Gujarat High Court
Rajesh Kumar Jain vs State Of Gujarat & 2 on 9 February, 2017
Author: Sonia Gokani
Bench: Sonia Gokani
C/SCA/249/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 249 of 2017
[On note for speaking to minutes of order dated 25/01/2017 in C/SCA/249/2017 ]
With
SPECIAL CIVIL APPLICATION NO. 621 of 2017
TO
SPECIAL CIVIL APPLICATION NO. 624 of 2017
With
SPECIAL CIVIL APPLICATION NO. 626 of 2017
With
SPECIAL CIVIL APPLICATION NO. 628 of 2017
With
SPECIAL CIVIL APPLICATION NO. 630 of 2017
==========================================================
RAJESH KUMAR JAIN....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
==========================================================
Appearance:
MR HARDIK D MUCHHALA, ADVOCATE for the Petitioner(s) No. 1
MS ASMITA PATEL, ADVANCE COPY SERVED TO GP/PP for the Respondent(s) No. 1
==========================================================
CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 09/02/2017
COMMON ORAL ORDER
Following directions have been left out in the earlier order passed by this Court on 25.01.2017 inadvertently, which shall be INCORPORATED in the order and a fresh writ shall be issued after carrying out necessary corrections.
"The respondents are directed to calculate and pay the unpaid H.R.A. as well as C.L.A. and T.A. at the rate applicable according to the 5th/6th Pay Commission as made applicable in case of other employees within 12 weeks."
DISPOSED OF, accordingly.
Page 1 of 2HC-NIC Page 1 of 18 Created On Sat Feb 11 01:38:27 IST 2017 1 of 18 C/SCA/249/2017 ORDER (MS SONIA GOKANI, J.) UMESH Page 2 of 2 HC-NIC Page 2 of 18 Created On Sat Feb 11 01:38:27 IST 2017 2 of 18 C/SCA/249/2017 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 249 of 2017 [On note for speaking to minutes of order dated 18/01/2017 in C/SCA/249/2017 ] With SPECIAL CIVIL APPLICATION NO. 621 of 2017 TO SPECIAL CIVIL APPLICATION NO. 624 of 2017 With SPECIAL CIVIL APPLICATION NO. 626 of 2017 With SPECIAL CIVIL APPLICATION NO. 628 of 2017 With SPECIAL CIVIL APPLICATION NO. 630 of 2017 ========================================================== RAJESH KUMAR JAIN....Petitioner(s) Versus STATE OF GUJARAT & 2....Respondent(s) ========================================================== Appearance:
MR HARDIK D MUCHHALA, ADVOCATE for the Petitioner(s) No. 1 ADVANCE COPY SERVED TO GP/PP for the Respondent(s) No. 1 ========================================================== CORAM: HONOURABLE MS JUSTICE SONIA GOKANI Date : 25/01/2017 Order below Note for Speaking to Minutes By way of Speaking to Minutes, learned advocate appearing for the petitioners has prayed for correction in the order dated 18.1.2017 passed in Special Civil Application No. 249 of 2017 and allied matters.Page 1 of 16
HC-NIC Page 3 of 18 Created On Sat Feb 11 01:38:27 IST 2017
3 of 18 C/SCA/249/2017 ORDER Having considered the contents of the Speaking to Minutes and material on record, the order dated 18.1.2017 passed in Special Civil Application No. 249 of 2017 and allied matters be substituted as under :-
"1. Since, all these petitions involve common question of law and facts, they are heard together and being disposed of by this common order.
2. The facts of the case are drawn from the Special Civil Application No. 249 of 2017;
The petitioner, therein, joined the Shantilal Shah Engineering College, Bhavnagar, on 30.12.2015 in Civil Engineering Department. It is the grievance of the petitioner that pursuant to his joining the services, Respondent No.3 granted him 10% House Rent Allowance (for short, 'HRA') in utter disregard of the decision of this Court rendered in Letters Patent Appeal No. 616 of 2003 and the allied matters and the subsequent decisions. It is the say of the petitioner that he is entitled to get 20% HRA as well as proportionate Compulsory Local Allowance ('CLA', in brief) and Transport Allowance ('TA' for short). It is also urged by Page 2 of 16 HC-NIC Page 4 of 18 Created On Sat Feb 11 01:38:27 IST 2017 4 of 18 C/SCA/249/2017 ORDER the petitioners that vide Notification dated 3rd January, 2015 existing limit of Municipal Corporation of city of Bhavnagar has been widen and it has been included areas of Sidasar Gram Panchayat. He is, therefore, before this Court seeking the following reliefs;
"9.0 The petitioner, therefore, prays that this Hon'ble Court be pleased to;
(a) issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction may be issued directing the respondents, their agents and servants to make payment of HRA, CLA and T.A. To the petitioner at the same rate as is given to other similarly situated employees of Shantilal Shah Engineering College, Bhavnagar i.e. at the rate of 20% as admissible as per 6th Pay Commission in purusant to Judgment dated 11.12.2013 passed in LPA No. 616/2003 and allied matters as per Annexure A Colly and Notification dated 03.01.2015- Ann.I.
