Central Administrative Tribunal - Hyderabad
Dr. C. Nagartnamma W/O Late Dr. P. Ranga ... vs Union Of India (Uoi) Rep. By The Director ... on 2 August, 2007
ORDER
P. Lakshmana Reddy, J. (Vice-Chairman)
1. This application is filed by a Chief Medical Officer, posted in Central Industrial Security Force, Hakimpet, Hyderabad, vide order No. A-22012/42/2--3-CHS-II dated 9.9.2003, with a prayer to set aside the order Nos. E-41022/1418/Wel/06-236 dated 24.1.2006 issued by the D.G. CISF, New Delhi and letter No. C-16098/CISF/NISA/EO/GO/06/5138 dated Semptember, 2006, issued by Respondent No. 2, declaring the same as illegal, arbitrary and unjust and violative of Articles 14 and 16 of the Constitution of India and consequently direct the Respondents to refund the amount of Rs. 50,792/- recovered from the applciant and pay House Rent Allowance from 1.10.2004 to 31.7.2005. The relevant facts of the case are as follows:
The applicant herein was working in Central Government Health Scheme (CGHS for short) and was transferred to Central Industrial Security Force (CISF for short) and joined on 12.9.2003. While she was working in CGHS, she was living in her own house and she was getting House Rent Allowance (HRA for short) and Last Pay Certificate has been issued to her to that effect, which has been produced before the CISF. As per the said LPC, the respondents have paid HRA to the applicant to the tune of Rs. 50,792/- for the period from 12.9.2003 to 30.9.2004. Thereafter the AG Audit Party took objection stating as follows:
II. IRREGULAR PAYMENT OF HRA OF Rs. 50,792/- to Dr. C. Nagaratnamma, CMO:
As seen from the Gazetted pay bill register, house rent allowance was paid to Dr. C. Nagaratnamma, CMO for the period from 09/2003 to 09/2004. But as per rules, HRA cannot be granted, as the family quarter is lying vacant in NISA/CISF for earmarked allotment.
As such the HRA paid for the above period amounting to Rs. 50,792/- (Rs. 18,167/- 09/03 to 02/04 + Rs. 32,625/- 03/2004 to 09/2004) may be recovered and the fact intimated to audit.
Basing on that audit objection on 22.12.2004, Respondent No. 2 issued recovery of over payment order dated 24.12.2004 stating that over payment of HRA has been traced out by the AG Audit and Rs. 50,792/- has been worked out on account of HRA. and that the same is to be recovered from the applicant on instalment basis at the rate of Rs. 5000/- p.m. (Rupees Five thousand only) from December, 2004, to September, 2005, and the last instalment will be Rs. 5792/-. Prior to that, on 4.11.2002, the applicant submitted a representation requesting for permission to stay in her own house with HRA and that application was rejected on 3.12.2004 saying that family quarter is lying vacant and hence the applicant is not entitled to claim HRA. Thereafter, on 11.2.2005 the applicant made another representation for permission to draw HRA. On 22.2.2005, Respondent No. 2 rejected the permission to draw HRA but granted permission to stay outside the campus. Aggrieved by the same, the present application is filed praying for grant of HRA from October, 2004 to 31.7.2005 which has not been paid and for a direction to the Respondents for refund of the HRA recovered from her, the amount paid to her from 12.9.2003 to September, 2004.
