Central Administrative Tribunal - Jaipur
G L Kumawat vs M/O Defence on 31 May, 2024
1
OA No. 532/18, OA No.535/18, OA No.536/18,
OA No.55/19 & OA No.57/19
CENTRAL ADMINISTRATIVE TRIBUNAL
JAIPUR BENCH, JAIPUR
...
ORIGINAL APPLICATION No. 532/2018,
ORIGINAL APPLICATION No. 535/2018,
ORIGINAL APPLICATION No. 536/2018,
ORIGINAL APPLICATION No. 55/2019 &
ORIGINAL APPLICATION No. 57/2019
Order reserved on : 26.04.2024
Date of order: 31.05.2024
CORAM:
HON'BLE MS. RANJANA SHAHI, MEMBER (J)
HON'BLE SHRI LOK RANJAN, MEMBER (A)
OA No. 532/2018
Ashok Kumar Sharma Son of Sh. P.R. Sharma, Age around
57 years, R/o 60-B, Ganesh Marg, Surya Nagar, Gopalpura
By-pass, Jaipur and working as Technical Officer, in the
office of Chief Engineer, Hq. , Jaipur Zone, Jaipur-302006
...Applicant
(By Adv: Shri Mukesh Agarwal)
Versus
1. Union of India through the Secretary, Ministry of
Defence, South Block, New Delhi.
2. Director General Personnel/EIB, Engineer-in-Chief's
Branch, Integrated HQ of MOD (Army), Kashmir
House, Rajaji Marg, New Delhi -- 110011.
3. Chief Engineer (Hq), South West Command C/o 56
APO.
2
OA No. 532/18, OA No.535/18, OA No.536/18,
OA No.55/19 & OA No.57/19
4. Chief Engineer, Head Quarters, Jaipur Zone, MES,
Power House Road, Bani Park, Jaipur-302006.
...Respondents.
(By Adv: Shri A.S. Shekhawat)
OA No. 535/2018
G.L. Kumawat (MES No. 186078) S/o Late Sh. M. L.
Kumawat, age around 58 years, R/o- A 31, Bhan Nagar,
Queens Road, Jaipur-302021. At present working as
Technical Officer, in the office of HQ, South West
Command, Jaipur.
...Applicant
(By Adv: Shri Mukesh Agarwal)
Versus
1. Union of India through the Secretary, Ministry of
Defence, South Block, New Delhi. - 110001
2 Chief Engineer (Hq.), South West Command, PIN-
908546 C/o 56 APO.
.........Respondents
(By Adv: Shri A.S. Shekhawat)
OA No. 536/2018
S.K. Jain (MES 186064) S/o Late Sh. Lal Chand Jain, age
around 59 years, R/o- 91/16 Patel Marg, Mansarovar,
Jaipur-302020. At present working as Technical Officer, in
the office of HQ, Commander works Engineers, Kalyan
Marg, Bani Park, Jaipur.
...Applicant
(By Adv: Shri Mukesh Agarwal)
3
OA No. 532/18, OA No.535/18, OA No.536/18,
OA No.55/19 & OA No.57/19
Versus
1. Union of India through the Secretary, Ministry of
Defence, South Block, New Delhi. 110001
2. Chief Engineer (Hq), South West Command, PIN-
908546 C/o 56 APO.
3. Chief Engineer, Head Quarters, Jaipur Zone, MES,
Power House Road, Bani Park, Jaipur-302006.
4. Commander Works Engineer, Head Quarters, Kalyan
Marg, Bani Park, Jaipur-302006.
.........Respondents
(By Adv: Shri A.S. Shekhawat)
OA No. 55/2019
Kailash Chandra Gupta (MES No. 167978) S/o Late Sh.
Nanag Ram Gupta, age around 59 years, R/o- 25-A, Sundar
Nagar, Khatipura, Jhotwara, Jaipur. At present working as
Technical Officer, in the office of HQ, Chief Engineer, South
West Command, Jaipur. Group-'B'
...Applicant
(By Adv: Shri Mukesh Agarwal)
Versus
1. Union of India through the Secretary, Ministry of
Defence, South Block, New Delhi-110011.
2. Chief Engineer (Hq.), South West Command, PIN-
908546 C/o 56 APO.
.........Respondents
(By Adv: Shri Manish Kumar Sharma)
4
OA No. 532/18, OA No.535/18, OA No.536/18,
OA No.55/19 & OA No.57/19
OA No. 57/2019
Ashok Kumar Sharma (MES No. 192325) S/o Late Shri Brij
Mohan Sharma, age around 59 years, R/o- 20-A, Ganesh
Vihar, Gopalpura By-Pass, Jaipur-302018. At present
working as Technical Officer, in the office of HQ Chief
Engineer Jaipur Zone, Jaipur (MES).
...Applicant
(By Adv: Shri Mukesh Agarwal)
Versus
1. Union of India through the Secretary, Ministry of
Defence, South Block, New Delhi-110001.
2. HQ Chief Engineer. South West Command, PIN
908546 C/o 56 APO.
3. Head Quarters Chief Engineer Jaipur Zone, MES,
Power House Road, Bani Park, Jaipur-302006.
