question a learned Single Judge’s order dated 05.12.2023 whereby respondent retiree’s WPC (OAC) No.2818 of 2010 having been favoured, the following relief has been accorded to him:

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“6.1. It is found that in terms of the said order, Petitioner vacated the quarter on 07.04.2006. Since it is not disputed that Petitioner was never issued with any notice directing him to vacate the quarter till 27.12.2005, placing reliance on the decision of the Hon'ble Apex Court as cited (supra) so followed by this Court, this Court is of the view that the Petitioner is not liable to pay penal rent till 20.01.2006 i.e. the date fixed in notice dated 27.12.2005 for vacation of the quarter. As per the considered view of this Court, Petitioner is only liable to pay penal rent for the period from 21.01.2006 to 07.04.2006, when he vacated the quarter. This Court while holding so, directs the Opp. Party Nos.2 & 4 to release the withheld gratuity amount of the Petitioner along with interest @7% per annum as due and admissible by recovering the penal rent from the Petitioner for the period from 21.01.2006 to 07.04.2006 and the normal rent for the period from 01.03.2002 to 20.01.2006. The entire exercise shall be undertaken and completed by Opp. Pasty Nos.2 & 4 within a period of two (2) months from the date of receipt of this order...”

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Page 2 of 13

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2. Learned AGA appearing for the State vehemently argues that retention of official quarters by a retired employee beyond the permissible limits is a serious matter; such retention causes a great hardship to the officiating employees who have a legitimate claim to occupy such quarters soon after posting; the provisions Orissa Service Code provide for levying penal rents/damages in cases of overstaying; learned Single Judge having failed to approach the matter in a right perspective, the impugned order suffers from a legal infirmity warranting interference at our hands. Learned counsel appearing for the retired employee vehemently resists the appeal making submission in justification of the impugned order and the reasons on which it has been structured. He presses into service the rulings relied upon by the learned Single Judge.

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3. Having heard learned counsel for the parties and having perused the appeal papers, we are inclined to grant indulgence in the matter as under and for the following reasons:

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3.1. BRIEF FACT MATRIX OF THE CASE

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(i) The respondent who was in the occupation of official quarters during service retired on 28.02.2002 on superannuation. However, he retained the quarters much beyond his retirement. The ADM-cum-Estate Officer issued a coercive notice dated 27.12.2005. In petitioner’s W.P.(C) No.4505 of 2006, a learned

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Page 3 of 13

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Single Judge, vide order dated 31.03.2006, granted a period of seven days for vacating the quarters. Accordingly, he vacated on 07.04.2006.

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(ii) The respondent was slapped with a demand notice dated 15.05.2006 levying a penal rent of Rs.1,34,947/- for the unauthorized occupation of the quarters, i.e., during the period between 28.02.2002 and 07.04.2006. Since that amount was not remitted, his gratuity was withheld. Hi filed O.A No.267(C) of 2010. The Orissa Administrative Tribunal, vide order dated 04.03.2010, disposed off the same directing the authorities to take a decision on respondent’s claim for exemption from payment of penal rent. The jurisdictional authority having not favoured the claim, he again approached the Tribunal and on its abolition, his cased was transferred to this Court as WPC (OAC) No.2818 of 2010. The learned Single Judge, by the impugned order, allowed the same observing that the respondent is liable to pay the penal rent only for the period between 21.01.2006 and 07.04.2006 coupled with a direction for releasing the withheld gratuity amount with interest at the rate of 7% per annum, after giving deduction of normal rent for the period between 01.03.2002 and 20.01.2006. The appellants grieve against this order.

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Page 4 of 13

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3.2. Learned AGA is more than justified in submitting that the official quarters are meant for occupation by the serving officials so that the efficacy of discharge of duty is not affected. On the cessation of employment, be it by retirement, removal, resignation or otherwise, an employee is not entitled to retain the occupancy beyond the permissible limits. Rule 107-A of the Code reads as

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under:-

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“ 107-A. RETAINING OF THE ALLOTTED RESIDENCE:

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(i) Unless otherwise provided in any general or special orders issued by the State Government, a residence allotted to a Government servant may be retained on the happening of any of the events specified in Column (2) of the table below for the period specified in the corresponding entry in column (3) thereof provided that the residence is required for the bona fide use of the Government servant or members of his family.”