2. The Respondents contested the application and filed reply statement stating that the applicant was transferred from CGHS to CISF on 9.9.03 and she assumed charge on 12.9.2003 and pay and allowances including HRA on the basis of LPC was paid to her till September, 2004, and HRA from October, 2004 was not paid. The applicant submitted an application to stay in her own house and to claim HRA stating that (a) she is a widow and her only son was studying in a Degree College (b) she is the only earning member of her family and a patient of "Unstable Angina", (c) she may fall sick at any time and her close relatives takes care of her etc. The respondents informed her on 3.12.2004 that as per Rules, HRA cannot be granted as the family quarter is lying vacant in NISA, CISF for earmarked allotment. It is further stated in the reply that during the month of October, 2004, AG, AP, Audit party carried out audit of accounts and observed that as per the rules HRA cannot be granted as family quarter was lying vacant in NISA, CISF for earmarked allotment. Accordingly the applicant was informed of the recovery of HRA and the mode of recovery. Then the applicant submitted another representation dt. 27.12.2004 stating that she was not given any order of competent authority allotting family quarter and in the absence of any such order, recovery of over payment of HRA does not arise and further stating that her predecessors were paid HRA. In pursuance of that representation, respondents have permitted her to stay outside the campus without claiming HRA. As such the payment of HRA to her has been considered irregular by the AG Audit and recovery of over payment of HRA was made. Hence the applicant is not entitled to claim HRA. It is further stated that the applicant filed another representation on 25.5.2005 with similar request and the same was rejected on 27.5.2005 stating that she had not applied for outliving permission with HRA and that she had applied for outliving permission only on 11.2.2005 and that the family quarter is lying vacant in NISA at the relevant time. It is further stated that the applicant submitted another representation dt. 14.9.2005 addressed to Headquarters at New Delhi to consider her case sympathetically but after discussion at length at CISF Headquarters, the applicant was informed that as per existing rules contained in para-4 of Ministry of Finance OM dated 27.11.1965, the HRA will be admissible to those who are eligible for government accommodation only if they have applied for such accommodation in accordance with prescribed procedure. As the applicant had not applied for family accommodation in the academy nor applied for outliving permission, she is not entitled to claim HRA and that the applicant should not have been paid the same from 12.9.2003 to September, 2004. Hence the said amount is to be recovered from the pay of the applicant. It is further stated in the reply that even afterwards, the applicant submitted another representation dt. 5.7.2006 through the Additional Director of CGHS which was considered by the competent authority but not accedeed to the request of the applicant.
3. The respondents pleaded that they have rightly rejected the applicant's representations as the applicant is not entitled for drawal of HRA and she has been wrongly paid the HRA for certain period from 12.9.2003 to September, 2004 and therefore the said amount is recovered and there is no need for interference by this Tribunal and that the application is liable to be dismissed.
4. The applicant filed rejoinder re-iterating the contentions raised in the application. She stated there in that when she reported to duty on 12.9.2003, the respondents did not issue any order stating that the Medical Officer should stay in the campus and it was not intimated that a family quarter is attached to the post held by a Chief Medical Officer posted to the Academy from Central Health Service and that in fact the predecessors of the applicant were permitted to stay outside the campus with HRA. It is stated that unless the authorities impose a condition that the Medical Officer should stay in the quarter by a specific order intimating the availability of the quarter in the campus, the respondents cannot deny the HRA and that the respondents have not allotted family quarter to the applicant. The Respondents have not given any reasons to refuse the HRA by granting permission to stay outside the campus and that her several representations were disposed of mechanically and further no show cause notice was given prior to ordering recovery of the amount. It is further stated in the rejoinder that the respondents have not applied their mind to the rules and that the impugned order is liable to be quashed.
5. During the course of hearing, learned Counsel for the applicant reiterated the contentions raised in the application and also invited my attention to para-4 of the orders relating to HRA. There is no obligation on the part of the applicant to file an application for government accommodation and to obtain 'no accommodation certificate' to claim HRA as there are no special orders issued by M/o Urban Development in respect of quarters in Hyderabad making it obligatory on the part of the employees to obtain 'No accommodation certificate'. In the absence of any such rule/provision that 'no accommodation certificate' is necessary for claiming HRA, denying HRA as per para-4(a)(1) of the orders relating to HRA is not fair. Learned Counsel for the applicant further submits that no order of allotment of family quarter was given till 3.12.2004. Therefore, the question of occupying the quarter does not arise and therefore the applicant is entitled for HRA upto 3.12.2004.
6. On the other hand, learned senior standing counsel for Respondents Sri G. Jayaprakash Babu contends that the government servants who are eligible for government accommodation has to necessarily submit an application for accommodation and only in case of refusal to allot government accommodation then only they are an entitled to claim HRA and in the instant case the applicant has never made an application nor did she seek permission to stay outside the campus with HRA and therefore the respondents have rightly rejected the claim of HRA and rightly ordered the recovery of the HRA which has been paid to the applicant and that there is nothing for interference by this Tribunal.
7. Learned standing counsel for Respondents has also relied upon para-4(a)(1) of the orders relating to HRA. The points that arises for consideration is (i) whether the applicant is entitled to claim HRA for the period from 12.9.2003 to 3.12.2004; (ii) whether the applicant is entitled to draw HRA for the period from 3.12.2004 to 31.7.2005; (iii) whether the applicant is entitled for refund of the amount of Rs. 50,792/- which was recovered from her pay; (iv) wheter the impugned orders are sustainable in the eye of law.