.........Respondents
(By Adv: Shri Manish Kumar Sharma)
ORDER
Per : Hon'ble Shri Lok Ranjan, Member (A)
At the request of learned counsels for the parties, the Original Applications vide OA No. 532/2018, OA No. 535/2018, OA No. 536/2018, OA No. 55/2019 & OA No. 57/2019 are taken up together for disposal, as common questions of law and facts are stated to be involved in all the aforesaid cases. At the further request of the learned 5 OA No. 532/18, OA No.535/18, OA No.536/18, OA No.55/19 & OA No.57/19 counsels for the parties, the arguments were done for the O.A. No.532/2018. Thus, for the sake of brevity and convenience, the facts and arguments are borrowed from O.A.No.532/2018, Ashok Kumar Sharma (Applicant) Vs Union of India & Others (Respondents).
2. The Applicant in the present O.A. was aggrieved by the Respondents' actions - of allotting him a Government residence vide the impugned communication dated 27.09.2018, in spite of his not having applied for the same and despite his staying in his own house at the station of posting ; and thereafter, of denying him House Rent Allowance (HRA) - claiming that such actions were against the provisions of the Allotment of Residence (Defence Pool Accommodation for Civilians in Defence Service) Rules, 1978[hereafter, the AOR (DPACDS) Rules, 1978] and the Government of India, Ministry of Finance, Department of Expenditure Office Memorandum No.F2(37).EII(B)/64 dated 27.11.1965 (as amended from time to time) that were applicable in this regard.
3. The matrix of facts relevant to the present case emerged from the pleadings and related presentations as follows briefly. The Applicant in the present O.A. was 6 OA No. 532/18, OA No.535/18, OA No.536/18, OA No.55/19 & OA No.57/19 initially appointed as Draftsman Grade-II on 31.05.1983 ; thereafter promoted in situ as Draftsman Grade-I w.e.f. 03.04.2000 ; and further promoted to the post of Technical Officer on 20.10.2007. He was eventually posted in the Respondent Department as Technical Officer in the Office of Chief Engineer, HQ, MES Jaipur since 23.07.2016.He had got his own house constructed at Jaipur - the station of his posting- and was residing in the same ; and hence had not applied for allotment of the Government Defence Pool accommodation ; and the Respondents had also been paying HRA to the Applicant in the present O.A. every month. But vide letter dated 10.11.2017 of Director (Pers & Legal) at EIO (Estt) Section, inter alia the Applicant in the present O.A. was directed to submit application for Government accommodation by 20.11.2017, failing which HRA would not be claimed from December-2017 and onward. At first, he had submitted his request dated 17.11.2017, praying that since Jaipur was his home town where he already owned a house for which EMIs were being paid ; and since he also had an autistic child, he may not be offered Government accommodation and HRA be continued to be paid to him as per entitlement. 7
OA No. 532/18, OA No.535/18, OA No.536/18, OA No.55/19 & OA No.57/19
4. Later, on 07.12.2017, the Applicant in the present O.A. had submitted an application for Government accommodation purportedly as that was made out to be a pre-condition for payment of HRA to him, while also indicating therein that he was living in his own house and be issued an NOC accordingly. Eventually, the Respondent No.3 had issued a certificate dated 13.06.2018 to the effect that entitled Government accommodation was not available for allotment at that time. Later however, vide letter dated 27.09.2018 for Allotment of MES Civilian Accommodation, the Respondent No.3 allotted a Government accommodation to the Applicant in the present O.A. with the condition that in case he failed to accept the allotment within eight days, he shall not be eligible for another allotment for a period of one year from the date of allotment letter and HRA would not be admissible for the period debarred for further allotment.
5. The Applicant in the present O.A. then submitted a representation dated 01.10.2018 to Respondent No.3,seeking cancellation of allotment of Staff quarter to him - on the grounds inter alia, that he had applied for allotment of accommodation only in the reckoning that he will be paid HRA only if he had applied for and had been 8 OA No. 532/18, OA No.535/18, OA No.536/18, OA No.55/19 & OA No.57/19 denied Government accommodation ; that the station roster indicating seniority-wise eligibility for allotment of available Government accommodation was required to be prepared and circulated as per the applicable Rules, which was not done duly prior to the meeting of July-2018 of the Quartering Committee ; and that other officials senior to him as such were not allotted Government accommodation and were also being paid HRA. The said representation had elicited no response or action in follow-up for redressing the issues raised therein.
6. The Applicant in the present O.A. contended that the impugned action of the Respondent No.3 was taken without following the AOR (DPACDS) Rules, 1978 as allotment of the Government Defence Pool accommodation was made without any request being made by him ; in that it was not as per the Rule 4 regarding classification of residences, as the Explanation thereof provides for determining the eligibility and priority of officers for allotment of residences inter alia to be as : "(a) the eligibility of an officer for government accommodation shall be determined as per the Grade Pay of such officer in his present post held in Government of India." ; and "(b)the date of priority in respect of lower type accommodation i.e. Type-I to Type-IV 9 OA No. 532/18, OA No.535/18, OA No.536/18, OA No.55/19 & OA No.57/19 shall be the date of joining in the service of Government of India."He also cited the cases of one Shri Rajendra Prasad (TO in the Office of CE MES, HQ Jaipur Zone) and another Shri Mukesh Sharma (AGT in the Office of GE, Jaipur)- both of whom were in the same Grade Pay as the Applicant in the present O.A., but were purportedly much senior to him at his posting station as per the applicable AOR(DFACDS) Rules, 1978 - who were not allotted the Government accommodation and were also being paid HRA. It was thus the case of the Applicant in the present O.A. that allotment of Government accommodation to him was made out-of- turn only with the intention to deprive him from HRA ; and was thus discriminatory, arbitrary and illegal. Hence, it was prayed that the impugned letter dated 27.09.2018 of the Respondent No.3 for allotment of MES civil accommodation be quashed and set aside qua the Applicant in the present O.A. Further, it was prayed that the action of denying HRA to him from October-2018 and onward be declared null and void and the Respondents be directed to pay HRA as per applicable Rules.