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This Rule has a Table and relevant part of it is reproduced for ease

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of reference:

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*Item No.*	*Events*	*Permissibleperiodfo*	*r retention of the residence*
2.	Retirement of Government servant including leave preparatory to retirement and refused leave.	(a) Government servant entitled to reserved or licence fee free accommodation. (b) Other categories of Government servants.	One week from the date of retirement where a substitute has been appointed and one month when no substitute has been posted. One month from the date of retirement when a substitute has been appointed and two months when по substitute has been appointed
		Provided that the authority com Government servant to retain months, if no administrativ concession. NOTE-In the case of leave p leave, the confessional period w leave commences.	petent to allot quarters may allow the the residence up to a period of 4 e inconvenience is caused by this reparatory to retirement and refused ill count from the date from which the

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3.3. The above Table specifically provides for retention of the official quarters by the retiree only for a period of one week from the date of superannuation when a substitute has been appointed to the vacancy and one month when no such substitute has been posted. If the retiree falls in the other category of Government servants, that retention period is one month when substitute has been appointed or two months when not appointed. Of course, the proviso authorizes the competent authority to allow the occupation for a period not beyond four months, if no administrative inconvenience is caused by such concession. In the case at hand, no such permission was ever granted to the respondent, although he had sought for it. In any case, assuming that he was entitled to such a concession, that would not justify his occupation beyond four months of retirement. Therefore, his occupation becomes unauthorized after the said period and as a consequence, penal rents become leviable. This aspect of the matter has not been duly discussed by the learned Single Judge and thus, the first infirmity is infected in the impugned order.

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3.4. It is relevant to state that under the new Rule 107-A of the Code to which Table is appended, the provisions have to be read as mandatory because it employes the expression ‘a residence allotted to a Government servant may be retained-‘. The word ‘may’

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Page 6 of 13

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has a greater significance when the word ‘can’ is conspicuously absent. Court has to keep in mind the salutary object as to why such a Rule is promulgated, while deciding as to whether the same is mandatory or directory. At Item No.3 in the Table appended to this Rule, the following text appears:

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*Item* *No.*	*Events*	*Permissible period fo*	*r retention of the residence*
3.	Death of the Government servants.	(a)Government servant entitled to reserved accommodation.	Fifteen days following the date of death when a substitute has been posted and one month when no substitute has been posted.
		(b) Other categories of Government servants.	One month when a substitute has been posted and two months when no substitute has been posted.

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Even in the case of death of an employee in harness, his family members cannot retain the official quarters beyond four months in any circumstance. Therefore, gauged by any standards, the occupation of the respondent was unauthorized when he stayed beyond four months, assuming that his request for extension was bona fide.

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3.5. The vehement submission of learned counsel appearing for the respondent that the occupation would become unauthorized only after notice is issued by the Competent Authority, if accepted would cause the death knell of Rule 107-A of the Code, which

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proscribes retention of official quarters by the retiree/transferee beyond the prescribed period. Such contention cannot be countenanced without manhandling the provisions of this Rule, which we have already said are mandatory. Clause II of Rule 107A specifically provides that the allotment of quarters shall be deemed to be cancelled on the expiry of admissible concessional period. Therefore, there is absolutely no scope for introducing element of notice as a sine qua non for such an occupation to become unauthorized. Occupation of official quarters by the public servants is not a matter of tenancy or ordinary license. It stands on a different footing, since quarters are built for allotting to the serving officials so that the efficacy of public service is maintained. One can fairly imagine the hardship, which serving officials posted to a particular place, are not allotted the official quarters. That is the reason why penal rent becomes leviable.

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3.6. Learned Single Judge has structured the impugned order on a wrong premise that in the absence of notice for eviction, the retention of official quarters does not become unauthorized. He has not adverted to Clause II of Rule 107-A of the Code. The rulings, i.e., State of Orissa v. Sadasiv Mohanty, (1997) 3 SCC 211 is not applicable to the case since it does not relate to Rule 107-A in general and Table appended to the same in particular. This

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presumably may be because of absence of Rule 107-A, which is a new entry to the Rule Book. It hardly needs to be stated that a decision is an authority for the proposition that is laid down in a given fact matrix and not for all that which logically follows from what has been so laid down vide Lord Halsbury in Quinn v. Letham [1901] AC 495 (HL).

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3.7. The vehement contention of learned counsel appearing for the retiree that his client had applied for permission to retain the occupation of the official quarters and that no decision having been taken on that, the occupation does not become unauthorized, is very difficult to agree with reasons for this are not far to seek: firstly, what is required is the permission to retain the quarters and that there is no deemed permission in the extant Rules when no decision is taken on the request for permission. Secondly, no permission could have been given for a period beyond what is prescribed by the Rules. His further contention that respondent had protection at the hands of Tribunal and later at the hands of learned Single Judge is only self-serving statement, which is farfetched. In Onkar Nath Dhar supra it is also observed;

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“… the compassion howsoever genuine does not give a right to a retired person from continuing to occupy a government accommodation.”

