Central Administrative Tribunal - Allahabad
Nirmal Deo Malviya vs Secretary Ministry Of Defence on 22 December, 2023
(Reserved on 15.12.2023)
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH
ALLAHABAD
Pronounced on 22nd day of December 2023
Hon‟ble Dr. Sanjiv Kumar, Member (A)
Original Application No. 191 of 2020
1. Nirmal Deo Malviya, son of Late Rang Narayan Malviya, Office
of CQA(T&C) DGQA Stores Complex, Ashok Path Cantt, Kanpur-
04.
2. Virendra Prasad Shukla, daughter of Late Shiv Balak Ram
Shukla, Office of CQA(T&C) DGQA Stores Complex, Ashok Path
Cantt, Kanpur-04.
3. Sadhana Singh, W/O Mahendra Singh, Office of CQA(T&C)
DGQA Stores Complex, Ashok Path Cantt, Kanpur-04.
4. Dinesh Kumar Srivastava, son of Umesh Chandra Lal, Office of
CQA(T&C) DGQA Stores Complex, Ashok Path Cantt, Kanpur-04.
5. Pratibha Singh, W/O Vijay Bahadur Singh, Office of CQA(T&C)
DGQA Stores Complex, Ashok Path Cantt, Kanpur-04.
6. Veerpal Singh, son of Likhi Ram Singh, Office of CQA(T&C)
DGQA Stores Complex, Ashok Path Cantt, Kanpur-04.
7. Neeraj Bhadauria, son of Shri R.S. Sengar, Office of CQA(T&C)
DGQA Stores Complex, Ashok Path Cantt, Kanpur-04.
8. Shiv Nath Singh, son of Late Ram Kishor, Office of CQA(T&C)
DGQA Stores Complex, Ashok Path Cantt, Kanpur-04.
9. Anil Kumar Tripathi, son of Late Pyare Lal Tripathi, Office of
CQA(T&C) DGQA Stores Complex, Ashok Path Cantt, Kanpur-04.
10. Shailesh Chaudhery, son of Sri Krishan Kumar, Office of
CQA(T&C) DGQA Stores Complex, Ashok Path Cantt, Kanpur-04.
11. Ramesh Dutt Semwal, son of Late T.D. Semwal, Office of
CQA(T&C) DGQA Stores. Complex, Ashok Path Cantt, Kanpur-04.
12. Sanjay Saxena, son of Late P.P. Saxena, Office of CQA(T&C)
DGQA Stores Complex, Ashok Path Cantt, Kanpur-04.
13. Kamal Kumar, son of Late Lalta Prasad, Office of CQA(T&C)
DGQA Stores Complex, Ashok Path Cantt, Kanpur-04.
2
14. Shyam Babu, son of Late Ram Jas Office of CQA(T&C) DGQA
Stores Complex, Ashok Path Cantt, Kanpur-04.
15. Shalesh Kumar Kaushal, son of Devi Prasad Gupta, Office of
CQA(T&C) DGQA Stores Complex, Ashok Path Cantt, Kanpur-04.
16. Uma Shanker, son of Late. Meekha Ram, Office of CQA(T&C)
DGQA Stores Complex, Ashok Path Cantt, Kanpur-04.
17. Mithlesh Kumar, son of Late Babu Lal, Office of CQA(T&C)
DGQA Stores Complex, Ashok Path Cantt, Kanpur-04
18. Sanjay Dubey, son of Late Shriniwas, Office of CQA(T&C)
DGQA Stores Complex, Ashok Path Cantt, Kanpur-04.
19. Vivek Agnihotri, son of Krishna Kumar Agnihotri, Office of
CQA(T&C) DGQA Stores Complex, Ashok Path Cantt, Kanpur-04.
20. Janhavi Shukla, W/O Saurabh Shukla, Office of CQA(T&C)
DGQA Stores Complex, Ashok Path Cantt, Kanpur-04.
21. Amarjeet Ram, son of Late Bideshi, Office of CQA(T&C)
DGQA Stores Complex, Ashok Path Cantt, Kanpur-04.
22. Savitri Kureet, daughter of Late Mannu Lal, Office of
CQA(T&C) DGQA Stores Complex, Ashok Path Cantt, Kanpur-04.