7. Moreover, as an additional difficulty uniquely faced by him, the Applicant in the present O.A. had mentioned that his son was suffering from moderate to severe mental 10 OA No. 532/18, OA No.535/18, OA No.536/18, OA No.55/19 & OA No.57/19 retardation (Autistic) that tends to permanent physical disability of 100%, - as evidenced by Medical Board Certificate, SMS Medical College and Hospital, Jaipur dated 25.07.2007. His son required special and constrained care and environment suitable to his needs; and was at present enrolled in Umang, an initiative towards rehabilitation of persons with disability, about 1 Km. from his residence. The Applicant had relied upon the instructions vide O.M. dated 06.06.2014 of the Department of Personnel & Training (DOP&T) on the subject of "Posting of Government employees who have differently abled dependents" to claim that because the rehabilitation is a continuous process and creation of such support system takes year together, the new environment / set-up due to displacement of a Government employee who had disabled child could prove to be a hindrance for the rehabilitation process of the child. It was therefore instructed that a Government servant who was a care giver of a disabled child may be exempted from the routine exercise of transfer / rotational transfer subject to administrative constraints. The Applicant contended that he was living in his own house since long and set-up its environment as per need of his disabled child and also got him enrolled in a school for rehabilitation of persons with disability near his own house. Hence, in the circumstances 11 OA No. 532/18, OA No.535/18, OA No.536/18, OA No.55/19 & OA No.57/19 where change of accommodation may be hindrance in the rehabilitation process of his autistic son - both due to change of environment/ set-up and due to its distance at about 15 Km. from his school - the Applicant was not in a position to shift to the allotted Government residence. It was thereby claimed that non-consideration of this situation of the Applicant in the present O.A. by the Respondents and denial of HRA to him from October-2018 and onward was totally illegal and arbitrary.
8. Per contra, the Respondents have denied the contention in the O.A. of the Applicant, other than the matters of fact. They stated that the Government accommodation was allotted to the Applicant in the present O.A. as per recommendations of the Quartering Committee in accordance with the rules in vogue - in that this was made pursuant to his application dated 07.12.2017 and as per availability and in the order of seniority being maintained for Type-IV accommodation inter alia. In elaboration thereof, the Respondents had averred that the Applicant had applied on 07.12.2017 indicating that he was entitled for a Type-IV accommodation ; and also stating -
"Living in own house. Pl issue NOC". Pursuant to this, a Non-Availability Certificate (NAC) dated 13.06.2018 was 12 OA No. 532/18, OA No.535/18, OA No.536/18, OA No.55/19 & OA No.57/19 issued by the Respondent No.4 stating that : "It is certified that the application for allotment of Govt md accn (Type-
IV) has been received from MES-186095 Sh. Ashok Kumar Sharma, TO of HQ CE Jaipur Zone on 08 Dec 2017. At present, entitled Govt. Md Accn is not available for allotment." Moreover, the Respondents had averred that they had maintained the Seniority List of civilian MES employees for the allotment of Government Married Accommodation, inter alia for the Type-IV accommodation ;
and that the said Seniority List was duly considered during the Quartering Committee (QC) Meeting by a Board of Officers for the month of July-2018 dated 27.09.2018. While submitting a copy of the said Seniority/Priority List as part of their Reply, the Respondents had also averred that the order of seniority therein had been followed in seriatim and decision to omit any employees at their turn - namely one Shri Rajendra Prasad, TO in the Office of CE MES, HQ Jaipur Zone (Ser. No.1) and another Shri Mukesh Sharma, AGT in the Office of GE, Jaipur (Ser. No.3) - was made for the reasons that they were due for superannuation and transfer respectively. Hence, the contention of the Applicant in the present O.A. that the Respondents had allotted Government accommodation to him without his having made an application for the same and that this was 13 OA No. 532/18, OA No.535/18, OA No.536/18, OA No.55/19 & OA No.57/19 done arbitrarily / out-of-turn to him with the intention to deprive him from HRA was also contested as incorrect.
