Thomas P. Joseph, J.@mdashThis Second Appeal comes from judgment and decree of learned District Judge, Thiruvananthapuram in A.S. No. 223 of 2004 confirming dismissal of the suit, O.S. No. 1510 of 2002 by learned First Additional Munsiff, Thiruvananthapuram. Appellant while working as Attender, Grade II in the Government Health Services was allotted quarter No. IV for her stay by respondent No. 1. She was promoted and on the date of suit was working as permanent Nursing Assistant at Women and Children''s Hospital. She claimed that there are five quarters attached to the training centre of which quarter No. IV is occupied by herself. Other quarters are also occupied. While so, she received a notice from respondent No. 2, Director of Health Service directing her to vacate quarter No. IV within three days as the said quarter was allotted to the Law Officer. Appellant submitted a memorandum to the Government based on which further action was stopped. The Law Officer was allotted quarter No. III. Appellant has ten more years service in the Health Department. Claiming that she is entitled to continue in quarter No. IV until retirement she filed a suit for decree for prohibitory injunction against her eviction. Respondent No. 2 contended that quarter No. IV was allotted to the appellant on condition that when eligible officers applied she would vacate the quarter. The officers of the Health Service were occupying all the five quarters. Additional Director was occupying quarter No. I while the Law Officer was occupying quarter No. III. The three other occupants including appellant were not actually eligible to occupy the quarters. But, subject to the condition first above stated, appellant was permitted to occupy quarter No. IV. Quarter No. IV occupied by the appellant is required to accommodate senior officers and hence notice was issued to her. Appellant got stay from the Minister based on Ext.A4, representation and hence, quarter No. III was allotted to the Law Officer. As per Ext.A3, order dated 02.11.2002 respondent No. 2 has allotted quarter No. IV to the Additional Director of Health Service. Trial court and first appellate court accepted contention of respondent No. 2 and non-suited the appellant. Hence this Second Appeal raising the questions whether the finding of first appellate court that appellant is not entitled to claim right of occupation is contrary to law, whether dismissal of I.A. Nos. 2060 of 2004 and 2318 of 2007 by the first appellate court is correct and whether courts below acted contrary to law in non-suiting the appellant by relying on Ext.B3 as substantial questions of law. It is contended by learned Counsel for appellant that Ext.B3, the proceedings of respondent No. 2 cannot override the Government Servants'' Quarters Allotment and Occupation Rules, 1975 (for short, "the Rules"). It is contended by learned Counsel that first appellate court should have allowed request of appellant to amend the plaint challenging legality of Ext.B3.
2. It is not disputed that as per Ext.B1 appellant was permitted to occupy quarter No. IV on condition that she would vacate when eligible officials are to be accommodated in that quarter. Ext.B3 is the proceedings of respondent No. 2. Learned Counsel for appellant has invited my attention to Clause V of Ext.B3 where it is stated that "the occupants shall abide and the existing rules of the allotment and occupations of Government servants quarters in Kerala and also be liable to Kerala Public Buildings (eviction of unauthorised occupants) Act, 1968(XXV of 1968)". Learned Counsel would then invited my attention to Rule 2 of the Rules and contended that the quarter in question is under control of Public Works Department and hence the rule must apply.
3. Clause V in Ext.B3 relied on by learned Counsel does not say that so far as allotment of quarters to the officials of Health Services is concerned, rules would apply. Rule 2 of the Rules says that the Rule shall apply to all residential buildings under the control of the Public Works Department or the District Collector as the case may be and do not apply to buildings under the control of the other departments. Health Department is not brought within the purview of Rule 2 of the Rules. It is not disputed that allotment of the quarters belonging to the Health Department is as per the order of respondent No. 2. Necessarily, therefore, in the absence of other evidence I am to think that the quarters is under the control of respondent No. 2. In this case, allotment of quarters to the appellant was by respondent No. 1 acting under respondent No. 2. Therefore, in the light of Ext.B1, courts below have correctly held that appellant is bound by the condition in Ext.B1 that she should vacate when eligible candidates are to be accommodated. There is no duty enforceable in a court of law on the part of the respondents and any right in favour of the appellant to permit her to continue occupation of quarter No. IV.
4. On the contention that the amendment sought for in the first appellate court was not allowed, the first appellate court has exercised the discretion in refusing amendment to challenge the virus of Ext.B3. No question of law is involved in that matter. On going through the judgment under challenge and hearing learned Counsel I am not inclined to think any substantial question of law arise for a decision requiring admission of this Second Appeal.
5. Learned Counsel requested that appellant may be granted breathing time to vacate the quarter. However, without understanding the difficulties if any of the Department concerned I do not consider it justifiable or proper to grant time as requested by learned Counsel. But I make it clear that it will be open to respondent No. 2 to consider whether appellant could be permitted to continue in quarter No. IV or other quarters notwithstanding dismissal of this Second Appeal till eligible candidates are required to be accommodated if it is otherwise not inconvenient to the Department, ofcourse subject to the rules and regulations of the Department concerned and if the rules so permit.
With the above observation, this Second Appeal is dismissed in limine.
I.A. Nos. 2334 & 2407 of 2009 will stand dismissed.