23. Rajiv Kumar Tiwari, son of Bhoop Nath Tiwari, Office of
CQA(T&C) DGQA Stores Complex, Ashok Path Cantt, Kanpur-04.
24. Premlata Diwarar, daughter of Late Mannu Lal, Office of
CQA(T&C) DGQA Stores Complex, Ashok Path Cantt, Kanpur-04.
25. Peeyush Kumar Agnihotri, son of Late R.K. Agnihotri, Office
of CQA(T&C) DGQA Stores Complex, Ashok Path Cantt, Kanpur-
04.
26. Raj Kumar, son of Late Putti Lal, Office of CQA(T&C) DGQA
Stores Complex, Ashok Path Cantt, Kanpur-04.
27. Manoj Pandey, son of Harish Chandra Pandey, Office of
CQA(T&C) DGQA Stores Complex, Ashok Path Cantt, Kanpur-04.
28. Binda Charan, son of Late Lodhai, Office of CQA(T&C) DGQA
Stores Complex, Ashok Path Cantt, Kanpur-04.
29. Anoop Singh Guar, son of Vijay Singh Gaur, Office of
CQA(T&C) DGQA Stores Complex, Ashok Path Cantt, Kanpur-04.
30. Jasbir Singh, son of Late Jaspal Singh, Office of CQA(T&C)
DGQA Stores Complex, Ashok Path Cantt, Kanpur-04.
31. Meeta Singh, daughter of Brij Bhan Singh, Office of
CQA(T&C) DGQA Stores Complex, Ashok Path Cantt, Kanpur-04.
3
32. Smita Srivastava, daughter of Late Vinood Kumar Nigam,
Office of CQA(T&C) DGQA Stores Complex, Ashok Path Cantt,
Kanpur-04.
33. Anil Kumar Nigam, son of Jagat Narayan Nigam, Office of
CQA(T&C) DGQA Stores Complex, Ashok Path Cantt, Kanpur-04.
34. Manoj Kumar Yadav, son of Raj Kishor Singh, Office of
CQA(T&C) DGQA Stores Complex, Ashok Path Cantt, Kanpur-04.
35. Manesh Kumar Rai, son of Raj Kishor Singh, Office of
CQA(T&C) DGQA Stores Complex, Ashok Path Cantt, Kanpur-04.
36. Mahesh Kumar Rai, son of Raj Nath Rai, Office of CQA(T&C)
DGQA Stores Complex, Ashok Path Cantt, Kanpur-04.
37. Jayanto Banerjee, son of Ravindra Nath Banejee, Office of
CQA(T&C) DGQA Stores Complex, Ashok Path Cantt, Kanpur-04.
38. Nand Lal Kushwaha, son of Udit Ram Kushwaha, Office of
CQA(T&C) DGQA Stores Complex, Ashok Path Cantt, Kanpur-04.
39. Awnish Kumar Srivastava, son of Satya Narain Srivastava,
Office of CQA(T&C) DGQA Stores Complex, Ashok Path Cantt,
Kanpur-04.
40. Vinay Kumar Mishra, son of Ram Dulare Mishra, Office of
CQA(T&C) DGQA Stores Complex, Ashok Path Cantt, Kanpur-04.
41. Tilak Malhotra, son of Raj Kumar Malhotra, Office of
CQA(T&C) DGQA Stores Complex, Ashok Path Cantt, Kanpur-04.
42. Anil Kumar Yadav, son of Late N.S. Yadav, Office of
CQA(T&C) DGQA Stores Complex, Ashok Path Cantt, Kanpur-04.
43. Jitendra Dixit, son of Lat S.N. Dixit, Office of CQA(T&C)
DGQA Stores Complex, Ashok Path Cantt, Kanpur-04.
44. Rizwan Ul Haque, son of Masodul Haque, Office of CQA(T&C)
DGQA Stores Complex, Ashok Path Cantt, Kanpur-04.
45. Suraj Kumar, son of Late Mewalal, Office of CQA(T&C) DGQA
Stores Complex, Ashok Path Cantt, Kanpur-04.
46. Ajab Singh, son of Tej Bahadur Singh, Office of CQA(T&C)
DGQA Stores Complex, Ashok Path Cantt, Kanpur-04.