9. Further, the Respondents had averred in respect of the claim for HRA of the Applicant in the present O.A. that as per the applicable O.M. dated 27.11.1965 of the Ministry of Finance / Department of Expenditure for Grant of Compensatory City Allowance and House Rent Allowance to the Central Government servants - vide Para-4(a)(i) inter alia thereof, it was provided that the grant of HRA shall be subject to the condition that to those Government servants who are eligible for Government accommodation, the allowances will be admissible only if they have applied for such accommodation in accordance with the prescribed procedure, if any, but have not been provided with it. In the context of the instant case, the Applicant in the present O.A. had applied for Type-IV residence vide his application dated 07.12.2017. Since he could not be allotted an entitled residence due to non-availability then at Jaipur, the station of his posting - a Non-Availability Certificate (NAC) dated 13.06.2018 was issued to him ; and HRA was granted to the Applicant in the present O.A. during the period that he could not be allotted accommodation. However, the pre-requisite condition for admissibility of 14 OA No. 532/18, OA No.535/18, OA No.536/18, OA No.55/19 & OA No.57/19 HRA as per the said O.M. dated 27.11.1965 - of not providing accommodation despite having applied for such accommodation in accordance with the prescribed procedure - would not be fulfilled in this case after the allotment of Government residential accommodation later vide the impugned Order dated 27.09.2018. Hence, HRA was statedly inadmissible to the Applicant in the present O.A. thereafter. In addition, the Respondents had further averred that although the Government accommodation allotment vide the impugned Order dated 27.09.2018, inter alia to the Applicant in the present O.A., was as per Rules, Policies and Guidelines for such allotment and as per his eligibility / entitlement for Type-IV accommodation - there was no compulsion on the individual to take over the Government accommodation and shift from his own house. Nonetheless, the Respondents had submitted that the refusal to not occupy the allotted accommodation would be subject to the consequences as per the provisions of the AOR (DFACDS) Rules, 1978 extant, inter alia non- consideration for allotment of Government accommodation for the next one year. Moreover, as per the relevant Office Memorandum dated 27.11.1965 of the Ministry of Finance, Department of Expenditure of the Government of India, those occupying or refusing Government accommodation 15 OA No. 532/18, OA No.535/18, OA No.536/18, OA No.55/19 & OA No.57/19 were not eligible for house rent allowance. Thus, the inadmissibility of HRA as a perquisite to the Applicant in the present O.A. from October-2018 and onward purportedly was in accordance with the aforesaid O.M. dated 27.11.1965 as well.
10. From the pleadings in the case by the parties and the arguments before us, we noted that the substantive facts in the case - that the Applicant in the present O.A. owned a house in at the station of his posting ; that he had submitted an application dated 07.12.2017 for the allotment of a Type-IV government accommodation of his eligibility, while also indicating that he was living in his own house and requesting to be issued NOC ; that the Respondents had issued a Non-Availability Certificate dated 13.06.2018 in his favour, while indicating that entitled Government accommodation was not available for allotment to him at that time ; that eventually the Quarter No.-475/04 (FF) at Nirman Vihar, Jaipur Cantt was allotted to him vide the impugned Order dated 27.09.2018 ; and that when the Applicant in the present O.A. had refused/denied to occupy the said allotted residence, the HRA had been stopped for him from October-2018 - have been agreed to and not been disputed by the parties. 16
OA No. 532/18, OA No.535/18, OA No.536/18, OA No.55/19 & OA No.57/19 Moreover, it had been uniformly agreed that the AOR (DFACDS) Rules, 1978 notified vide S.R.O. 308 were the relevant Rules to regulate the allotment of residences to the civilians in Defence Services, in respect of residences specifically constructed for them.
11. From the foregoing, it is noted that the substantive issue emerging in the present O.A. has mainly two aspects, the first regarding the allotment of official accommodation by Respondent No.3 to the Applicant in the present O.A. having made an application dated 07.12.2017 for the same while also indicating that he was living in his own house ; and the second relating to the consequent non-payment of HRA to the Applicant in the present O.A. from October- 2018. At the outset, it is underlined that these aspects have to be looked at in the context of the extant Rules, which had emerged to be the the AOR (DFACDS) Rules, 1978. A careful examination and analysis in respect of both the aspects of the substantive issue follows hereafter.
12. In respect of the first aspect of the aforesaid substantive issue pertaining to allotment of Government accommodation, the crux is whether Civilian MES employees, were mandatorily liable to be allotted a 17 OA No. 532/18, OA No.535/18, OA No.536/18, OA No.55/19 & OA No.57/19 Government residence constructed for such employees ; and if so, in what order of priority. On adverting to the relevant AOR (DFACDS) Rules, 1978 notified vide S.R.O. 308, it was seen that these had inter alia provided that :
" 5. Application for allotment - (1) All officers posted at a station where accommodation has been built specifically for civilians in Defence Services, who are eligible for the allotment of such accommodation, shall apply for allotment ; Provided that the Allotment Authority may by a general order exempt such officers or categories thereof as unlikely to be allotted accommodation during an allotment year from applying for such accommodation."
......
Thus, as per these Rules, it was mandatory for every officer to apply for allotment of residence wherever built/maintained for Civilians in Defence Services ; and these would also be applicable inter alia the Applicant in the present O.A. since such residences were built/maintained at Jaipur ; and no order for exemption as per the above Rule had been cited to have been made for him.
13. In proceeding further to examine/analyze the factual position in the case before us vis-à-vis the applicable Rules in this regard, it is noted at the outset that while the Applicant in the present O.A. had claimed inter alia that though such an allotment vide the impugned Order dated 27.09.2018 was made to him by the Respondents, but he 18 OA No. 532/18, OA No.535/18, OA No.536/18, OA No.55/19 & OA No.57/19 had never applied for the same. This averment is found to be factually incorrect, as the Application dated 07.12.2017 for the allotment of a Type-IV government accommodation of his eligibility, was available on records of this case. It is also found thereby that the Applicant in the present O.A. had also indicated in the Remarks column that he was living in his own house and had requested to be issued NOC, the content and purpose of which was not explicit. In the context thereof, the Respondents had issued a Non- Availability Certificate (NAC) dated 13.06.2018 in his favour. The said NAC had indicated that entitled Government accommodation was not available for allotment at that time - as that was necessary to allow him to be paid HRA till those circumstances prevailed. No other meaning can be read or presumed in the said NAC dated 13.06.2018, much less of any other exemption being granted in any way without that being stated expressly.