(b) issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction may be issued directing the respondents, their agents and servants to calculate and pay the arrears of unpaid HRA, CLA and T.A. at the rate of 20% from their respective Page 3 of 16 HC-NIC Page 5 of 18 Created On Sat Feb 11 01:38:27 IST 2017 5 of 18 C/SCA/249/2017 ORDER date of joining.
(c) Pending admission, final hearing and disposal of this petition be pleased to direct the respondent authorities to start payment of HRA, CLA and T.A. To the petitioner at the same rate i.e. 20% as applicable to the city of Bhavnagar in pursuance to Judgment dated 11.12.2013 passed in LPA No. 616/2003 and allied matters.
(d) to grant Ad-interim relief in terms of para 9(c).
(e) to allow this petition with costs.
(f) ..."
3. Here, it would be profitable to refer to the decision of this Court rendered in Letters Patent Appeal No. 616 of 2003 and the allied matters, wherein, this court observed and held as under in Paragraphs- 3 to 6.1;
"...
3. The question involved in these matters is that the appellants-original petitioners were serving in Shantilal Shah Engineering College which was initially started within the campus of Bhavnagar University, which is within Page 4 of 16 HC-NIC Page 6 of 18 Created On Sat Feb 11 01:38:27 IST 2017 6 of 18 C/SCA/249/2017 ORDER the Municipal Corporation limits of the city of Bhavnagar. Later on, for the reasons beyond the control of the appellants-original petitioners, the authorities decided to shift this college to a place known as 'Sidsar', which, incidentally happens to be situated outside the Municipal Corporation limits of city of Bhavnagar. Earlier, HRA was governed by GR dated 15.12.1975, wherein the provision was that even if an employee resides at a place situated within 8 kms. From the outer periphery of Municipal limits, the employee will be entitled to HRA which is paid to the employees who are residing within the Municipal limits of the city.
4. Learned AGP Mr.Rindani invited attention of the Court to GR dated 25.02.2000, which in fact is under challenge in these matters, by which the aforesaid provision about payment at par with the employees residing Page 5 of 16 HC-NIC Page 7 of 18 Created On Sat Feb 11 01:38:27 IST 2017 7 of 18 C/SCA/249/2017 ORDER within the Municipal Corporation limits of the city is given a go-bye. It is by virtue of GR dated 25.02.2000, the appellants-petitioners were to get the reduced HRA and that is why, the appellants-petitioners approached this Court by filing petitions and challenged legality and validity of that GR. Learned AGP vehemently submitted that this GR dated 25.02.2000 is applicable to the appellants-petitioners.
4.1 Learned Single Judge while considering legality and validity of GR dated 25.02.2000 observed that legality and validity of this GR was challenged earlier in petition filed by one Shri N.R.Parikh Vs. State of Gujarat. Decision rendered in in this case is reported in 2002 (2) GLH 657. Relying on that devision, the learned Single Judge refused to take a different view than the view taken by coordinate Bench.
Page 6 of 16HC-NIC Page 8 of 18 Created On Sat Feb 11 01:38:27 IST 2017 8 of 18 C/SCA/249/2017 ORDER
5. Learned Senior Advocate for the appellants emphatically submitted that GR dated 25.02.2000 is not valid inasmuch as, it does not lay down a just policy. He submitted that in fact, in view of this GR that there has to be congestion in the cities because in may cases, though accommodation is available outside Municipal limits of the city, an employee is compelled to reside within the Municipal limits to avail higher HRA. The resultant effect is an unnecessary insistence on the part of the Government employee to reside within the Municipal limits to get benefit of higher rate of HRA which is payable to the employees residing within the Municipal limits of the city.