47. Rajendra Kumar Bhantu, son of Late Shiv Prasad, Office of
CQA(T&C) DGQA Stores Complex, Ashok Path Cantt, Kanpur-04.
48. Anita Singh, daughter of Lal Singh, Office of CQA(T&C)
DGQA Stores Complex, Ashok Path Cantt, Kanpur-04.
4
49. Nasir Jamal, son of Late Nafiz Ahmad Kha, Office of
CQA(T&C) DGQA Stores Complex, Ashok Path Cantt, Kanpur-04.
50. Pradeep Singh Kushwaha, son of Late MLS Kushwaha, Office
of CQA(T&C) DGQA Stores Complex, Ashok Path Cantt, Kanpur-
04.
51. Rakesh Kumar, son of Late Bihari Lal, Office of CQA(T&C)
DGQA Stores Complex, Ashok Path Cantt, Kanpur-04.
52. Kamal Kishor, son of late Arshaki Lal, Office of CQA(T&C)
DGQA Stores Complex, Ashok Path Cantt, Kanpur-04.
53. Chadi Lal, son of Late P Pal, Office of CQA(T&C) DGQA Stores
Complex, Ashok Path Cantt, Kanpur-04.
54. P.K. Gupta, son of B. R. Gupta, Office of CQA(T&C) DGQA
Stores Complex, Ashok Path Cantt, Kanpur 04.
55. Priya Yadav, daughter of Vijay Singh Yadav, Office of
CQA(T&C) DGQA Stores Complex, Ashok Path Cantt, Kanpur-04.
56. Anil Kumar Kanaujia, son of Late Sushil Kumar, Office of
CQA(T&C) DGQA Stores Complex, Ashok Path Cantt, Kanpur-04.
57. Moti Lal, son of Late Shriram, Office of CQA(T&C) DGQA
Stores Complex, Ashok Path Cantt, Kanpur-04.
58. Anil Kumar, son of Suraj Prasad, Office of CQA(T&C) DGQA
Stores Complex, Ashok Path Cantt, Kanpur-04.
59. Shailendra Kumar Chaturvedi, son of Girja Shankar
Chaturvedi, Office of CQA(T&C) DGQA Stores Complex, Ashok
Path Cantt, Kanpur-04.
60. Ram Saran, son of Mehtab Singh, Office of CQA(T&C) DGQA
Stores Complex, Ashok Path Cantt, Kanpur-04.
61. Harish Chandra Joshi, son of Late Laxmi Dut Joshi, Office of
CQA(T&C) DGQA Stores Complex, Ashok Path Cantt, Kanpur-04.
62. Ajay Kumar, aged about 61 years, son of Late Ram Chandra,
Office of CQA(T&C) DGQA Stores Complex, Ashok Path Cantt,
Kanpur-04.
63. Deepak Singh Rathor, son of Late Pratap Singh, Office of
CQA(T&C) DGQA Stores Complex, Ashok Path Cantt, Kanpur-04.
64. S.P. Singh, son of Ram Bahadur Singh, Office of CQA(T&C)
DGQA Stores Complex, Ashok Path Cantt, Kanpur-04.
65. Vikash Gupta, son of Late S.K. Gupta, Office of CQA(T&C)
DGQA Stores Complex, Ashok Path Cantt, Kanpur-04.
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66. Rakesh Kumar Yadav, son of Late Sri Ram Yadav, Office of
CQA(T&C) DGQA Stores Complex, Ashok Path Cantt, Kanpur-04.
67. Rajesh Singh, son of Late Ambika Singh, Office of CQA(T&C)
DGQA Stores Complex, Ashok Path Cantt, Kanpur-04.
68. Arup Kumar Chakravarty, son of Late H.N. Chakravarty,
Office of CQA(T&C) DGQA Stores Complex, Ashok Path Cantt,
Kanpur-04.
69. Sudhir Kumar Shukla, son of Late R.P. Shukla, Office of
CQA(T&C) DGQA Stores Complex, Ashok Path Cantt, Kanpur-04.
70. Ajay Kumar, son of Late Shiv Lal, Office of CQA(T&C) DGQA
Stores Complex, Ashok Path Cantt, Kanpur-04.
71. Bhagwan Deen Maurya, son of Late Sada Shiv, Office of
CQA(T&C) DGQA Stores Complex, Ashok Path Cantt, Kanpur-04.
