Karnataka High Court
The Union Of India vs Sri P V Valsan on 17 September, 2012
Bench: N.Kumar, H.S.Kempanna
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 17th DAY OF SEPTEMBER 2012
PRESENT
THE HON'BLE MR. JUSTICE N. KUMAR
AND
THE HON'BLE MR. JUSTICE H.S. KEMPANNA
WP Nos.42562/2011 & 10405-407/12(S-CAT)
C/w
W.P.Nos.39592/2011 & 4139-4144/12(S-CAT)
WP No.42562/2011 AND
W.P.Nos.10405-407/12:
BETWEEN:
1. THE UNION OF INDIA
REP BY ITS SECRETARY, MINISTRY
OF DEFENCE, DEPARTMENT OF DEFENCE
PRODUCTION AND SUPPLIES
NIRMAN BHAWAN, SOUTH BLOCK,
NEW DELHI-110 011
(IN SHORT REFERRED AS MOD)
2. THE DIRECTOR GENERAL OF QUALITY
ASSURANCE, G BLOCK, DHQ PO,
NEW DELHI-110 011
(IN SHORT REFERRED AS DGQA)
3. THE ADDITIONAL DIRECTORATE GENERAL OF
QUALITY ASSURANCE (N)
DQAN, WEST BLOCK V, R.K.PURAM
NEW DELHI-110 066
(IN SHORT REFERRED AS ADGQA (N)
2
4. THE CHIEF QUALITY ASSURANCE OFFICER
CHIEF QUALITY ASSURANCE
ESTABLISHMENT (WE)
JALAHALLI CAMP ROAD,
YESHWANTHPUR POST
BANGALORE-560022
(IN SHORT REFERRED AS CQAE (WE)
... PETITIONERS
(By Sri.B N SURESH BABU, ADVOCATE)
AND
1. SRI P V VALSAN
S/O C K G NAMBIAR
AGED ABOUT 57 YEARS,
GOPIKA, NO.10, 4TH BLOCK,
DODDABOMMASANDRA
VIDHYARANYAPURA,
BANGALORE-560097 ... RESPONDENT
(By Sri. VALSAN P V (PARTY IN PERSON))
THESE W.Ps ARE FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING
TO QUASH THE ORDERS PASSED BY THE HON'BLE
CENTRAL ADMINISTRATIVE TRIBUNAL AT
BANGALORE IN O.A.NO.209/2010 DATED 12TH DAY
OF AUGUST 2011 VIDE ANNEXURE A.
W.P.Nos.39592/2011 & 4139-4144/12(S-CAT)
BETWEEN:
1. THE UNION OF INDIA
REP BY ITS SECRETARY, MINISTRY OF
DEFENCE,DEPARTMENT OF DEFENCE
PRODUCTION AND SUPPLIES, NIRMAN BHAWAN,
SOUTH BLOCK
NEW DELHI-110011
3
2. THE DIRECTOOR GENERAL OF QUALITY
ASSURANCE, G BLOCK, DHQ, PO
NEW DELHI-110 011
3. THE ADDITIONAL DIRECTORATE OF GENERAL
OF QUALITY ASSURANCE(N)
DQAN, WEST BLOCK V, R.K. PURAM
NEW DELHI-110066
4. THE CHIEF QUALITY ASSURANCE OFFICER
CHIEF QUALITY ASSURANCE
ESTABLISHMENT (WE),
JALAHALLI CAMP ROAD, YESHWANTHPUR POST
BANGALORE-560 022 ... PETITIONERS
(By Sri. B N SURESH BABU, ADVOCATE)
AND
1. SRI A. VIJAYA KUMAR
S/O LATE A. AROKIA DASS,
AGED ABOUT 46 YRS,
WORKING AS SENIOR DRUAGHTSMAN
R/O NO.215, 2ND MAIN, KASTURI NAGAR
BANGALORE-560 043
2. SRI S SRINIVASAN
S/O LATE A V SATHYANARAYAN
AGED ABOUT 52 YRS, W/AS SENIOR
DRAUGHTSMAN, R/O NO.41, 14TH CROSS
KANAKA NAGAR, BANGALORE-32
3. SRI B JOHN BENNY
S/O A BENJAMIN, AGED ABOUT 51 YRS
W/AS SENIOR DRAUGHTSMAN
R/O CQAE(WE), JALAHALLI CAMP ROAD
YESHWANTHPUR POST, BANGALORE-22
4. SRI M RAJA KUMAR
S/O LATE T MURGESH, AGED ABOUT 54 YRS
4
W/AS SENIOR STORE SUPERINTENDENT
R/O NO.7, ASTALAKSHMI NILAYA
4TH CROSS, SHARADAMBANAGAR
BANGALORE-13.
