Gujarat High Court
Rajesh Kumar Jain vs State Of Gujarat & 2 on 25 January, 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 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 1 of 32 Created On Tue Jan 31 00:34:08 IST 2017
1 of 32
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 2 of 32 Created On Tue Jan 31 00:34:08 IST 2017
2 of 32
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 3 of 32 Created On Tue Jan 31 00:34:08 IST 2017
3 of 32
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 4 of 32 Created On Tue Jan 31 00:34:08 IST 2017
4 of 32
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 5 of 32 Created On Tue Jan 31 00:34:08 IST 2017
5 of 32
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 16
HC-NIC Page 6 of 32 Created On Tue Jan 31 00:34:08 IST 2017
6 of 32
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 7 of 32 Created On Tue Jan 31 00:34:08 IST 2017
7 of 32
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 8 of 32 Created On Tue Jan 31 00:34:08 IST 2017
8 of 32
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 9 of 32 Created On Tue Jan 31 00:34:08 IST 2017
9 of 32
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 10 of 32 Created On Tue Jan 31 00:34:08 IST 2017
10 of 32
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 11 of 32 Created On Tue Jan 31 00:34:08 IST 2017
11 of 32
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 12 of 32 Created On Tue Jan 31 00:34:08 IST 2017
12 of 32
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 13 of 32 Created On Tue Jan 31 00:34:08 IST 2017
13 of 32
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 14 of 32 Created On Tue Jan 31 00:34:08 IST 2017
14 of 32
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 15 of 32 Created On Tue Jan 31 00:34:08 IST 2017
15 of 32
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 16 of 32 Created On Tue Jan 31 00:34:08 IST 2017
16 of 32
C/SCA/249/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 249 of 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 in (SCA Nos. 249, 621 TO 624 and 626 of 2017)
ADVANCE COPY SERVED TO GP/PP for the Respondent(s) No. 1
MR TARANJIT SINGH WADHWA, In (SCA Nos. 628 and 630 of 2017)
ADVANCE COPY SERVED TO GP/PP for the Respondent(s) No. 1
==========================================================
CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 18/01/2017
COMMON ORAL ORDER
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 Page 1 of 16 HC-NIC Page 17 of 32 Created On Tue Jan 31 00:34:08 IST 2017 17 of 32 C/SCA/249/2017 ORDER 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). 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 Page 2 of 16 HC-NIC Page 18 of 32 Created On Tue Jan 31 00:34:08 IST 2017 18 of 32 C/SCA/249/2017 ORDER 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 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 Page 3 of 16 HC-NIC Page 19 of 32 Created On Tue Jan 31 00:34:08 IST 2017 19 of 32 C/SCA/249/2017 ORDER 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 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 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-
Page 4 of 16HC-NIC Page 20 of 32 Created On Tue Jan 31 00:34:08 IST 2017 20 of 32 C/SCA/249/2017 ORDER 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.
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 granted to the appellants-petitioners in light of the peculiar facts of the case. He submitted that initially when this Page 5 of 16 HC-NIC Page 21 of 32 Created On Tue Jan 31 00:34:08 IST 2017 21 of 32 C/SCA/249/2017 ORDER 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 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 Page 6 of 16 HC-NIC Page 22 of 32 Created On Tue Jan 31 00:34:08 IST 2017 22 of 32 C/SCA/249/2017 ORDER 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 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 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 Page 7 of 16 HC-NIC Page 23 of 32 Created On Tue Jan 31 00:34:08 IST 2017 23 of 32 C/SCA/249/2017 ORDER 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.
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 with 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 Page 8 of 16 HC-NIC Page 24 of 32 Created On Tue Jan 31 00:34:08 IST 2017 24 of 32 C/SCA/249/2017 ORDER matters, and thereby, dismissed all the special leave petitions.
5. Further, this Court (Coram: Hon'ble Mr. Justice J.B. Pardiwala) in the case of 'NITINKUMAR C. PATEL AND OTHERS VS. STATE OF GUJARAT' vide its order dated 05.07.2016 passed in Special Civil Application No. 1791 of 2007 and the allied matters also decided the similar issue. In the present petition, the petitioner has made the identical prayers. Paragraphs-31 to 39, thereof, reads thus:
"31. The petitioners, in the present proceedings, are seeking directions for payment of the H.R.A. And C.L.A. As per the circular of the State Government. In this regard, the case of the State Government, according to the existing policy, is that the cities are classified under the urban agglomeration, by which, a government, employee would be entitled for the H.R.A. And C.L.A. In this regard, those cities not falling under the classified urban agglomeration would not get any benefit of the H.R.A. and C.L.A. It is submitted that the cities, which are not falling under the radius of the eight kilometers, would not be qualified in the urban agglomeration.Page 9 of 16
HC-NIC Page 25 of 32 Created On Tue Jan 31 00:34:08 IST 2017 25 of 32 C/SCA/249/2017 ORDER
32. On behalf of the State Government, it is submitted that the cities are classified into the different categories and based on the classification of cities under the different categories, the payment of the H.R.A. And C.L.A. Would be decided. Therefore is no provision in the policy of the State Government for making up and down and that the writ applicants are required to stay at the place of occupation.
33. On behalf of the State Government, it is submitted that a huge burden to the public exchequer would follow once the payments of H.R.A. And C.L.A. Are increased. Even though the writ applicants have produced undertakings on record, it would be difficult for the respondents - State to decide the entitlement of each of the Teachers as many have retired.
34. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the writ applicants are entitled to the reliefs prayed for in these writ applications.