72. Dhirendra Kumar, son of Late Shiv Prasad, Office of
CQA(T&C) DGQA Stores Complex, Ashok Path Cantt, Kanpur-04.
73. Asha Shukla, daughter of B. S. Vajpai, Office of CQA(T&C)
DGQA Stores Complex, Ashok Path Cantt, Kanpur-04.
74. Godavri Verma, daughter of Late R.V. Rastogi, Office of
CQA(T&C) DGQA Stores Complex, Ashok Path Cantt, Kanpur-04.
75. Rajendra Prasad Dubey, son of Manna Lal Dubey, Office of
CQA(T&C) DGQA Stores Complex, Ashok Path Cantt, Kanpur-04.
76. Ashish Trivedi, son of S. N. Trivedi, Office of CQA(T&C)
DGQA Stores Complex, Ashok Path Cantt, Kanpur-04.
77. Chandra Kumar, son of Late Ram Narayan, Office of
CQA(T&C) DGQA Stores Complex, Ashok Path Cantt, Kanpur-04.
78. Raj Kumar, son of Late Bhagwan Das, Office of CQA(T&C)
DGQA Stores Complex, Ashok Path Cantt, Kanpur-04.
79. Devi Prasad, son of Late Bhola, Office of CQA(T&C) DGQA
Stores Complex, Ashok Path Cantt, Kanpur-04.
80. Manohar Lal, son of Late Baldi, Office of CQA(T&C) DGQA
Stores Complex, Ashok Path Cantt, Kanpur-04.
81. Rajendra, son of Late Kalkatti, Office of CQA(T&C) DGQA
Stores Complex, Ashok Path Cantt, Kanpur-04.
. . .Applicants
Advocate for the applicant : Shri Vipul Dubey
6
VERSUS
1. Union of India through its. Secretary, Ministry of Defence,
South Block, New Delhi.
2. Director General of Quality Assurance, Department of Defence
Production, Government of India, Ministry of Defence, Room No.
308A, D-1 Wings, Sena Bhawan, New Delhi.
3. Additional Director General of Quality Assurance (Stores),
Department of Defence Production, Government of India,
Ministry of Defence, D.H.Q., Post Office, New Delhi-110011.
4. Controller, Controllerate of Quality Assurance, (Textiles &
Clothing) DGQA (Stores) Complex Ashok Path Cantt, Kanpur -
208004.
5. Administrative Officer, Controllerate of Quality Assurance
(Textiles & Clothing) DGQA (Stores) Complex Ashok Path Cantt,
Kanpur - 208004.
. . .Respondents
Advocate for the respondents: Shri Vinod Mishra
ORDER
This original application has been filed under section 19 of Administrative Tribunals Act 1985 seeking relief to set aside the Daily Order part -1 no. 18 dated 03.02.2020 passed by the respondent no. 5 and to issue order restraining the respondents from taking coercive action and recovery of HRA from the applicants w.e.f. 07.03.2004. Prayer has also been to issue direction to the respondents to grant all consequential benefits to the applicants ignoring the order dated 03.02.2020.
2. The facts of the case, in brief, are that they are all class III and IV civilian employees in the office of the Controlletrate of Quality Assurance (General Stores), Kanpur which is one of the units of the Ministry of Defence and vide the impugned order dated 03.02.2020, the respondents have proposed a recovery of 7 non-entitled HRA as per directions of HQ DGQA in two phases. The contention of the applicants is that they have not committed any fraud or mistake or mischief and manipulated the disputed amount of so called non-entitled HRA. In support of their case, the applicants stated that in the department, there was rule that if the government accommodation is not provided to an employee and a certificate of non-accommodation is given, such employees were entitled for HRA but as procedures were not laid down hence, the Ministry of Defence, DGQA/ADM/RMD (CW) vide order dated 13.06.2005 No. 81397/DGQA/ADM/RMD (CW) had decided that till procedure for regulation of grant of "no accommodation" certificate is finalized, HRA shall be paid to all employees who are not in possession of government accommodation till further orders and those denied HRA in the intervening period from issue of the order till date of this clarification shall also be paid HRA denied on the ground of not submitting "no accommodation" certificate. As the applicants had not been provided any accommodation, therefore, in the light of the aforesaid order, without a "no-accommodation" certificate, they were granted HRA by the competent authority and they utilized the same for obtaining their private accommodation.
