N. N. Mithal, J. - (1.) PETITIONER Nos. 1 & 2, who were employed as Selection Grade Auditors in the Office of the Controller of Defence Accounts (ORS), Meerut Cantt, under the Govt. of India, were allotted residential accommodation from out of defence pool where they had been residing along with their family members. PETITIONERs 3 & 4 are sons of petitioners 1 & 2 respectively and they are also in service under the Govt. of India since 1973 and 1974 respectively.
(2.) THE case of the petitioners is that since petitioners 3 & 4 had been residing with their parents in the Govt. accommodation they were entitled to continue to reside therein on the retirement of their parents. A reference has been made to a Govt, policy decision taken in 1965, copy whereof is Annexure '1' to the writ petition, and also to subsequent rules dated 17-10-1978 framed under Article 309 of the Constitution. Allegation in the petition is that petitioner No. 1 retired on 31st March, 1979 and petitioner No. 2 retired on 1-6-79. THE petitioners 3 & 4 had been residing with their ever since 1976 i e. for more than six months of the retirement of petitioners 1 & 2 and, as such they were entitled to get the benefit of the rules dated 17-10-78. The grievance made by the petitioner is that inspite of their application for regularisation of their possession authorities were not inclined to do so and have directed the petitioners to vacate the accommodation in question in utter violation of the rules dated 17-10-1978. A prayer for a writ of mandamus has been made for quashing the orders passed by respondent Nos. 1 on 21-6-79 & 26-10-1979 rejecting petitioners' application for regularisation and also for a writ of mandamus directing the respondents to regularise the possession of petitioners Nos. 3 & 4. In reply, the case of the Union of India is that petitioner No. 3 is a permanent auditor in CD. A. while petitioner No. 4 is a temporary clerk in the office of the Director of Audit, Defence Service and they have been residing with their parents only since April, 1978 and July, 1976 respectively. It is contended that the rules referred to by the petitioners are applicable only in respect of civilian employees paid from Defence Service Estimates. The petitioners being employed in Defence Accounts Department their cases were governed by Rules framed by Director of Estate, Ministry of Works and Housing. Their applications were, therefore, rightly rejected as they were only entitled to get Govt accommodation out of CD.A. C.C. pool but not from the Govt. accommodation out of the pool meant for ORS North, Meerut. It was also contended that the concession for ad-hoc allotment had also been withdrawn with effect from 1-5-78 by the Ministry of Works and Housing.
(3.) WE have heard learned counsel for the parties. Petitioners' counsel has informed us that petitioners Nos. 2 & 4 have withdrawn the petition and they are no longer pressing it. The petition is, therefore, dismissed so far as petitioner Nos. 2 & 4 are concerned. As regards petitioners 1 & 3 are concerned the main submissions made on their behalf is that the rules framed under Article 309 of the Constitution cannot be abrogated or abridged in any manner by any executive fiat or decision. It is, therefore, contended that Annexure CA-1, which is a letter issued by the Ministry of Works & Housing Directorate dated 1-5-78, cannot have the effect of nullifying the rules framed under Article 309 of the Constitution on 17th October, 1978.;