5.1 Learned Senior Advocate for the appellants-petitioners submitted that in the case on hand, without deciding the question of legality and validity of GR dated 25.02.2000, the relief can be Page 7 of 16 HC-NIC Page 9 of 18 Created On Sat Feb 11 01:38:27 IST 2017 9 of 18 C/SCA/249/2017 ORDER granted to the appellants-petitioners in light of the peculiar facts of the case. He submitted that initially when this Shantilal Shah Engineering College was started, it was started within the campus of Bhavnagar University, which is situated within the Municipal limits of the city of Bhavnagar and the appellants- petitioners were getting HRA at a higher rate, that is the one at which the employees residing within the Municipal limits of the city. But at a subsequent stage, without there being any option to the petitioner, the college is shifted outside the Municipal limits of the city of Bhavnagar.
5.2 Learned Senior Advocate for the appellants submitted that there are two distinguishable features in the case on hand. These features are, (1) Sidsar is a place which does not have independent residential locality and therefore, even if employees wish to Page 8 of 16 HC-NIC Page 10 of 18 Created On Sat Feb 11 01:38:27 IST 2017 10 of 18 C/SCA/249/2017 ORDER stay at Sidsar, it is not possible to find accommodation there and (2) Shantilal Shah Engineering College which is now shifted to Sidrar in a new campus, does not provide any residential accommodation to the employees. That being so, the employees-appellants-petitioners and other similarly situated persons are under compulsion to reside within the Municipal limits of the city of Bhavnagar.
5.3 Learned Senior Advocate for the appellants-petitioners invited attention of the Court to another glaring fact and that is, when a transfer was made from Government Engineering College to the present institute, i.e. Shantilal Shah Engineering College, the transferred employee was not given any 'Transfer Allowance' on the ground that it is a local transfer. Learned Senior Advocate for the appellants-petitioners submitted that Page 9 of 16 HC-NIC Page 11 of 18 Created On Sat Feb 11 01:38:27 IST 2017 11 of 18 C/SCA/249/2017 ORDER this is nothing but blowing hot and cold in the same breath.
5.4 Learned Senior Advocate for the appellants-petitioners submitted that as was required by this Court on the last hearing, a certified map from Bhavnagar Area Development Authority is produced for perusal. As per that map, 'the shortest straight line distance' between outer periphery of Municipal limits of city of Bhavnagar and the place where the institute (Shantilal Shah Engineering College) is situated is only 2 kms. and the shortest distance by road is only 4 kms.
5.5 Learned Senior Advocate for the appellants-petitioners submitted that taking into consideration the aforesaid facts, it is his earnest prayer that GR dated 25.02.2000 should be declared to be unjust, illegal and inoperative. In the alternative, he submitted that atleast, the present appellants- petitioners should be held entitled to Page 10 of 16 HC-NIC Page 12 of 18 Created On Sat Feb 11 01:38:27 IST 2017 12 of 18 C/SCA/249/2017 ORDER receive HRA at par with the employees who are residing within the Municipal limits of the city of Bhavnagar.
6. Taking into consideration the wider repercussions of quashing of GR dated 25.02.2000, this Court restrains itself from pronouncing on the legality and validity of GR dated 25.02.2000. However, it is held that the said GR will not be applicable to the case of the appellants-petitioners for the reasons that, (1) the appellants- petitioners have not shifted their place of work of their own choice, (2) the institute (Shantilal Shah Engineering College) was initially started in the campus of Bhavnagar University which is situated within the Municipal limits of the city of Bhavnagar, (3) at Sidsar, where the college (Shantilal Shah Engineering College) is shifted, there is no residential locality and the college does not provide for Page 11 of 16 HC-NIC Page 13 of 18 Created On Sat Feb 11 01:38:27 IST 2017 13 of 18 C/SCA/249/2017 ORDER residential accommodation to its employees and (4) the authorities themselves are treating transfer from Government Engineering College to Shantilal Shah Engineering College as a local transfer.
6.1 This Court is of the opinion that GR dated 25.02.2000 cannot be made applicable to the present appellants- petitioners and they should continue to get HRA at the rate at par with the employees who are residing in the Municipal limits of the city of Bhavnagar."
4. It appears that being aggrieved by the aforesaid order, the State approached the Apex Court by way of Special Leave to Appeal No. 7844 to 7885 of 2015, wherein, the Apex Court, though, condoned the delay, refused to interfere with the impugned order passed by this Court in Letters Patent Appeal No. 616 of 2003 and the allied matters, and thereby, dismissed all the special leave petitions.