14. It is also apposite to refer to the provision of the applicable Rules relating to another disputed dimension in this regard that pertained to the seniority/priority that ought to be followed while making allotment of Government residences to civilian employees. On adverting to the 19 OA No. 532/18, OA No.535/18, OA No.536/18, OA No.55/19 & OA No.57/19 relevant AOR (DFACDS) Rules, 1978 notified vide S.R.O. 308, it was seen that these had inter alia provided that :
" 6. Allotment of residences and offers :- (1) Save as otherwise provided in these rules, a residence on falling vacant, will be allotted by the Allotting Authority preferably to an applicant desiring a change of accommodation in that type and if not required for that purpose, to an applicant without accommodation in that type having the earliest priority date for that type of residence ... ..."
The Applicant in the present O.A. had contended that the impugned actions of the Respondents were not as per the applicable Rules - in that the Seniority / Priority Lists were not maintained by the Respondents ; and that allotment was not made to two other employees, viz. one Shri Mukesh Sharma, AGT in the Office of GE, Jaipur (Ser. No.3) and another Shri Rajendra Prasad, TO in the Office of CE MES, HQ Jaipur Zone( Ser. No.1), who were in the same Grade but senior to him in seniority for allotment of Type- IV Government accommodation at that station. On the other hand, the Respondents had submitted a copy of the said List as part of their Reply. It was also shown thereby that the names of eligible employees were considered in seriatim for allotment against the three Type-IV accommodations that were vacant at that time. The decisions upon the names of the employees to whom these 20 OA No. 532/18, OA No.535/18, OA No.536/18, OA No.55/19 & OA No.57/19 got allotted were taken in light of the other relevant facts. Thus, for one Shri Rajender Prasad (Ser. No.1) - this was not allotted because he was due to proceed on superannuation on 30.11.2018 and allotment of Government accommodation was not to be entertained within six months of the date of superannuation as per the Rules. Another employee Shri Mukesh Sharma (Ser. No.3) was at the time under posting out from Jaipur, and hence he was also not allotted a Type-IV accommodation at Jaipur. After omitting the aforesaid two cases, the allotment of Type-IV accommodation was done to eligible employees to one Shri S.K. Jain, TO at CWE Jaipur (Ser. No.2), another Shri G.L. Kumawat, TO at HQ CE SWC (Ser. No.4) and Shri Ashok Kumar Sharma, TO at HQ CWE Jaipur Zone (Ser. No.5 and the Applicant in the present O.A.) as per their respective seniority and in consideration as per Rules / Policies / Guidelines therefore.
15. Hence, in light of the submissions of the parties through their pleadings and arguments, the AOR (DFACDS) Rules, 1978 notified vide S.R.O. 308 that are relevant in this regard and the facts and analysis foregoing, the contentions in the present O.A. - either that no Seniority / Priority List was maintained for allotment of residences to 21 OA No. 532/18, OA No.535/18, OA No.536/18, OA No.55/19 & OA No.57/19 Civilian MES employees at Jaipur ; or that the impugned Order dated 27.09.2018 had been made by the Respondents for allotment of such Type-IV residence without following the prescribed seniority/ priority - were found to be incorrect. The impugned Order dated 27.09.2018 by the Respondents for allotment of Type-IV residence to Civilian MES employees, inter alia the Applicant in the present O.A., was also found in light of the foregoing to be not arbitrary or illegal ; and was thus not liable to be interfered with by this Tribunal.
16. Further, in respect of the second substantive aspect of the issue in dispute through the present O.A., viz. the non- payment of HRA to the Applicant in the present O.A. from October-2018 - it is noted at the outset that such non- payment on part of the Respondents, was a consequent action, resulting from the position that he had been allotted / offered a Government residence of the Type that he was entitled for, but had refused it. The consequence of such refusal / non-acceptance as provided in Rule-7(1) of the extant AOR (DFACDS) Rules, 1978 reads as :
7. Non-acceptance of Allotment or Offer or failure to occupy the allotted residence after acceptance.
(1) If any officer fails to accept the allotment of a residence within five days or fails to take possession of that residence 22 OA No. 532/18, OA No.535/18, OA No.536/18, OA No.55/19 & OA No.57/19 after acceptance within eight days from the date of receipt of the letter of the allotment, he shall not be eligible for another allotment for a period of one year from the date of the allotment letter.
......
Thus, no condition regarding determining whether H.R.A. would be admissible or otherwise had been incorporated in this Rule, nor cited under any other, under the AOR (DFACDS) Rules, 1978 extant, which are specifically for allotment of government accommodation. However, the perusal of O.M. dated 27.11.1965 on the subject of Compensatory (City) Allowance and House Rent Allowance, that had been cited by the Respondents, showed the provisions for admissibility / inadmissibility of HRA under certain circumstances, inter alia akin to those in the case of the Applicant in the present O.A. The relevant provisions of its Para-4 under the heading "Those occupying or refusing Government accommodation not eligible for house rent allowance" had read as follows :
"4. The grant of house rent allowance shall be subject to the following conditions :-
(a)(i) To those Government servants who are eligible for Government accommodation, the allowances will be admissible only if they have applied for such accommodation in accordance with the prescribed procedure, if any, but have not been provided with it.
......
