Central Administrative Tribunal - Cuttack
Bhabagrahi Sanibigraha vs Kendriya Vidyalaya Sanghthan on 20 December, 2023
1 OA No. 260/00265/2020
CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH
Original Application No. 260/00265 of 2020
Reserved on: 11.12.2023 Pronounced on: 20.12.2023
CORAM:
Hon'ble Mr. Pramod Kumar Das, Member (Admn.)
Bhabagrahi Sanibigraha, aged about 53 years, S/o- Late
Biswanath Sanibigraha, AT-Ohada Sasan, PO- Achyutapur,
Via- Turigadia, Dist- Balasore, Presently working as PGT
(Biology), Kendriya Vidyalaya No-I, Balasore, IG Marg, Proof
Colony, Balasore, Odisha 756001.
......Applicant
For the Applicant: Mr. D.P.Dhalsamant, Counsel
VERSUS
1. Commissioner, Kendriya Vidyalaya Sangathan, 18,
Institutional Area, Saheed Jeet Singh Marg, New Delhi,
110016.
2. Deputy Commissioner, Kendriya Vidyalaya Sangathar
Regional office at Pragati Vihar Colony, Mancheswar,
Bhubaneswar, Dist- Khurda, 751017.
3. Principal, Kendriya Vidyalaya No. 1, Balasore, Proof Colony,
Balasore, Odisha 756001.
4. Garrison Engineer, Military Engineer Service, Chandipur,
Balasore, Odisha-756025.
......Respondents
For the respondents : Mr. GR.Verma, Counsel
Mr. H.K.Tripathy, Counsel
2 OA No. 260/00265/2020
O R D E R
Pramod Kumar Das, Member(A):
The applicant working as PGT (Biology) KV No.1, Balasore, has filed this OA on 08.09.2020 assailing/challenging and seeking to quash the order No. 150029.1141.KV No-1 BLS 2019-20-573 dated 26.10.2019 (A/2), to direct the respondent to grant HRA from the month of December, 2019 and to refund the License Fees and Electricity/Water Charges already recovered from his salary.
1.1 Ld. Counsel for the applicant in support of the relief has laid emphasis on the points taken by him in the OA and rejoinder by stating that on 28.02.2019 the applicant joined at KV-I. Balasore. On 03.10.2019, notice was issued vide Annexure-A/1 requesting the staffs to apply within two days who are interested to exchange or reside in the staff quarter No.191/1-Type-III, which was vacated by Sri S.K. Pandey, PGT (Hindi) on allotment of another quarter for which no application was called. Even through the applicant had not applied for, he was allotted the said quarter No.191/1 vide letter dated 26.10.2019 (A//2) with the condition in para-4 of the allotment order that "Licence fee shall be payable from the date of taking possession of the quarter. 3 OA No. 260/00265/2020 The allottee shall accept the allotment and take the possession of the residence within 08 days from the date of receipt of this letter of allotment, failing which, the allotment shall be treated as cancelled and he/she shall not be eligible for another allotment for a period of one year from the date of this letter". On 07.11.2019 (A/3), applicant represented to Respondent No.2 stating that the quarter is not in a habitable condition and needs to be repaired thoroughly and the allotment order be withdrawn or put on hold. But, from December, 2019 onwards His HRA was withdrawn and from January, 2020, Licence Fees, Electric Charges and Water Charges were deducted from his salary. On 14.01.2020, he again represented to Respondent No.2 for cancellation of allotment order since quarter is in a dilapidated condition. On 20.01.2020 (A/5), applicant was directed by the Respondent No.3 to represent for cancellation of quarter to be examined by the allotment committee. On 27.01.2020, applicant represented to Respondent No.3 for cancellation of allotment and refund of HRA with licence fees. Having received no reply, he filed this OA with the aforesaid reliefs.
4 OA No. 260/00265/20201.2 While the OA was pending, vide order dated 16.07.2020 (A/7), which has been brought to the notice of this Tribunal vide MA No. 397/2020, applicant was intimated that the quarter allotment order cannot be cancelled however, as per quarter allotment rules HRA will be deducted till someone from priority list will occupy the quarter. The quarter allotment committee will allot quarter to the person just below your seniority and in case of occupancy, his HRA will be released from that period and the License Fees and Electric Charges will be regulated as per KVS norms.
1.3 This Tribunal vide order dated 17.07.2020 granted liberty to the respondents to cancel the said quarter since the applicant has not occupied the same till date with further direction that no further recovery will be undertaken towards license fees and other dues till the next date. One Sri Sudhir Kumar Sahu applied for the quarter, in question, on 25.01.2021, which has been allotted to him on 20.10.2021. In the meantime, on 17.10.2021, the applicant was transferred to ARC Charbatia and he was relieved on 27.10.2021. It is submitted by Ld. Counsel for the applicant that the applicant is entitled for HRA from the month of December- 2019 till October-2021 and is entitled to get refund 5 OA No. 260/00265/2020 of Licence Fees and Electric/Water Charge, which have been recovered from the salary of the applicant.
