Kashmiri Migrants not entitled to stay in govt accommodation for indefinite period: Supreme Court

The Supreme Court recently held that retired government officers who are Kashmiri migrants cannot occupy government accommodation for an indefinite period (Union of India and Another v. Omkar Nath Dhar (D) Through LRs).

"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," the Division Bench of Justices Hemant Gupta and AS Bopanna held.

The Court was hearing a set of miscellaneous applications seeking recall of its previous orders. In August this year, the Court had set aside an order of the Punjab & Haryana High Court which had effectively allowed a former Kashmiri officer (appellant in this case) to continue staying in government accommodation even after his superannuation in 2006.

It also dealt with an Office Memorandum (OM) issued by the Central government in 2017, pursuant to the directions of the Delhi High Court. The OM was issued to provide alternate residence to retired Central government who meet the specified terms and conditions to qualify as “Kashmiri migrants”. The scheme specified the terms and conditions on which such persons would be entitled to retain such accommodation.

In its order, the Court also referred to its ruling in JL Koul v. State of J&K, in which it had approved a rehabilitation scheme for Kashmiri migrant officers. As per the scheme, on retirement of such officers, transit accommodations would be provided to them. If such transit accommodation was not available, ₹1 lakh per family towards rental and incidental expenses would be given to those who may not be accommodated in transit accommodation.

"Thus, even if they have not been given alternate accommodation, the Scheme approved by this Court contemplates cash compensation towards rental and incidental expenses. The compassion could not be extended in perpetuity and has to end some day or the other," the order stated.

The Bench noted that the Office Memorandum entitling the former government employees who are Kashmiri Migrants to stay in the government accommodation for an indefinite period was wholly arbitrary and discriminatory.

"The Office Memorandum issued on 28.3.2017 was in terms of the directions of the High Court of Delhi. Such order of High Court has not been approved by this Court vide order dated 5.8.2021. Therefore, the entire basis of issuance of Office Memorandum falls flat as the very foundation of such Scheme stands knocked down," the order stated.

The applicants had submitted that Kashmiri Migrants form a different class as victims of terrorism. Therefore, the OM was issued while keeping in view peculiar hardships faced by these migrants.

However, the Court found that such classification was discriminatory and arbitrary. It noted that 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… 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," the Court observed.

Under Para 2(ii) of the OM, the Court noted that the 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. The Court then went on to observe that:

"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, the Court held that a government employee who is a Kashmiri migrant would not be entitled to retain government accommodation for a period exceeding three years.

[Read Judgment]