(b)(i) This allowance shall not be admissible to those who occupy accommodation provided by Government or those to whom 23 OA No. 532/18, OA No.535/18, OA No.536/18, OA No.55/19 & OA No.57/19 accommodation has been offered by the Government but who have refused it. In the latter case, the allowance will not be admissible for the period for which a Government servant is debarred from further allotment of Government accommodation under the allotment rules applicable to him.
(ii) The house rent allowance drawn by a Government servant, who accepts allotment of Government accommodation, shall be stopped from the date of occupation, or from the eighth day after the date of allotment of Government accommodation, whichever is earlier. In case of refusal of allotment of Government accommodation, house rent allowance shall cease to be admissible from the date of allotment of Government accommodation. In case of surrender of Government accommodation, the house rent allowance, if otherwise admissible, will be payable from the date of such surrender."
......
In the context of these provisions being applicable for determining the admissibility or otherwise of a Government servant to HRA, the following relevant aspects would emerge in the case of the Applicant in the present O.A.
17. Firstly, for admissibility of HRA and thus granting it to Government servants not allotted any residential accommodation, the provisions of the aforesaid Para-4(a)(i) would apply. Thereby it was required that the Government servant ought to have applied for the accommodation of the Type for which eligible as per prescribed procedure - this was done by the Applicant in the present O.A. vide his application dated 07.12.2017 ; and that accommodation 24 OA No. 532/18, OA No.535/18, OA No.536/18, OA No.55/19 & OA No.57/19 should also not have been provided despite such application
- this situation also prevailed for a period after the application dated 07.12.2017 by the Applicant in the present O.A., as had also been evidenced/formally confirmed by the Non-Availability Certificate (NAC) dated 13.06.2018 issued for him and had further continued till the offer/allotment of Government accommodation vide the impugned Order dated 27.09.2018. Hence, the HRA is found to have been rightly deemed admissible till the period up to 27.09.2018 to the Applicant in the present O.A. rightly as per the relevant provisions.
18. Secondly, once the situation of non-allotment of residential accommodation had ceased to exist upon an allotment being made - as was done for the Applicant in the present O.A. vide the impugned order dated 27.09.2018 - the provisions of the aforesaid Para-4(b)(ii) would apply. Thereby, it was provided that in case of refusal of allotment of Government accommodation, house rent allowance shall cease to be admissible from the date of allotment of Government accommodation, i.e. 27.09.2018 in the present case. Hence, the Respondents position that the payment of HRA be stopped for the Applicant in the present O.A. from the date of allotment of Government 25 OA No. 532/18, OA No.535/18, OA No.536/18, OA No.55/19 & OA No.57/19 residential accommodation of the entitled Type-IV to him, also prima facie appeared to be aligned to the provisions of the O.M. dated 27.11.1965.
19. Nonetheless, it had also emerged further from the pleadings of the case before us that the Applicant in the present O.A. had been expressly advised vide the Inter- Office Note dated 10.11.2017 to apply for allotment of Government married accommodation by 20.11.2017, failing which HRA would not be claimed from December-2017 onward. Upon being so advised, he had submitted vide letter dated 17.11.2017 that since he was living in his own house at Jaipur that was his home town, payment of HRA be continued as per his entitlement in light of Para-7(i) of the O.M. dated 27.11.1965. Further, it was cited as another unique constraint for the Applicant in the present O.A. that as he had an autistic son, he may not be offered Government accommodation as environment suitable to his needs had been created over years at his own house, in support of which the DOP&T O.M. dated 06.06.2014 and 17.11.2014 had been cited. In light thereof, the NAC dated 18.06.2018 had been issued for him by the Respondents, based upon which he had been allowed HRA till September- 2018. However, thereafter the impugned Order dated 26 OA No. 532/18, OA No.535/18, OA No.536/18, OA No.55/19 & OA No.57/19 27.09.2018 had been issued for allotment of Government accommodation inter alia to the Applicant in the present O.A. ; and it was sought to stop the payment of HRA to him from October-2018. The Applicant in the present O.A. had then made a representation dated 01.10.2018 to the Respondents citing his grievances in this regard and seeking redressal of those. A specific consideration and disposal of the same was not presented before us.
20. In light of it being the relevant provision for Government servants owning houses, the Para-7(i) of the aforesaid O.M. dated 27.11.1965 was required to be gone into. At the outset, we notice that the Respondents had presented an abridged version of the said O.M. redacting out the Para-7(i). This is nothing short of an attempt to obfuscate and keep this Tribunal in dark by not presenting parts of the same O.M. dated 27.11.1965 directly relevant in this case, which we find even more deplorable coming from official Respondents. Upon reference separately in light of the pleadings of the Applicant in the O.A., the relevant provisions of Para-7(i)of the said O.M. dated 27.11.1965 under the heading "Government servants owning houses" had been seen to read as follows : 27
OA No. 532/18, OA No.535/18, OA No.536/18, OA No.55/19 & OA No.57/19 "7. (i) A Government servant living in a house owned by him, his wife, children, father or mother shall also be eligible for house rent allowance under these orders. In such cases, the gross rental value of the house or, if he is not in occupation of the entire house, of the portion of the house actually occupied by him (as ascertained from its assessed value for municipal purposes or otherwise) without deduction of rebate of 10 per cent on account of repairs and including municipal and other taxes that are legally payable by the owner other than 'service taxes' levied separately and described as such, shall be taken as the rent paid by him for private accommodation for the purpose of these orders." ... ...
Thus, the provision of the Para-7(i) would also apply in the case of the Applicant in the present O.A., who was living in a house owned by him.
