Gujarat High Court
Nareshkumar Jashubhai Vaghela & 9 vs State Of Gujarat & 5 on 24 January, 2017
Author: Sonia Gokani
Bench: Sonia Gokani
C/SCA/1224/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 1224 of 2017
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NARESHKUMAR JASHUBHAI VAGHELA & 9....Petitioner(s)
Versus
STATE OF GUJARAT & 5....Respondent(s)
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Appearance:
MS SHUBHA B TRIPATHI, ADVOCATE for the Petitioner(s) No. 1 - 10
ADVANCE COPY SERVED TO GP/PP for the Respondent(s) No. 1
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 24/01/2017
ORAL ORDER
1. The petitioners, herein, have approached this Court seeking following reliefs:
"11. ...
A. To issue a Writ of Mandamus or any other appropriate Writ, order or direction directing the respondent authorities to pay the HRA at the rate of 20% and the CLA as per basic salary of the petitioners by holding that the petitioners are serving at the placed covered under the Greater Ahmedabad Urban Agglomeration, which includes the extended limits of Ahmadabad Urban Development Authority (AUDA).
B. Pending hearing and final disposal of this petition, this Hon'ble Court be pleased to direct the respondent authorities to pay HRA at the rate of 20% and the proportionate CLA as per basic salary of the petitioners' w.e.f. 1.4.2009.Page 1 of 15
HC-NIC Page 1 of 15 Created On Thu Jan 26 02:18:47 IST 2017 C/SCA/1224/2017 ORDER C. The arrears of the HRA and CLA may kindly be directed to pay with suitable interest.
D. ..."
2. This Court, in case of similarly
situated persons, in Special Civil Application
No.249 of 2017 and the allied matters, allowed the same by observing and holding as under in Paragraphs-3 to 5, thereof;
"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 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 Page 2 of 15 HC-NIC Page 2 of 15 Created On Thu Jan 26 02:18:47 IST 2017 C/SCA/1224/2017 ORDER 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-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 Page 3 of 15 HC-NIC Page 3 of 15 Created On Thu Jan 26 02:18:47 IST 2017 C/SCA/1224/2017 ORDER 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 Page 4 of 15 HC-NIC Page 4 of 15 Created On Thu Jan 26 02:18:47 IST 2017 C/SCA/1224/2017 ORDER 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 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 Page 5 of 15 HC-NIC Page 5 of 15 Created On Thu Jan 26 02:18:47 IST 2017 C/SCA/1224/2017 ORDER 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 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 Page 6 of 15 HC-NIC Page 6 of 15 Created On Thu Jan 26 02:18:47 IST 2017 C/SCA/1224/2017 ORDER 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 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
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C/SCA/1224/2017 ORDER
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 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 Page 8 of 15 HC-NIC Page 8 of 15 Created On Thu Jan 26 02:18:47 IST 2017 C/SCA/1224/2017 ORDER 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.
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 Page 9 of 15 HC-NIC Page 9 of 15 Created On Thu Jan 26 02:18:47 IST 2017 C/SCA/1224/2017 ORDER 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 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 Page 10 of 15 HC-NIC Page 10 of 15 Created On Thu Jan 26 02:18:47 IST 2017 C/SCA/1224/2017 ORDER 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 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 Page 11 of 15 HC-NIC Page 11 of 15 Created On Thu Jan 26 02:18:47 IST 2017 C/SCA/1224/2017 ORDER 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, Sanand, Ahmedabad.
5 Karansinh Bihola
Head Clerk, Shrimati
Manekba Krushi
Vidhyalaya,
Adalaj, Dist:
Gandhinagar
6 Jayendrabhai Bhatt
Clerk, Sarvajanik
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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.
(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 Page 13 of 15 HC-NIC Page 13 of 15 Created On Thu Jan 26 02:18:47 IST 2017 C/SCA/1224/2017 ORDER 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. "
3. All the relevant observations made by this Court in Letters Patent Appeal No. 616 of 2003 and the allied matters and confirmed by the Page 14 of 15 HC-NIC Page 14 of 15 Created On Thu Jan 26 02:18:47 IST 2017 C/SCA/1224/2017 ORDER 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.
4. Accordingly, this petition is 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.
(MS SONIA GOKANI, J.) UMESH Page 15 of 15 HC-NIC Page 15 of 15 Created On Thu Jan 26 02:18:47 IST 2017