Points (i) to (iv):
8. In order to appreciate the point (i), it is usefull to extract para-4(a)(i) & (ii) of orders on HRA, which reads as under:
4. The grant of House Rent Allowance shall be subject to the following conditions:
(a)(i) To those Government servants who are eligible for Government accommodation, the allowances will be admissible only if they have applied for such accommodation in accordance with the prescribed procedure, if any, but have not been provided with it, in places where due to availability of surplus Government accommodation, special orders are issued by the Ministry of Urban Development 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. In all other places, no such certificate is necessary.
(ii) Government servants posted in localities where there is at present no residential accommodation in the General Pool owned or requisitioned by the Central Government for allotment to them, need not apply for Government residential accommodation in order to become eligible for House Rent Allowance. But where Government quarters are available for the staff of specified Departments or for specified categories of staff, the procedure for applying for accommodation will be regulated under the rules of allotment of the Department concerned or of the local office of the Central Public Works Department, as the case may be.
As seen from 4.(a)(i), the obligation to file application seeking accommodation and to file 'no accommodation' certificate in respect of Government Residential Accommodation in order to claim HRA is applicable only in places where due to availability of surplus Government Accommodation special orders are issued by the Ministry of Urban Development Authority from time to time making it obligatory for the employees concerned to obtain and furnish the 'no accommodation' certificate at the place of posting in order to claim HRA. But in respect of other places, no such 'no accommodation' certificate is necessary to claim HRA. Here, in the instant case, no specific orders issued by the Ministry of Urban Development Authority in respect of Hyderabad have been produced. On the other hand the last sentence in para-4(a)(i), it is stated that 'in all other places, no such certificate is necessary'. Without there being a specific order, there is no obligation on the part of the employee to make an application seeking accommodation and obtain 'no accommodation' certificate for claiming HRA. Admittedly, no specific order has been issued to the applicant intimating that there is a government accommodation available for allotment to her and she cannot claim HRA. On the other hand, admittedly, the respondents have paid HRA from the date of her joining till the end of September, 2004, as per the Last Pay Certificate. Therefore, the applicant cannot be found fault with for her claiming HRA. For the first time, it is only on 3.12.2004, an order has been issued stating that as the family quarter is vacant for allotment in the campus. Hence she cannot claim HRA from 3.12.2004. But till then she has not been intimated about the availability of family quarter in order to deny the HRA. It is for the department to establish that accommodation is available for allotment to the employee. Inspite of such an offer of allotment, if the employee does not chose to occupy the same, then, it can be said that the employee cannot claim HRA because, as per para-4(a)(ii). So far as the period for which the HRA has been paid to the applicant to the tune of Rs. 50,792/- there was no offer of allotment by the respondents to the applicant. Therefore, till the offer of government accommodation is made to the government employee, the employee is entitled to draw HRA. In fact, the applicant was drawing HRA prior to her joining in CISF and the CISF also paid HRA as per the LPC. Therefore, it is not open to the respondents to turn round and say that the family quarter is available even on the date of her joining and hence she should not be permitted to draw HRA. Therefore, in my considered view, the recovery of Rs. 50,792/- from the applicant is not just and proper and it is arbitrary and is not in accordance with Rules. Even the Audit Party did not specify any such specific rule making it obligatory on the part of the employee to obtain 'no accommodation' certificate for claiming HRA. Therefore, the order of recovery of the said amount is not sustainable in the eye of law. It is found that the Respondent authorities have informed the applicant vide order dated 3.12.2004 that family quarter is available for allotment and till then, the applicant is entitled for HRA. The applicant is entitled to claim refund of HRA amount recovered from her and also for the HRA for the months of October and November, 2004. So far as the period from December, 2004, the applicant is not entitled to claim HRA as an order in writing was given intimating the applicant that the quarter is available for allotment and that she is not entitled to claim HRA while living outside the campus. Therefore, for that period, the applicant is not entitled for drawal of HRA. Thus, these points are answered accordingly.
9. The application is partly allowed and the impugned orders are quashed to the extent of allowing HRA for the period from 12.9.2003 to 2.12.2004. The application is dismissed in respect of claim of HRA from 3.12.2004 to 31.7.2005. These orders shall be implemented within three months from the date of receipt of this order.
10. In the circumstances of the case, there shall be no order as to costs.