5. SRI JANCY EAPEN
S/O K P EAPEN, AGED ABOUT 43 YRS
W/AS JUNIOR TECHNICAL OFFICER
R/O NO.293, 4TH CROSS
BRINDAVAN LAYOUT, SHETTIHALLI
BANGALORE-22
6. SMT. SARALA PARAMANANDHAN
W/O S PARAMANANDHAN
AGED ABOUT 57 YEARS
W/AS PERSONAL ASSISTANT
R/O NO.34, G.M PALYA, NEW THIPPASANDRA
PO, BANGALORE-75
7. MR. PRINCE ANDREWS
S/O M A ANDREWS, AGED ABOUT 38 YRS
W/AS TECHNICAL ASSISTANT
R/O NO.187, CQAL LAYOUT
SHAKARANAGAR, BANGALORE-92
... RESPONDENTS
(By Sri. N SHAMANNA, ADVOCATE FOR R1-7; SRI.S.
SRINIVASAN,PARTY-IN-PERSON-C/R2, SRI.B. JOHN
BENNY, PARTY-IN-PERSON-C/R3; SRI. M. RAJA
KUMAR, PARTY-IN-PERSON-C/R4; SRI.JANCY EAPEN,
PARTY-IN-PERSON-C/R5; SMT. SARALA
PARAMANANDHAN, PARTY-IN-PERSON-C/R6; SRI.
PRINCE ANDREWS, PARTY-IN-PERSON-C/R7)
-0-0-0-0-0-
THESE W.Ps ARE FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING
TO QUASH THE ORDERS PASSED BY THE HON'BLE
CENTRAL ADMINISTRATIVE TRIBUNAL AT
5
BANGALORE IN O.A.NO. 156/2010 DATED 22ND DAY
OF JULY 2011, ANNEXURE A.
These writ petitions coming on for preliminary
hearing this day N.Kumar, J., passed the following:-
ORDER
The Union of India has preferred these petitions challenging the orders passed by the Central Administrative Tribunal dated 22.7.2011 and 12.8.2011 respectively holding that the applicants before it are entitled to house rent allowance(for short "HRA") and HRA, if any, already recovered has to be refunded within a period of three months' from the date of their order.
2. For the purpose of convenience, the parties are referred as they are referred to in the applications.
3. The applicants are holders of different civilian posts under the Directorate General of Quality Assurance. They have been working in the Chief Quality Assurance Establishment(WE), Bangalore. They have been residing in the houses constructed by them 6 within the urban agglomeration of Bangalore on availing house building advances/loans from either Government or financial institutions. They are drawing HRA along with their salary even after coming into force of (i)Rules for Allotment of Residential Accommodation of Civilians Serving in the Directorate General of Quality Assurance Establishment at stations other than Delhi and New Delhi Area-1995, published as SRO IE, (ii) Rules for Allotment of Residential Accommodation of Civilians Serving in the Directorate General of Quality Assurance Establishment at stations other than Delhi and New Delhi area (Amendment) Rules, 1999, and (iii) Rules for Allotment of Residential Accommodation of Civilians Serving in the Directorate General of Quality Assurance Establishment at stations other than Delhi and New Delhi area (Amendment) Rules, 2004, published as SRO
31. By SRO 31, the Rules for Allotment of Residential Accommodation of Civilians Serving in the Directorate General of Quality Assurance Establishment at stations 7 other than Delhi and New Delhi Area-1995 were amended and new Rule 11.A was added. It came into force w.e.f. 7.3.2004. As these applicants after coming into force of the aforesaid rules applied for quarters and when the quarters were not available they were given what is called as "no accommodation" certificate. On that basis they were paid HRA. However, when the accommodations were available they were allotted quarters, but they refused to occupy. Then the Certificates issued were withdrawn and HRA was not paid to them. Therefore, they approached the Tribunal challenging the action of the respondents. The matter was contested. On consideration of the rival contentions the Tribunal was of the view that the applicants have been working in the first respondent's establishment and residing in their own houses within the urban agglomeration of Bangalore and they had been drawing HRA much before SRO 1E and SRO 31 came into force. Neither the applicants had applied for government residential accommodations nor had they been allotted 8 such accommodations by the respondents. Therefore, the Tribunal was of the view that the aforesaid Rules are not applicable to the applicants and therefore, the action of the respondents was found fault with and they were directed to pay HRA and if any amount is deducted, they were directed to refund the said amount. Aggrieved by the said order, the Union of India has preferred these writ petitions.