3. Subsequently, the respondents issued order no. 86710/DGQA/ADM/RMD (CW) dated 16.03.2018 providing guidelines relatable to allotment of entitled accommodation of grant of HRA to civilian employees in DGQA and also regarding issuance of "no accommodation" certificate etc. The respondents 8 also issued another order No. A/97401/Complaint/JJ/DGQA (Vig. Cell)/PC dated 03.05.2018 whereby the authorities were asked for examining certain cases involving drawal of HRA by DGQA officers in contravention of the existing guidelines on the subject and to recover the HRA forthwith in such cases where same has been drawn wrongly. Thereafter, the respondents vide order dated 06.09.2019 bearing no. A/81397/DGQA/ADM/RMD (CW) cancelled the office note dated 13.06.2005 mentioning therein that the grant of HRA to DGQA civilian employees will be made in accordance with SRO 31 and is effective from the date of publication of the Gazette Notification i.e. 07.03.2004. On 07.09.2003, another office note was issued regarding investigation into erroneous grant and recovery of "non- entitled" HRA which were followed by the several letters on the subject which finally culminated into the impugned order of recovery dated 03.02.2020. Aggrieved by the same the applicants have approached this Tribunal and obtained stay against the impugned order on 20.03.2020.
4. The main contention of the applicants is that the action of the respondents is violative of principles of natural justice as the aforesaid order dated 03.02.2020 has been passed without giving opportunity of hearing. In this regard, they rely on the judgment of Hon‟ble Apex Court in the case of Bhagwan Shukla Vs. Union of India and others - AIR 1994 (Supreme Court) 2480. They further say that they have not committed any fraud or mistake or mischief and manipulated the 9 disputed amount of so called non-entitled HRA, hence in the light of judgment of Hon‟ble Apex Court in the case of State of Punjab and others Vs. Rafiq Masih (White Washer) and others - (2015) 4 SCC 334, the recovery cannot be made as the error has been committed by the employers themselves and they had issued the initial order dated 13.06.2005, which they themselves had cancelled subsequently on 06.09.2008 but they did not implement their subsequent cancellation order; and by their impugned order, they want to effect retrospective recovery from 2004, which is against the law and rules.
5. Upon notice, the respondents have filed counter affidavit wherein they have stated that the DO Part-I No. 18 dated 03.02.2020 is issued by CQA (Textiles & Clothing), Kanpur, which states that HRA be recovered in two phases. Phase-I dealt with recovery of HRA without NAC after 03.05.2018 and phase-II was to recover HRA from 03.03.2004 to 03.05.2018. They say that the schedule of recovery of HRA was given month wise to avoid recovery of HRA in a single installment to avoid any undue hardship to the employees. The respondents further contended that the implementation of SRO 31 dated 27.02.2004 notified on 07.03.2004 was kept in abeyance by the DGQA vide letter No. A/81397/DGQA/ADM/RMD (Civ) dated 13.06.2005 which was reviewed by the MoD and the authorities were instructed for strict compliance with the provisions of SRO 31 dated 27.02.2004 vide DGQA letter No. A/81397/DGQA/ADM/RMD (Civ) dated 06.10.2008 and resultantly, it was made amply clear to all employees that they 10 cannot claim HRA without obtaining "no accommodation"
certificate from the competent authority in conformity with the provisions of SRO 31 dated 27.02.2004. The rationale of government policy is that the public funded government accommodation must be efficiently utilized and a situation should not exist where government accommodations are lying vacant and on the contrary employees are drawing HRA from the government. They further say that those occupying government accommodation or refusing were not eligible for HRA. The grant of HRA shall be subject to the following conditions: -
"To those civilians serving in DGQA who are eligible for Govt. accommodation the allowances will be admissible only if they have applied for such accommodation in accordance with the prescribed procedure but have not been provided with it, in places where due to availability of surplus Govt. accommodation, special orders are issued by the DGQA HQ from time to time making it obligatory for employees concerned to obtain and furnish „no accommodation" certificate in respect of Government residential accommodation at their place of posting."