21. However, the moot point presently was then regarding the period of applicability of the provisions of Para-7(i) of the O.M. dated 27.11.1965. It is found at the outset that the provisions of the extant AOR (DFACDS) Rules, 1978 ; and of the O.M. dated 27.11.1965 - specifically at Para-4 and Para-7 thereof - have been independently stated, without according precedence inter se in any situation ; hence, these would apply simultaneously in general, without any one of these superseding another. Specifically, for the question at hand - viz., the period for which HRA is admissible to a Government servant - it is found that the extant AOR (DFACDS) Rules, 1978 require the Government 28 OA No. 532/18, OA No.535/18, OA No.536/18, OA No.55/19 & OA No.57/19 servants to mandatorily apply for Government accommodation at a station of posting where such accommodation was constructed/maintained by Government for civilian employees. Further, a Government servant having so applied but not provided the Government accommodation of his eligibility, would be allowed HRA as per the provisions of Para-4(a)(i) of the relevant O.M. dated 27.11.1965. Read together, Para-7(i) of the O.M. dated 27.11.1965 would imply that such an employee would be allowed HRA, even if he were staying in his own house till the Government accommodation was provided. However, para-4(b)(i) and (ii) would take effect once the Government accommodation was allotted to the Government servant ; and HRA would cease to be paid to him thereafter from the date of acceptance, or refusal, or surrender - as prescribed. No exceptions were cited in the Rules / O.M. related to HRA inter alia the Para-4(a) and Para-4(b) of the O.M. dated 27.11.1965 ; nor were any presented by either of the parties before us, Thus, as per the provisions of the O.M. dated 27.11.1965, HRA was admissible only to a Government servant who had applied but was not allotted Government accommodation as per his eligibility ; and was inadmissible to every Government 29 OA No. 532/18, OA No.535/18, OA No.536/18, OA No.55/19 & OA No.57/19 servant to whom accommodation of eligible Type had been offered but who had refused the offer/allotment.
22. The picture that had emerged in the present case was thus far - that the Applicant in the present O.A. was living in his own house at Jaipur ; that the relevant AOR (DFACDS) Rules, 1978 notified vide S.R.O. 308 provide mandatorily for application on part of every civilian employee posted in a station where accommodation had been constructed / maintained for civilian employees ; the provisions of Para-4(a)(i) of the relevant O.M. dated 27.11.1965 allowed for payment of HRA to employees who had applied for Government accommodation but had not been allotted the same ; that the Applicant in the present O.A. was expressly advised vide the Inter-Office Note dated 10.11.2017 to apply for allotment of Government married accommodation by 20.11.2017, failing which HRA would not be claimed from December-2017 onward ; that upon being so advised, he had initially submitted vide letter dated 17.11.2017 that since he was living in his own house, payment of HRA be continued as per his entitlement as per para-7(i) of the aforesaid O.M. dated 27.11.1965 ; that the Applicant in the present O.A. had then submitted an application dated 07.12.2017 in the understanding that 30 OA No. 532/18, OA No.535/18, OA No.536/18, OA No.55/19 & OA No.57/19 making such an application and non-allotment of accommodation was pre-requisite for HRA to be paid to him ; that the NAC dated 13.06.2018 was issued for him and based on that he had been allowed HRA till September- 2018 ; that the offer/allotment of Government accommodation was made inter alia to the Applicant in the present O.A. vide the impugned Order dated 27.09.2018 ; and that the payment of HRA was sought to be stopped thereafter. Further, no exception to the provisions pertaining to HRA to a Government servant vide the O.M. dated 27.11.1965 - in gist that HRA was admissible only to a Government servant who had applied for but was not allotted Government accommodation as per his eligibility ;and was inadmissible upon accommodation of eligible Type being offered / allotted and refused by him - were cited in the Rules / O.M. related to HRA nor presented by either of the parties before us. Hence, the HRA is found to have been rightly deemed admissible till the period up to 27.09.2018 to the Applicant in the present O.A. ; and also rightly denied thereafter as per the relevant provisions.
23. However, in the course of the arguments before us, the learned counsel for the Applicants had inter alia 31 OA No. 532/18, OA No.535/18, OA No.536/18, OA No.55/19 & OA No.57/19 referred to the interim Order dated 24.10.2018 of this Tribunal in the present O.A. No.532/2018, viz. :
"Heard.
Issue notices to the respondents returnable within fourteen days. List on 12.11.2018. the effect and operation of the impugned order dated 27th September 2018 (Annexure A/1) shall remain stayed qua the applicant till the next date of hearing. Process Dasti."
It was further brought to our notice that the Respondents in this case had filed at first the M.A. No.591/2019 and later the M.A. No.979/2019 - whereby they had mentioned that officers were then available to whom the accommodation could be allotted ; and that on account of pendency of this case, the department was facing hardship. The Respondents had thereby also informed that they had obtained an undertaking dated 16.05.2019 from the Applicant in the present O.A. intimating inter alia that "... Government Accommodation not required to me and OA N0.291/532/2018 is being filed by me in CAT Jaipur. Accordingly which is in progress." In light of the same, the Respondents had submitted specific undertaking to the effect that no HRA will be deducted from the applicant till decision of present OA and that no adverse effect will be there to the applicant till decision of present OA ; and prayed thereby that the stay be partly vacated to allow allotment of the said accommodation to needy 32 OA No. 532/18, OA No.535/18, OA No.536/18, OA No.55/19 & OA No.57/19 officers. Upon the same being considered, this Tribunal had passed the Order dated 07.11.2019 as hereafter :
" The respondents vide their Miscellaneous Application No.979/2019 have sought vacation of the stay granted in this case vide order dated 4.10.2018 so as to allow allotment of the accommodation in question. In this MA they have submitted an undertaking to the court which is as follows :
(a) No HRA will be deducted from the applicant till decision of present OA.