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Thus, prolonged stay in the government accommodation under the guise of litigation is unpardonable. The occupant should realize that a government accommodation is only a qualified privilege and not a right. In other words, the prolonged stay after cessation of employment or transfer of an employee is a serious misconduct, to say the least.

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3.8. AS TO LEVY OF EXEMPLARY COSTS.

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(i) It is pertinent to recall what the Hon’ble Supreme Court said in S.D. Bandi v. Divisional Traffic Officer , AIR 2013 SC 2507:

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“29....The unauthorized occupants must recollect that rights and duties are correlative as the rights of one person entail the duties of another person; similarly the duty of one person entails the rights of another person. Observing this, the unauthorized occupants must appreciate that their act of overstaying in the premise directly infringes the right of another. No law or directions can entire control this act of disobedience but for the self-realization among the unauthorized occupants.”

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A learned Single Judge of this Court in Ramesh Chandra Mohanty v. State of Orissa (2022) 02 OHC CK 0193 in paragraph 5 has rightly observed as under:-

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“…. Petitioner having admittedly been transferred…., cannot retain the quarters for such a long period in view of the specific provision under Rule 107A of the Orissa Service Code. Having done so, the petitioner is liable to pay penal rent as per the extant rules, guidelines/circulars of the Government…”

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In more or less, a matchable fact matrix of this appeal, a learned Single Judge of High Court Jammu & Kashmir, in Director v. Avtar Krishan 2023 LiveLaw (JKL) 285 has observed as under:

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“The right of the respondent to enjoy the Government accommodation ceased with his retirement from service and, therefore, he does not possess any right to keep Government accommodation with him for all times to come and even after his retirement, when under Rules he can retain Government accommodation only for a period of one month after his retirement and thereafter, the accommodation is deemed to have been cancelled. Having lost his right to enjoy Government accommodation with his retirement from service, the respondent cannot question the Deputy Director’s communication to deposit the rent, which is strictly in conformity with the directions passed…”

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(ii) The conduct of the respondent, in retaining the quarters for years beyond what is permissible, is culpable. Firstly, he approached the Tribunal and got a direction to take a call on his application for exemption from penal rents. How such a right arises and under which provision of law, are a matter of mystery. Thereafter, he approaches the Writ Court and vacates the premises within seven days, i.e, on 07.04.2006, date of retirement being 28.02.2002. There is nothing in the order of the Court in W.P.(C) No.4505 of 2006 that makes his retention period authorized. We fail to understand how he could secure a direction for payment of interest. It is a textbook case of abuse of process of Court and therefore, eminently merits levy of exemplary costs. When we put

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this proposal, learned counsel for the respondent contends that his client is aged and he is ailing too. There is not even a whisper in his pleadings nor a piece of paper is produced before us to vouch such a contention. A loud message should go to the recalcitrant retirees/transferees that retention of official quarters beyond the permissible limits is absolutely barred. That would happen only when the act is made an ill bargain.

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In the above circumstances, this appeal succeeds; impugned order of the learned Single Judge is set at naught; respondent WPC (OAC) No.2818/2010 is dismissed with an exemplary cost of Rs.1,00,000/- (Rupees One Lakh) only to be remitted within ten (10) equalized monthly installments failing which additional sum of Rs.200/- per day of delay shall be paid. This entire amount be remitted to the State Legal Services Authority. The Authority may institute coercive proceeding for redemption & recovery.

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We place on record our deep appreciation for the able research & assistance rendered by Law Clerk-cum-Research Assistant Mr. Mohammed Nihad Sharief.

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Registry to send a copy of this judgment by speed post for needful action in other similar matters, to:

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(i) The Principal Secretary, Department of General Administration & Public Grievances, Government of Odisha, Bhubaneswar.

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(ii) The Member Secretary, State Legal Services Authority, Cuttack.

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(Dixit Krishna Shripad) Judge

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(Chittaranjan Dash) Judge

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Orissa High Court, Cuttack The 29^th Day of January, 2026/ Madhusmita

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Signature Not Verified

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Digitally Signed Signed by: MADHUSMITA MALLICK Designation: Jr. Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 02-Feb-2026 16:55:41

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State of Odisha v. Nabakishore Biswal

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State of Odisha v. Nabakishore Biswal

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