Central Administrative Tribunal - Delhi
Dr. Rajendra Prasad Mishra vs Union Of India & Ors Through on 2 April, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH : NEW DELHI O.A. NO.492/2009 MA 327/2009 & MA 408/2009 with O.A. NO.493/2009 MA 328/2009 & MA 409/2009 New Delhi, this the 2nd day of April, 2009 CORAM: HONBLE MRS. MEERA CHHIBBER, MEMBER (J) HONBLE DR. VEENA CHHOTRAY, MEMBER (A) OA 492/2009: 1. Dr. Rajendra Prasad Mishra, S/o Late Paras Nath Mishra, OH-200, Pallavpurm Phase-II, Meerut 2. Shri Surya Kant, S/o Shri Mahavir Singh, 358/5, Nehru Nagar, Meerut 3. Shri Rai Bahadur, S/o Late Shri Har Gulal, 29/5, Jagriti Vihar, Meerut 4. Shri Satish Kumar Bansal, S/o late Shri VP Bansal, 68, Shiv Shankar Puri, Meerut. 5. Shri Brij Beer Singh, S/o Shri Godhu Ram, Town and Post-Daurala, Ward No.1, District-Meerut 6. Shri Sanjay Kumar Gupta, S/o Shri Rajender Gupta, D-9, Meenaksi Puram, Meerut 7. Shri Ravi Kant Sharma, S/o Late Shri V.D. Sharma, O-73, Phase-II, Pallavpuram, Modipuram, Meerut 8. Smt. Jai Lata Sharma, W/o Shri K.K. Sharma, Q-222, Phase-II, Pallavpuram, Modipuram, Meerut 9. Smt. Alka Jain, W/o Shri Pankaj Jain, 259, Thatherwada, Meerut 10. Shri Parmanand, S/o Shri Roop Chand, Village & Post Jittoly, Distt. Meerut (UP) 11. Shri Rajendra Singh, S/o Shri Bhanvan Singh, P-14, 15, EWS, Phase-II, Pallavpuram 12. Mr. Chetram, S/o Shri Dwarika Prasad, OH-202, Phase-II, Pallavpuram, Meerut 13. Shri Jagpal Singh, S/o Shri R.P. Singh, Q-74, Phase-II, Pallavpuram, Meerut 14. Shri Krishanpal, S/o Shri D. Singh, R-55, Pallavpuram, Phase-II, Meerut 15. Mr. Yogender Singh, S/o Late Shri Lakhi Ram, R-127, Pallavpuram, Phase-II, Meerut 16. Dr. D. Tripathi, S/o Shri K.D. Tripathi, OH-201, Pallvpuram, Modipuram, Meerut 17. Shri K.V. Anand, S/o Shri J.P. Anand, 68, Golden Av.1, Roorkee Road, Meerut 18. Shri Vipin Kumar, S/o late Shri Ved Pal Singh, Q-158, Pallavpuram, Phase-II, Modipuram, Meerut 19. Shri S.P. Singh, S/o Late Shri Balwant Singh, E-103, Shardhapuri-II, Meerut 20. Shri S.K. Duhoon, S/o Shri Ishwar Singh Duhoon, OH-235, Pallavpuram-II 21. Shri OK Tomar, S/o Shri Subey Singh, Q-157, Pallavpuram-II 22. Shri P.P. Misra, S/o Shri K.N. Misra, OH-205, Phase-II, Pallavpuram, Meerut 23. Shri D.P. Singh, S/o Shri SP Singh, OH-206, Pallavpuram, Meerut 24. Shri Brijesh Sharma, S/o Sh. RD Sharma, 272, Shivlok, Kankerkhera, Meerut Cantt. 25. Shri Dinesh Pandey, S/o Shri RM Pandey, OH-199, Pallavpuram, Meerut 26. Shri Ashok Kumar, S/o Shri Mohinder Singh, P-142m EWS, Phase-II, Pallavpuram, Meerut 27. Mrs Anju Verma, W/o Raj Kumar Verma, Q-282, Pallavpuram, II Phase, Meerut 28. Dr. Prem Singh S/o Late Shri Niranjan Singh, B-10, Phase-II, Modipuram, Pallavpuram, Meerut 29. Dr. Deverndra Singh, S/o Late Shri Sunder Singh, A-14, Phase-II, Pallavpuram, Meerut 30. Dr. V.K. Singh, S/o late RK Singh, NH-79, Pallavpuram Phase-II, Modipuram, Meerut 31. Dr. B.K. Sharma, S/o late Manbihari Lal Sharma, BH-79, Pallavpuram, Phase-I, Modipuram, Meerut 32. Dr. Mahander Singh, S/o Late Shri Shish Ram, C-68, Pallavpuram, Phase-I 33. Dr. S.S. Pal, S/o Shri Satish Chandra, H.No.53, Queens Land Park, Delhi Roorkee by-Pass, Near Railway Crossing, PO-Modipuram, Meerut 34. Shri Jai Pal Singh, S/o Shri Prabhu Singh, P-41, EWS, Palavpuram, Phase-II, Modipuram, Meerut 35. Dr. Kanta Prasad, S/o Late Shri Hem Ram, D-37, Pallavpuram Phase-1, Modipuram, Meerut .Applicants (By Advocate: Shri M.K. Bhardwaj) VERSUS Union of India & Ors through: 1. The Secretary, Ministry of Agriculture, Krishi Bhavan, New Delhi 2. The Secretary, Department of Agriculture, Research and Education & Director General, ICAR, Krishi Bhawan, New Delhi 3. Dr. M.S. Gill, The Project Director, Project Directorate for Cropping System Research, ICAR, Modipuram, Meerut .Respondents (By Advocate:Shri Shiva Raj B. Mathur) OA 493/2009: 1. Dr. B. Gangwar, S/o Shri Net Ram Gangwar, R/o 44, Golden Avenue, Phase-III, Roorkee Road, Dorli Meerut 2. Dr. G.C. Sharma, S/o Late MD Sharma, 198, Govindpuri, Kankar Khera, Meerut Cantt 3. Dr. S.P. Singh, S/o Shri Bissi Ram Singh, Q-190, Pallavpuram, Phase-II, Modipuram Meerut 4. Dr. K.S. Gangwar, S/o Late R.C.L. Gangwar, T-91, Phase-II, Pallavpuram, Meerut 5. Dr. K.K. Singh, S/o Shri Mahabir Singh, OH-24, Phase-II, Pallavpuram, Meerut Dr. J.P. Singh, S/o Late Shri Hargovind Singh, 28/5, Jagriti Vihar, Meerut .Applicants (By Advocate: Shri M.K. Bhardwaj) VERSUS Union of India & Ors through: 1. The Secretary, Ministry of Agriculture, Krishi Bhavan, New Delhi 2. The Secretary, Department of Agriculture, Research and Education & Director General, ICAR, Krishi Bhawan, New Delhi 3. Dr. M.S. Gill, The Project Director, Project Directorate for Cropping System Research, ICAR, Modipuram, Meerut .Respondents (By Advocate:Shri Shiva Raj B. Mathur) O R D E R By Dr. Veena Chhotray, Member (A):