1.4 The applicant has mentioned that since the quarter in question required special repairing and maintenance, Respondents No.3 vide its letter dated 16.05.2019 (A/8 to the rejoinder), i.e. prior to notice for allotment of quarter, had requested Respondent no.4 to provide estimation. Further, as per Education Code Article 150(3)(II) the Special Repairs means "Special Repairs are undertaken to strengthen or replaces the existing damage parts of the building and services which got deteriorated on ageing of the building and due to regular wear and tear by usage etc. it is necessary to prevent the structure and the services for deteriorations and restore them back to their original condition to the extent possible".
2. Ld. Counsel for the respondents opposed the prayer of the applicant by putting emphasis on the stand taken in the counter to the effect that the applicant approached this Tribunal without availing the avenues available to him by way of making any representation/appeal, if he had any grievance against the decision taken by the authority 6 OA No. 260/00265/2020 concerned. Hence, this OA is liable to be dismissed by application of the provision under Section 20 of the AT Act, 1985.
2.1 The allotment of the residential qrs. is governed by the rules know as KVS Allotment of Residence Rules 1998 (R/1) and as per these Rules/guidelines, the Principal is the Allotment Authority as per Rule- 3.3(iii) and will allot the quarters as per recommendation of Quarter Allotment Committee under para-10 of KVS (R) 1998. One Sri S.K. Pandey (PGT Hindi) was residing in the quarters No.191/1-Type-III, Balasore even after its repair. On acceptance of his request, he was allotted another quarter. Thereafter notice dtd.03.10.2019 was issued inviting application from amongst the eligible staff for allotment of the said quarters but no application was received. Therefore, it was decided to allot the said quarter as per the priority list. Since the staff, as per the priority list refused to take the quarter, the said quarter was allotted to the applicant was on 26.10.2019, being the senior most teacher having no own residence at Balasore as per the approval of the Quarter Allotment Committee in terms of Rules. Since, he refused to accept the said quarters, he was not paid HRA. The decision taken in this respect by the respondents was in accordance with law laid down by the 7 OA No. 260/00265/2020 Hon'ble Apex Court in the case of Director, C.P. Crops. Research Institute-vrs.-M. Purusottam, AIR 1994 SC 2541, of the Hon'ble High Court of Madras in the case of Principal, Kendriya Vidyalaya-vrs.-D. Sarala, W.P.(C) No. 38937/2005 vide judgment dtd. 21.04.2006, and of the Hon'ble Andhra Pradesh High Court in the case of Kodall Vani-vrs.- Kendriya Vidyalaya Sangathan, vide judgment dtd. 06.09.2011. Hence, the action of the respondents cannot be faulted with. 2.2 The applicant had never submitted any representation to Respondent No. 3 on 06.11.2019 and submitted the representation directly to the Respondent No.2 in violation of code of conduct for teachers under Article-59 of Education Code for Kendriya Vidyalaya. The subsequent representation dtd. 27.01.2020 was disposed of by the Respondent No.3 vide order dtd. 16.07.2020, which was just, proper and in accordance with rules.
2.3 Respondent No. 4 had neither submitted any final proposal with complete documents (unsafe certificate) for special repair nor declared the said quarter unsafe as such the Respondent No.3 is bound to allot the said quarter to the applicant as per KVS Allotment of Residence Rules, 1998. In addition to above the KVS 8 OA No. 260/00265/2020 had sanctioned the amount for whitewashing and minor repairs upto 2018 which was carried out at Vidyalaya level. That the said Quarter has been occupied by different employee before and was not at all vacant at any time as per the record. Besides, Quarter No.191/1 there are also three quarters in this Block No. 191 which are occupied by the staffs. Hence, the applicant is not entitled to any relief and interim relief sought for in Para-8 & 9 of the Original Application. In view of the facts, reasons and circumstances stated herein above, it is crystal clear that the applicant has not made out any case in his favour and the O.A. is liable to be dismissed with heavy costs and interim order granted to the applicant on 17.07.2020 by this Hon'ble Tribunal be vacated in the interest of justice and equity.
3. The applicant has filed rejoinder and the respondents reply to rejoinder reiterating the stand taken by them in OA and counter.