6. The respondents further say that OM dated 05.03.2019 issued by Ministry of Finance is applicable only to general pool residential government accommodation (GPRA) operated under the aegis of Directorate of Estates of Ministry of HUA. The aforesaid memorandum makes it amply clear that the departments, which have separate pool of accommodation, may adopt the provisions wherever feasible. They say that the ibid 11 OM is applicable from the date of issue of OM dated 05.03.2019 and not prior to that date. The respondents further say that as per the existing rules, the recovery has been ordered as per rule and non entitlement, hence there is no merit in the case of the applicants and the OA may be dismissed.
7. The applicants have filed rejoinder wherein they reiterate their stand in the OA. However, they emphasized that there is no fault on their part in getting HRA and as it has already been availed by the applicants, hence the authorities in the light of various Apex Court judgments, cannot recover the said amount from the applicants. They further contended that there is no provision under the statutory rules of 1996 and the relevant circulars/orders issued by the competent authority from time to time conferring power and competence upon the respondent no. 4 to issue the impugned order for withdrawal of benefit of HRA already extended upon the applicants with retrospective effect i.e. from 07.03.2004 and therefore, in the absence of any such enabling provision under the Rules or the circular/order issued from time to time, the impugned Daily Order Part-I No. 20/AD dated 30.01.2020 stands without jurisdiction and as such is liable to be quashed. The applicants further emphasized that the issue regarding "no accommodation" certificate is pending consideration and during the pendency of the said issue, it was decided by the competent authority to extend the benefit of HRA to all applicants and that benefit was extended and the HRA was paid to the applicants. They further contended that there is no 12 averment in the counter affidavit that the applicant played any fraud or misrepresented the facts in obtaining such benefits, therefore, the action of the respondents in issuing impugned order is illegal and as such the same is liable to be quashed.
8. The case came up for final hearing on 15.12.2023. Shri Vipul Dubey, learned counsel for the applicants and Shri Vinod Mishra, learned counsel for the respondents were present and both were heard. I have carefully gone through the entire record, and considered the rival contentions.
9. From the averments of the either parties, it is very clear that the basic facts of the case are not disputed that the authorities themselves issued the order dated 13.06.2005 regarding payment of HRA to the civilian employees of DGQA, which reads as under: -
"1. In continuation of this office letter No. 81397/DGQA/ADM/RMD/(CW) dated 20 August 2004, the issue of "No accommodation" certificate as a pre- requisite for drawal of HRA has been examined in consultation with Ministry of Defence and Directorate of Estate, Ministry of Urban Development.
2. It has been decided that till procedure for regulation of grant of "no accommodation" certificate is finalized, HRA shall be paid to all employees who are not in possession of government accommodation till further orders and those denied HRA in the intervening period from issue of the order till date of this clarification shall also be paid HRA denied on the ground of not submitting "no accommodation" certificate.
3. The relevant provision of allotment Rule promulgated in SRO 1E, SRO 31 and letter No. 13 81397/DGQA/ADM/RMD/(CW) dated 20 August 2004 shall be held in abeyance till further orders on this subject."
10. Simple reading of the aforesaid order, in para 2 clearly says that till procedure for regulation of grant of "no accommodation" certificate is finalized, HRA shall be paid to all employees who are not in possession of government accommodation till further orders. As it is not disputed that the applicants were not having any government accommodation and hence, pursuant to this circular, without "no accommodation"
certificate, the authorities granted them HRA and continued to grant it them. From the record, it is also clear that grant of HRA without "no accommodation" certificate to such employees, who have not been given government accommodation, there was no fault of the applicants. Also there is no case of fraud, manipulation or misrepresentation on the part of the applicants.
However, the order dated 13.06.2005 was withdrawn vide MoD order No. A/81397/DGQA/ADM/RMD (CW) dated 06.10.2008, which reads as follows: -
"PAYMENT OF HRA TO CIVILIAN EMPLOYEES OF DGQA
1. Further to this office note of even number dated 13.06.2005.
2. Above quoted note withholding implementation of SRO 31 and relevant provision of grant of HRA without „NAC‟ is hereby cancelled. All establishments under your administrative control may be informed accordingly for compliance.