4. The learned counsel for the Union of India assailing the impugned order contends that in Bangalore there is surplus accommodation available. The Government of India has invested huge amounts for the purpose of construction of quarters to these employees. When once an employee who is allotted quarters refused to occupy the same, he ceases to have a right to claim HRA. Therefore, in the instant case as the applicants have refused to occupy the quarters allotted to them, they are not entitled to HRA. The Rules framed in 1986 was only prospective in nature. Therefore, in 2004 by SRO 31 Section 11.A was inserted 9 to make it retrospective. Therefore, he submits that the said Rules are applicable and the action of the respondents is legal and valid and the tribunal committed a serious error in setting aside the action of the respondents and in directing payment of HRA to the applicants.
5. Per contra, the learned counsel appearing for the respondents supported the impugned order of the Tribunal.
6. In the light of the aforesaid facts and rival contentions, the point that arises for consideration is:-
"Whether these applicants are
entitled to HRA in the facts and
circumstances of this case?"
7. It is not in dispute between the parties that on the day these applicants applied there were no accommodations available and therefore, they were not eligible for government accommodation. Subsequently, by SRO 1E Rules were framed by virtue of the powers 10 conferred by the proviso to Article 309 of the Constitution providing for residential accommodations to civilians serving in the department at stations other than Delhi and New Delhi area. Rule 5 deals with fundamental principles. Clause (a) of Rule 5 provides that the application for allotment of a residence should be made within a period of one month of taking up the appointment. Clause(b) of Rule 5 made it clear that the employee applying for allotment of residence must be holding a regular post in the Establishment in Station as opposed to the temporary duty attachment. Therefore, it is clear from the aforesaid provisions that the said Rules were not applicable to persons who are already employed in the establishment because they were employed years prior to the making of the Rules and the said rules made it obligatory that they should file an application within one month of taking up the appointment. Rule 11(a) provided that if any employee fails to accept the allotment of residence within five days or fails to take possession of that residence after 11 acceptance within eight days from the date of receipt of the letter of allotment he/she shall not be eligible for another allotment for a period of one year from the date of the allotment letter. As a consequence of refusal to accept such allotment subsequently they were not eligible for allotment. There was no provision for not paying HRA which they were paid prior to the date of allotment. Therefore, the said Rules were amended by SRO 31 which came into effect from 27.2.2004 by inserting Clause 11.A. Clause 11.A reads as under:-
"A. Those occupying or refusing Government Accommodation not eligible for house rent allowance. The grant of house rent allowance shall be subject to the following conditions:-
(1)To those civilians serving in
Directorate General of Quality
Assurance Establishment who are
eligible for Government accommodation, the allowances will be admissible only if they have applied for such accommodation in accordance with the 12 prescribed procedure but have not been provided with it, in places where due to availability of surplus Government accommodation, special orders are issued by the Directorate General of Quality Assurance HQ from time to time making it obligatory for employees concerned to obtain and furnish "no accommodation" certificate in respect of Government residential accommodation at their place of posting.
(2)Civilians serving in Directorate General of Quality Assurance Establishments posted in localities
where there is at present no residential accommodation in the General Pool owned or requisitioned by Directorate General of Quality Assurance for allotment of them, need not apply for Government Residential accommodation in order to become eligible for House Rent Allowance. But where Directorate General of quality Assurance quarters are available for the staff of specified categories the procedure for applying for accommodation will be regulated under 13 the rules for allotment of Residential Accommodation to Civilians serving in Directorate General of Quality Assurance Establishment at stations other than Delhi and New Delhi."
The aforesaid provisions made it clear that those occupying or refusing the government accommodations are not eligible for HRA. Further, it prescribed that the grant of HRA shall be subject to the following conditions. The opening words of Rule 11.A makes it clear that the said rules were made applicable to those occupying or refusing Government Accommodation. Similarly clause(1) provided that those civilians serving in Directorate General of Quality Assurance Establishment who are eligible for Government accommodation. The opening words "those civilians serving" made it clear that the said Rules were applicable to those who were in employment on the date the Rules came into force. Therefore, intention was to make the Rules retrospective, which was not there in their earlier Rules. However, before an employee is 14 denied HRA, the conditions stipulated in Clause(1) of Rule 11A has to be satisfied. The first condition is there should be surplus government accommodation. The second condition is by a special order the Directorate General of Quality Assurance HQ should make it obligatory for employees to obtain and furnish "no accommodation" certificate in respect of government residential accommodation at their place of posting. Then only they would be entitled to payment of HRA. Therefore, the intention is obvious. If there is surplus accommodation, the employees should occupy and they are not entitled to HRA. Even in case where there is surplus accommodation unless there is special order providing for issue of "no accommodation" certificate, they were not entitled to the benefit of HRA. The applicants have produced before us the information they have obtained under the RTI Act from the Government of India, Ministry of Defence, Directorate General of Quality Assurance Public Opinion Cell to their query that "Are there any orders issued from 15 Directorate General of Quality Assurance declaring the station of Bangalore as having surplus accommodation as on date?" the reply was "no" as per the record held in the section. Relying on the same it was contended that no special orders is issued by the Directorate General of Quality Assurance making it obligatory for employees concerned to obtain and furnish "no accommodation"
certificate in respect of Government residential accommodation at their place of posting and therefore, the applicants contend that in the absence of such Government order, the HRA cannot be denied to them.