(b) No adverse effect will be there to the applicant till decision of present OA.
Looking to this undertaking, it is clarified that the interim relief given in favour of the applicant on 24.10.2018 will not debar the respondents from allotting the subject accommodation to other officers as per rules. Accordingly, MA No.979/2019 stands disposed of.
MA No.591/2019 is rendered infructuous and is disposed of accordingly.
OA No.532/2018List the matter for hearing on 23.01.2020. I.R. with clarification as above in MA No.979/2019 to continue till next date."
24. The learned counsel for the Applicant had further drawn attention to the Applicant's M.A. No.381/2022 dated 07.09.2022 whereby it was informed that the Applicant had retired on attaining the age of superannuation with effect from 30.09.2021. Thus, the Respondents - who had continued payment of HRA to the Applicant staying in his own house, even after the impugned offer/allotment Order dated 27.09.2018 in pursuance of their own undertaking vide M.A. No.979/2019 dated 07.11.2019 - were debarred 33 OA No. 532/18, OA No.535/18, OA No.536/18, OA No.55/19 & OA No.57/19 from recovery of the same under any circumstances after his retirement on 30.09.2021. In support, the authority of the Judgement and Order dated 21.03.2014 of the Hon'ble High Court of Gujarat at Ahmedabad in the C/LPA/329/2014 in the case of State of Gujarat & Ors. Vs Bharat R. Shah & Ors. was cited - whereby it was held that the discontinuance of HRA after period of about more than 20 years was illegal and, in no circumstances, recovery could have been ordered and further the action of non- payment of gratuity on account of recovery of HRA, etc. is unreasonable, arbitrary and discriminatory and violative of Article 14 of the Constitution of India. Further, the authority of the Judgement and Order dated 07.08.2023 of the Hon'ble High Court of Punjab & Haryana at Chandigarh in the CWP-11995-2017 in the case of Surinder Singh Khurana &Anr. Vs. Central University of Punjab &Ors. [ ]; and the CWP-11749-2017 in the case of Dr. Amandeep Singh &Ors. Vs. Central University of Punjab & Anr. was also cited - whereby it was held that the case of the petitioners with respect to recovery of excess payment of HRA is squarely covered by the judgement of Hon'ble Supreme Court read with Office Memorandum issued by Central Government, thus, respondents were directed not to make any recovery of alleged excess payment of HRA. 34
OA No. 532/18, OA No.535/18, OA No.536/18, OA No.55/19 & OA No.57/19 Both these citations of the authority of the Hon'ble High Courts were taken on record.
25. In the conspectus of the facts of the case based on the pleadings of the parties, the applicable Rules and O.M., the arguments by the learned counsels before us and as per the examination and analysis of the issues arising out of the impugned Order dated 27.09.2018 of the Respondents
- the substantive findings reached in the foregoing paras were that the impugned action of the Respondent for allotment of Government accommodation to the Applicant in the present O.A. was as per the AOR (DPACDS) Rules, 1978 ; and further that the inadmissibility of HRA after the date of the offer/allotment vide the impugned Order dated 27.09.2018 had also not suffered from any illegality, but was in accordance with the applicable O.M. dated 27.11.1965. However, it is also noted that the Respondents had continued payment of HRA even after the impugned offer/allotment Order dated 27.09.2018to the Applicant in the present O.A., who was staying in his own house, in pursuance of their own undertaking vide M.A. No.979/2019 dated 07.11.2019 submitted before this Tribunal. It is also found that the same had continued to be paid till the retirement w.e.f. 30.09.2021 of the Applicant in the present 35 OA No. 532/18, OA No.535/18, OA No.536/18, OA No.55/19 & OA No.57/19 O.A. on reaching the age of superannuation - which was the last possible date up to which the HRA could have been paid. The prayers of the Applicant as well as the contest on part of the Respondents through the present O.A. were thus rendered infructuous thereupon.
26. Moreover, the prayer at the stage of arguments before us, for directions from this Tribunal for estopping the Respondents from enforcing any recovery in future on account of excess payment of HRA were firstly found to be in excess of the relief prayed for through the present O.A.; and secondly, also found premature - as no such actions had been ordered or taken by the Respondents. Therefore, this relief / interference was not considered to be granted to the Applicant in the present O.A. However, we do observe that, the actions of the Respondents in this regard, if any, have to be in consonance with the law laid down/ Orders and Judgments of the Hon'ble Supreme Court as well as the guidelines issued in this regard by the Central Government, as applicable.
27. The OA, stands disposed of accordingly with the observations as herein above. The Orders for interim relief 36 OA No. 532/18, OA No.535/18, OA No.536/18, OA No.55/19 & OA No.57/19 stand merged and the M.A.s, if any, are also disposed of. No order as to costs.
28. All the other aforesaid Original Applications (OA No. 535/2018, OA No. 536/2018, OA No. 55/2019 & OA No. 57/2019) are also hereby disposed of in terms of the aforesaid directions and observations.
(Lok Ranjan) (Ranjana Shahi) Member (A) Member (J) !Vv