3. Ministry of Defence and LA (Defence have been consulted. Grant of HRA will be made in accordance with SRO 31."14
11. Simple reading of the aforesaid quoted paragraph shows that withholding SRO 31 and relevant provision of grant of HRA without NAC was cancelled on 06.10.2008. Implication of this order cited by the respondents in their counter is that any payment of HRA without NAC to such civil employees who were not given government accommodation, giving them HRA was as proper and as per the circular/instructions of the authorities themselves, and the authorities were at fault in considering such payments as irregular and ordering recovery. But after 06.10.2008, it was surprising that inspite of the cancellation of earlier instructions, the respondents‟ authorities and HRA disbursing officer went ahead to disburse HRA pursuant to the earlier MoD letter dated 13.06.2005 on payment of HRA to the civilian employees of DGQA which provided relaxation that "no accommodation" certificate may not be required till finalization of the procedure for the same and only much later in the year 2018, inquires were ordered and authorities became strict on the issue and realized illegitimate expenditure against their own rule and more stricter letter was issued on 03.05.2018 on investigation into erroneous grant and recovery of "non-entitled‟ house rent allowance claim of officers of HQ DGQA, which reads following :-
"INVESTIGATION INTO ERRORENOUS GRANT AND RECOVERY OF NON-ENTITLED HOUSE RENT ALLOWANCE CLAIM OF OFFICERS OF HQ DGQA
1. While examining certain cases involving drawal of HRA by DGQA Officers in contravention to the existing guidelines on the subject, Secretary (DP) has directed to conduct detailed investigation and recover forthwith the HRA in such cases where same has been drawn by / granted to the officers of DGQA Estes.r
2. The guidelines relevant to the case are as under- 15
(a) SRO 315 lays down that the grant HRA shall be subject to the conditions to these civilians serving in DGCA, Establishments, who are eligible for Govt. Accommodation, the allowances will be admissible only if they have applied for such accommodation in accordance with the prescribed procedure but have not been provided with it, in places where due to availability of surplus Government accommodation, special orders are issued by the Directorate General of Quality Assurance HQ from time to time making it obligatory for employees concerned to obtaining and furnish 'No Accommodation Certificate" in respect of Government residential accommodation at their place of posting.
(b) CGDA circular No. AN/XII/18001/Gri dated 21.11.2000.
(C) CGDA Circular No. AN/SIV/14152/HRA/CCA/Vol-X, dated 19.03.2011.
(d) CGDA vide circular: No. AX/X/10001/1/GH dated 05 Jan 2017 has reiterated that comprehensive guidelines have been issued vide Circular dated 21 November 2000 to regulate the stay of officials at Guest Houses Transit accommodations. It has again been clarified as in the circular that those residing in Government accommodation be it inspection Quarter or Transit Facility or Guest House shall not be granted HRA.
3. In view of above you are directed to identify such cases and recover forthwith erroneously granted HRA from the officers concerned. A periodic _____status report shall be forwarded to Director (Vigilance)/DGQA until compliance of recovery or otherwise to enable this HQ to submit a final action taken report to the Secy (OF) through MoD/D(Vig)/DDP
4. This shall be accorded priority."
12. Subsequently, on 06.09.2018, another strict order was issued, which was followed by the inquiries and subsequent order for recovery was passed. The order dated 06.09.2018 reads as under: -
"PAYMENT OF HRA TO CIVILIAN EMPLOYEES OF DGQA 1 Ref:
(a) SRO-31 dt 07 Mar 2004.
(b) No. A/81397/DGQA/ADM/RMD(CW) dt. 20 Aug 2004.
(c) No. A/81397/DGQA/ADM/RMD(CW) dt. 13 Jun 2005.
(d) No. A/81397/DGQA/ADM/RMD(CW) dt. 06 Oct 2008 16 2 This office Note of even No. dt 13 Jun 2005 has been cancelled vide Note of even No. dt 06 Oct 2008.
3. The Grant of HRA to DGQA civilian employees will be made in accordance with SRO 31 and is effective from the date of publication of the Gazette Notification ie 07 Mar 2004(Ref Note of even No. dt 20 Aug 2004).