35. In the course of the hearing of the matters, it was suggested on behalf of the State Government that the entire issue may be asked to be looked into by a High Power Committee that the State Government Page 10 of 16 HC-NIC Page 26 of 32 Created On Tue Jan 31 00:34:08 IST 2017 26 of 32 C/SCA/249/2017 ORDER may constitute. All the learned counsel appearing for the writ applicants agreed to this and submitted that six or seven persons amongst the writ applicants shall appear before the committee for the purpose of submissions and they will also file written representation in this regard with the necessary materials. I am also of the opinion that the State Government will have to reconsider the entire issue a fresh, more particularly, in the wake of the recent developments, and for that purpose, the decision of the State Government, to constitute a High Power Committee, appears to be quite just and proper. I could have adjudicated the controversy on merits without referring the issue for being considered by a High Power Committee, but as the State Government itself wants to have a relook or reconsider the issue in the wake of subsequent developments, then I should permit the State Government to adopt the course of action they have proposed.
36. It is understood that the State Government will constitute a committee consisting of the following members:
(i) Chief Secretary of the State.
(ii) Principal Secretary - General Administration Department
(iii) Principal Secretary - Education Department
(iv) Principal Secretary - Finance.
(v) An Educationist familiar with Page 11 of 16 HC-NIC Page 27 of 32 Created On Tue Jan 31 00:34:08 IST 2017 27 of 32 C/SCA/249/2017 ORDER the subject that the State may choose.
37. The list of representatives, who would be appearing before the committee, is as under:
Sr. Name of Representatives No. appearing before the Committee on behalf of the writ applicants 1 Narendra Gohel President, Ahmedabad District P.T.F. (Primary Teachers Federation) Bareja Primary School, Daskroi.
2 Ashvinbhai R Patel Teacher's Representative Cluster Research Centre (CRC) Coordinator CRC Dhamatran Taluka, Daskroi.
3 Hareshbhai G. Patel
Principal, Higher
Secondary
Sharda Shikshan Tirth
High School, Paldi,
Kankaj, Taluka Daskroi,
Member of Principal
Federation
4 Jagjivanbhai Patel
Secretary,
Ahmedabad District
Primary Teachers'
Federation
Garodiya Primary
School,
Page 12 of 16
HC-NIC Page 28 of 32 Created On Tue Jan 31 00:34:08 IST 2017
28 of 32
C/SCA/249/2017 ORDER
Sanand, Ahmedabad.
5 Karansinh Bihola
Head Clerk, Shrimati
Manekba Krushi
Vidhyalaya,
Adalaj, Dist:
Gandhinagar
6 Jayendrabhai Bhatt
Clerk, Sarvajanik
Vidhyalaya,
Kanbha, Taluka :
Daskroi, Ahmedabad
38. In view of the above, I pass the following order:
(I) The State Government will constitute a committee, as noted above, at the earliest, and the committee shall make all possible endevours to see that an appropriate decision is taken within a period of six months from the date of the constitution of the committee.
(II) The representatives of the writ applicants shall appear before the committee and make their submissions.
(III) The committee shall hear those representatives on behalf of the writ applicants.
(IV) It shall be open for the representatives to file their written submissions with the necessary materials in that regard.Page 13 of 16
HC-NIC Page 29 of 32 Created On Tue Jan 31 00:34:08 IST 2017 29 of 32 C/SCA/249/2017 ORDER (V) The adinterim relief, which is operating in favour of each of the writ applicants, shall continue till an appropriate decision is taken by the committee, and the report is filed before the State Government. The adinterim relief shall also continue thereafter i.e. after the report of the committee for a further period of two months.
(VI) The undertakings given earlier by the writ applicants shall continue to operate till the decision is taken by the committee.
(VII) The committee shall give detailed reasons in support of its conclusion.
39. With the above observation and directions, all these writ applications are disposed of in the above terms. It is clarified that if ultimately the writ applicants are dissatisfied, in any manner, with the decision of the State Government, which may be taken, on the basis of the report of the committee, then it shall be open for the writ applicants to once again avail of an appropriate legal remedy before the appropriate forum in accordance with law. I clarify that I have otherwise not gone into the merit of the matter. "
5. All the relevant observations made by Page 14 of 16 HC-NIC Page 30 of 32 Created On Tue Jan 31 00:34:08 IST 2017 30 of 32 C/SCA/249/2017 ORDER this Court in Letters Patent Appeal No. 616 of 2003 and the allied matters and confirmed by the Apex Court and in Special Civil Application No. 1791 of 2007 and the allied matters with respect to HRA and CLA deserves to be applied in case of the present petitioners, who are also required to be granted the same reliefs along the line of the aforesaid decisions.
6. Accordingly, all these petitions are ALLOWED. The final rights of the petitioner shall be GOVERNED by the decision of this Court in SCA 1791 of 2007 and the allied matters. The petitioner shall be paid HRA at the rate of 20% and CLA, as per their basic salary, as per the Government Resolution. The petitioners shall file an undertaking that in the event they loses, they shall fully refund the amount with the interest at the rate of nine per cent per annum. If, the petitioners are not satisfied with the decision of the Government, it shall be OPEN to them to avail appropriate legal remedy. This Court has not gone into the merits of the matter and the same shall be looked into by the Committee, which has been constituted to hear and decide the representations made by and or behalf of the petitioners in SCA 1791 of 2007 and the allied matters. Direct service is permitted.Page 15 of 16
HC-NIC Page 31 of 32 Created On Tue Jan 31 00:34:08 IST 2017 31 of 32 C/SCA/249/2017 ORDER (MS SONIA GOKANI, J.) UMESH Page 16 of 16 HC-NIC Page 32 of 32 Created On Tue Jan 31 00:34:08 IST 2017 32 of 32