5. This Court in Special Civil Application Page 12 of 16 HC-NIC Page 14 of 18 Created On Sat Feb 11 01:38:27 IST 2017 14 of 18 C/SCA/249/2017 ORDER 10606 of 2015 and allied matters[Coram:Mr.J.B.Pardiwala,J] that the issues is squarely covered by the earlier decision and that thus :
"4. It also appears that following the decision of the Division Bench referred to above, a learned Single Judge of this Court in a bunch of petitions being Special Civil Application No.232 of 2015 and allied matters decided on 08.04.2015 observed as under:
[7] Having heard learned advocates for both the sides and having carefully examined the material on record, it can be noticed that the petitioner is claiming the benefit of HRA and other benefits as the other similar situated employees of the Shantilal Shah Engineering College, had already moved this Court and in the decision of the Division Bench of this Court rendered in the case of J. N. Patel, President of Sankalan Samiti in Letters Patent Appeal No.616 of 2003, the Court granted benefits to the employees, the Government Resolution dated 25.2.2000 which is according to the Court could not have been applicable to the case of the petitioners, as they continue to get HRA at par with those, who are residing in the Municipal limit of the city of Bhavnagar. The Division Bench of this Court has observed in paragraph Nos.6, 6.1 and 7 as under:-
6. Taking into consideration the wider repercussions of quashing Page 13 of 16 HC-NIC Page 15 of 18 Created On Sat Feb 11 01:38:27 IST 2017
15 of 18 C/SCA/249/2017 ORDER of GR dated 25.02.2000, this Court restrains itself from pronouncing on the legality and validity of GR dated 25.02.2000. However, it is held that the said GR will not be applicable to the case of the appellants-petitioners for the reasons that, (1) the appellants-petitioners have not shifted their place of work of their own choice, (2) the institute (Shantilal Shah Engineering College) was initially started in the campus of Bhavnagar University which is situated within the Municipal limits of the city of Bhavnagar, (3) at Sidsar, where the college (Shantilal Shah Engineering College) is shifted, there is no residential locality and the college does not provide for residential accommodation to its employees and (4) the authorities themselves are treating transfer from Government Engineering College to Shantilal Shah Engineering College as a local transfer.
2.This Court is of the opinion that GR dated 25.02.2000 cannot be made applicable to the present appellants-
petitioners and they should continue to get HRA at the rate at par with the employees who are residing in the Municipal limits of the city of Bhavnagar.
7. In the result, the LPA and the SCAs are allowed. Rule is made absolute. No order as Page 14 of 16 HC-NIC Page 16 of 18 Created On Sat Feb 11 01:38:27 IST 2017 16 of 18 C/SCA/249/2017 ORDER to costs.
[8] As such decision is, till date not challenged, it goes without saying that the petitions being identically situated, should be availed benefits of such decision, therefore, all these petitions are allowed. The respondents authorities are directed to apply, in the case of the petitioners, the decision of LPA Bench granting them HRA at par with those, who are residing within the Municipal limit of Bhavnagar. The respondents are also directed to calculate and pay the unpaid HRA as well as CLA at the rate applicable as per 5th / 6th Pay Commission as made applicable in case of other employees within 12 weeks of this order. These petitions stand disposed of accordingly. Rule is made absolute. Direct service is permitted.
5. It is also brought to my notice that the judgment delivered by the Division Bench in the Letters Patent Appeal has been confirmed by the Supreme Court. The order has been annexed at Page 80, Annexure:I.
6. In the aforesaid view of the matter, these petitions are allowed. It is declared that the petitioners herein are entitled to HRA, CLA, NPA at the rate of 20% as admissible according to the 6th Pay Commission. Rule is made absolute to the aforesaid extent. Direct service is permitted."
6. In wake of the foregoing decision and Page 15 of 16 HC-NIC Page 17 of 18 Created On Sat Feb 11 01:38:27 IST 2017 17 of 18 C/SCA/249/2017 ORDER discussion above, these petitions are allowed. It is declared that the petitioners herein are entitled to HRA, CLA and TA at the rate admissible in the 5th/6th Pay Commission as made applicable in case of other employees within 12 weeks of the receipt of copy of this order."
Let the fresh copy be placed on record on each of the matters.
Note for Speaking to Minutes stands allowed to the aforesaid extent.
(MS SONIA GOKANI, J.) BINA Page 16 of 16 HC-NIC Page 18 of 18 Created On Sat Feb 11 01:38:27 IST 2017 18 of 18