4 Tech Directorates are requested to disseminate the above information to all establishments under their control."
13. Although the Ministry of Expenditure issued O.M dated 05.03.2019 on dispensation of conditions of applying for Government Accommodation and furnishing of „No Accommodation Certificate‟ for admissibility of House Rent Allowance, which reads as under: -
"OFFICE MEMORANDUM Subject.-Dispensation of conditions of applying for Government Accommodation and furnishing of 'No Accommodation Certificate' for admissibility of House Rent Allowance.
Several references are being received in this Department to review the condition of applying for Government Accommodation and furnishing of 'No Accommodation Certificate for admissibility of House Rent Allowance' as contained in Para 4(a) of this Department's O.M. No. 2(37)-E.II(B)/64 dated 27.11.1965 read with Para 1(1) of O.M. No. 11011/1/E.II(B)/75 dated 25.02.1977.
2. The matter has been examined in this Department and in supersession of Para 4(a) of this Department's OM. No 2(37)-E II (B)/64 dated 27.11.1965 read with Para 1(1) of O.M. No 11011/1/EI(B)/75 dated 25.02.1977 and to simplify the procedure relating to grant of House Rent Allowance to Central Government employees, the President, in consultation with Ministry of Housing and Urban Affairs and the Staff Side of the National Council (J.C.M.), is pleased to decide that the conditions of applying for Government Accommodation and furnishing of 'No Accommodation Certificate' by Central Government employees to become eligible for House Rent Allowance, are dispensed with for all places, in respect of General Pool Residential Accommodation (GPRA) controlled by Directorate of Estates.
3. Ministries/Departments having their separate pool of residential accommodation for their employees other than GPRA, may adopt these provisions, wherever feasible.
4 These orders shall be effective from the date of issue of the orders.
5. in so far as the persons serving in the Indian Audit and Accounts Department are concerned, these orders issue in consultation with the Comptroller & Auditor General of India.17
As per the above quoted order, the MoD and DGQA having separate pool of residential accommodation could have adopted these provisions wherever feasible. It is not clear from the averments of the parties if the MoD adopted the same.
14. As in this case, clearly the respondents authorities are solely responsible for disbursal of HRA without obtaining "no accommodation" certificate, as was laid down by procedure and they themselves vide order dated 13.06.2005 had kept the said procedure in abeyance till the procedure of regulation for grant of "non accommodation" certificate was finalized and said confusion was although reversed by their own letter dated 06.10.2008 , but again the authorities themselves were responsible for not implementing this order and they continued to implement their earlier order dated 13.06.2005 and went on to disburse HRA to such employees, who were not having government accommodation and had not obtained "non accommodation" certificate, so putting onus of irregularity on the applicants is not substantiated by the respondents.
15. From the above, it is clear that there is no fault or any misrepresentation or misappropriation on the part of the applicants, hence any recovery from them would be hit by the Judgment of Hon‟ble Apex Court in the case of State of Punjab and others Vs. Rafiq Masih (White Washer) and others - (2015) 4 SCC 334, wherein following has been laid down: - 18
"18. It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery , where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decision referred to herein above, we may, as a ready reference, summaries the following few situations, wherein recoveries by the employers, would be impermissible in law: -
(i). Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).
(ii). Recovery from retired employees, or employees who are due to retire within one year of the order of recovery.
(iii). Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.
(iv). Recovery in cases where an employee has wrongly been required to discharge duties of a higher post and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.
(v). In any other case, where the Court arrives at the conclusion, that recovery, if made from the employees, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover."
16. Having regard to the facts and circumstances of the case as well as the various circulars / orders issued by the respondents and in the light of the judgment of Hon‟ble Apex Court in the case of Rafiq Masih (Supra), I have no doubt in my mind that balance of convenience is in the favour of the applicants. Hence, the OA is allowed. The order dated 03.02.2020 passed by the respondent no. 5 is set aside as far as the applicants are concerned and the respondents are restrained from making any recovery pursuant to the impugned order dated 03.02.2020 from the applicants w.e.f. 07.03.2004 and they can 19 implement their policy on HRA prospectively and not retrospectively. It is also directed that if at all any recovery pursuant to the impugned order is made from the applicants, the same shall be refunded to them with 6% interest within a period of three months from the date of receipt of certified copy of this order.
17. All associated Misc. Applications stand disposed off.
18. No order as to costs.
(Dr. Sanjiv Kumar) Member (A) Anand...