8. From the aforesaid provision, it is clear that they have made a distinction between the place where there is surplus accommodation and where there is no surplus accommodation. In a case where there is no surplus Government accommodation, an employee who is eligible for Government accommodation has to apply for such accommodation in accordance with the prescribed procedure and if he is not provided accommodation, then he is eligible for HRA. 16
In case where there is surplus Government accommodation and on his application accommodation is not given to him, in the normal course he will be entitled to HRA. But in such cases if there is a Special order issued by the Directorate General of Quality Assurance Head Quarters making it obligatory for employees concerned to obtain and furnish "no accommodation" certificate in respect of Government residential accommodation at their place of posting, unless such a certificate is issued they will not be eligible for HRA. In Bangalore there is no surplus government accommodation. Therefore, the second portion of Clause (1) of Rule 11 is not applicable. Therefore what is applicable is first part of Clause 1 of Rule 11A. The applicants have to apply for accommodation and only when they are not allotted the accommodation, then they would be entitled to HRA.
9. In the instant case, they did make an application initially. They were not provided 17 accommodation. Therefore, they were paid HRA. Once the accommodations were available it has been offered to them. Then they refused to accept the accommodation. From the day they refused to accept the accommodation, they would not be entitled to HRA. The argument was without any application the accommodation is offered to them. That will not support the case of the applicants. To be eligible for HRA, they must apply. On their application, if the accommodation is not available, they are entitled to HRA. Even without application, if they are given accommodation certainly they are not eligible for HRA. As stated earlier, the Rules were not made retrospectively. Therefore, this SRO 31 was introduced making it retrospective.
10. It was also contended that there is nothing in the Rule to indicate that the applicants were eligible for accommodation. The said submission has no substance. Rule 7 deals with classification of residences. It provides that the employee shall be eligible for allotment of residence of the type shown in 18 the table. In the left column the type of residence is shown and in the right column the monthly emoluments and present basic is given. Subsequently, it is amended by SRO No.46 dated 7.10.10 substituting the word "basic pay" with "grade pay". It is not in dispute that the grade pay which is drawn by the petitioners is Rs.4,200/-. If that is so they are eligible for Type-III residences. When once they are eligible for Type-III of residence by virtue of the amended provisions, they have to make an application. Only if they are not offered government accommodation, they would be entitled to HRA.
11. The Apex Court in the case of Director, Central Plantation Crops Research Institute, Kesaragod and others .vs. M.Purushothaman and other [AIR 1994 SC 2541] was dealing with a some what similar provision has held as under:-
"5. It is clear from the aforesaid provisions that paragraphs (4)(a)(i) and
(ii) lay down the procedure for making 19 application for accommodation.
Paragraph(4) (b)(I) lays down the consequences on refusal to accept the accommodation when offered. There is no doubt that paragraphs 4(a)(i) and (ii) state than an application has to be made to secure accommodation.
However, that does not mean that Government or the organisation such as the appellant-organisation to which the said provisions apply cannot on their own offer accommodation to the employees. Hence, the reason given by the Tribunal that it is only if the employee applies for such accommodation and he refuses to accept the same when offered that he would be disentitled to the HRA, is not correct. It must be remembered in this connection that the Government or the organisation of the kind of the appellants spends huge public funds for constructing quarters for their employees both for the convenience of the management as well as of the employees. The investment thus made in constructing and maintaining the quarters will be a waste 20 if they are to lie unoccupied. The HRA is not a matter of right. It is in lieu of the accommodation not made available to the employees. This being the case, it follows that whenever the accommodation is offered the employees have either to accept it or to forfeit the HRA. The management cannot be saddled with double liability, viz., to construct and maintain the quarters as well as to pay the HRA. This is the rationale of the provisions of paragraph 4 of the said Government Office Memorandum."
In the light of what we have stated above, the Tribunal has ignored the statutory provisions. What appears to have weighed in the mind of the Tribunal is that these applicants had constructed their own houses after taking loan and they were residing there even before the coming into force of these Rules. The earlier Rule was only prospective in nature. But subsequently the said Rules were amended by introducing Rule 11A making it retrospective and also denying the benefit of HRA. 21 Therefore, in the light of the legal principles laid down by the Apex Court the action of the respondents cannot be found fault with. In that view of the matter the impugned order cannot be sustained.
12. Hence, we pass the following:-
ORDER The writ petitions are allowed. The impugned orders are hereby set aside.
The parties to bear their own costs.
Sd/-
JUDGE Sd/-
JUDGE *alb/-.