4. Heard both sides, perused the records and citations relied by them
5. It is the stand of the respondents that the applicant being in top of priority list was allotted the quarter and on his refusal to accept the same, as per clause 11 of the scheme, he is not liable to draw HRA for 9 OA No. 260/00265/2020 the period during which the allotted residence remains vacant or surplus. The respondents have cited decisions of Hon'ble Apex Court and various Hon'ble High Courts to that effect. Whereas on the other hand learned counsel for the applicant opposed to the same and submitted that the applicant had not applied for the quarter, hence allotting the quarter is not permissible as per rule. He further submitted that the said quarter was not in habitable condition and he had immediately informed about the same. Therefore he is entitled to get the HRA.
6. In the decision relied by respondents in the case of Director, CP Crops Research Institute vs M Purushoman AIR 1194 SC 2541, Hon'ble Apex Court has made it clear at para 5 that the reason given by Tribunal that it is only if the employee applies for accommodation and he refuses to accept the same when offered that he would be disentitled to the HRA is not correct. Further in para 6 it has been held that HRA shall not be admissible to those whom accommodation has been offered but who have refused to accept it. Accordingly with those observations Hon'ble Apex Court allowed the appeal.
10 OA No. 260/00265/2020
7. In the present case after the quarter in question i.e. 191/1 became vacant, the respondents issued notice dated 03.10.2019 from eligible staffs to apply within two days. Since none among the list of four employees applied, the KVS authority decided to allot the said quarter under Rule 10 as per priority list and allotted the same to the applicant on 26.10.2019 who was senior most in the panel. The applicant on 07.11.2019 had requested to withdraw the allotment of the said quarter mentioning therein the reason of that being inhabitable and to get it repaired and till that time the allotment may be withdrawn or put on hold. He had again submitted a representation dated 27.01.2020 for cancellation of the allotment of quarter. The respondents vide letter dated 16.07.2020 rejected his claim wherein it is stated that as per quarter allotment rules, HRA will be deducted till someone from the priority list will occupy the quarter and quarter allotment committee will allot the quarter to the person just below seniority and in case of occupancy, HRA will be released from that period. An employee name Sudhir Kumar Sahu had on 21.01.2021 applied for quarter and the said quarter in question was allotted to him on 20.10.2021. 11 OA No. 260/00265/2020
8. It is settled law as per Hon'ble Apex Court that an employee of KVS if not accept the allotment he is not entitled to HRA. However it is not clear why the respondents did not allot the said quarter after refusal by the applicant to next person in the priority list. If the said quarter would have been allotted to the next person from the priority list and if he accepted or refused, the liability on the applicant would have ceased from that date. It is also not forthcoming from the side of the respondents that when Sudhir Kumar Sahu had on 21.01.2021 applied for quarter why the said quarter in question was allotted to him on 20.10.2021 after lapse of around 9 months. It is also seen from records that after allotment of quarter vide letter dated 26.10.2019, the applicant had on 07.11.2019 represented to Respondent No. 2 stating that quarter is not in a habitable condition. It is seen that prior to that on 16.05.2019 (A/8) Respondent No. 3 had requested Respondent No. 4 to provide estimation for special repairing and maintenance which as per Education Code Article 150 (3) (II) which states that special repairs are undertaken to strengthen or replaces the existing damage parts of the building and services which got deteriorated, which obviously means that the quarter was not in a habitable condition. The applicant 12 OA No. 260/00265/2020 too had pointed it out while requesting for cancelling the allotment till the said repair is not made. No forthcoming reasons has been put up by the respondents as to when the repair, if any, was made to the said quarter. It is one reason that quarter has to be allotted if vacant for making up for government loss but it is totally beyond logic that uninhabitable quarters has to be allotted and despite objections raised by the applicant the quarter is allotted.
9. In view of such lapses on the part of the respondents, this Tribunal is of the opinion that the matter needs to be re-considered by the respondents on the following points:
(i) Whether there were any other employee below the applicant in the priority list? If yes, whether they were given allotment of the said quarter as per rules and whether they refused and what action was taken by them.
(ii) What action was taken by the respondents as per letter dated 16.05.2019 (A/8) of Respondent No. 3 and when was the repair work of the said quarter was done to make it habitable?
(ii) Why the delay in allotting the quarter to Sudhir Kumar Sahu for nine months and who is responsible for the same? If the quarter in question 13 OA No. 260/00265/2020 would have been allotted to the Sudhir Kumar Sahu, then there is no question of recovery of HRA from the applicant from 21.01.2021.
The respondents to consider the above points and then decide whether the quarter in question was in habitable condition for allotment, and about the drawal/recovery of HRA from the applicant for the said period.
10. Accordingly the matter is remitted back to the respondents for consideration of the case of the applicant keeping in mind the above points and pass a speaking and reasoned order to be communicated to the applicant within a period of 60 days from date of receipt of copy of this order.
11. The OA is disposed of accordingly. No costs.
(PRAMOD KUMAR DAS) MEMBER (ADMN.) RK/PS