MA Nos. 327 and 328 of 2009 filed by the applicants for joining together in a single application is allowed.
2. OA Nos. 492/2009 and 493/2009 are proposed to be disposed of by this common order since the cause of action in both the OAs is the same involving identical facts and issues of law. OA No.492/2009 titled Dr. Rajendra P. Mishra & Ors has 35 applicants and the OA No.493/2009 titled Dr. B. Gangwar & Ors has 6 applicants. The applicants in both the OAs are serving in the respondent-Project Directorate for Cropping System Research under the Indian Council of Agricultural Research. OA No.492/2009 is being taken as the lead case in this order with the references therein pertaining to this OA unless otherwise specified.
3. The applicants are assailing respondents order by which they are being forced to occupy the houses allotted to them within a stipulated time frame, failing which their HRA would not be drawn and paid w.e.f. March 2009. The OA seeks quashing of the impugned order dated 17/19.1.2009 and other related orders with all consequential effects. Besides a direction for not stopping the House Rent Allowance (HRA) of the applicants has also been sought. By way of interim relief, stay of the impugned order and a direction for not stopping the HRA of the applicants till final outcome of the OA have also been sought.
4.1 The learned counsel for the applicants, Shri M.K. Bhardwaj, would submit that rules stipulate entitlement of HRA to Government servants living in their own houses. The applicants who had not been allotted Government accommodation despite repeated requests, had constructed their own houses after taking HBA and arranging loans from outside agencies. The averment of staying in their own houses with the permission of the controlling authority would also be made.
4.2 The respondents, however, vide their Circular dated 17/19.01.2009 had invited applications for allotment of residential quarters as specified therein. It is also stated that all the eligible employees living in private accommodation/own accommodation were directed to submit their applications for allotment of Directorate residential quarters as specified therein. The applications were to be submitted latest by 10.2.2009. Para-3 of the Circular mentions that the HRA was not to be drawn and paid with effect from March, 2009 in respect of the employees who had been allotted such quarters but did not take possession within 15 days of allotment. This circular has been impugned in the present OA.
4.3 Learned counsel, Shri Bhardwaj, would pose the question as to whether a Government servant who had been permitted to draw HBA and had accordingly constructed a house could be forced to change the same on threat of withholding of HRA, after 20 years? It would be submitted that the government houses in this case have not been constructed by the respondents but acquired from a sister organization i.e. Project Directorate for Cattle, Meerut. The rationale behind the decision of acquisition as also habitability of the houses in question have also been challenged. The OA annexes proceedings of the meeting of ARS Forum of PDCSR, Modipuram Unit, on 22.1.2009, in which the matter of house allotment for different residential quarters was discussed at length. It was urged in the meeting that the scientists who have their own houses after due permission of the controlling authority and availing of HRA may not be forced to submit their applications for house allotment as they did not fall in the category of eligibility. Putting a question mark regarding the present state of the houses, it was alleged that categorization of the houses was not as per the Government norms. Besides, their general maintenance and upkeep was said to be very poor and not safe to live. As per the Forums view, all the houses needed to be renovated properly to provide hygienic and non-hazardous living conditions. It is also recorded that acquiring of these houses from the sister organization had, in fact, been done without anticipating the actual requirement and therefore, they should immediately be returned to the Project Directorate for Cattle. Besides eight new houses were constructed/renovated without need and proper demand projection. All these houses are lying vacant. The plea of the Scientists not to be punished, for these vacant quarters, by cutting their HRA has also been made.
The facts stated in the above proceeding briefly sum up the stand of the applicants. However the OA does not disclose nor was the learned counsel, Shri Bhardwaj, able to throw any light on this aspect as to whether a representation on the basis of the proceeding was submitted to any authority and if yes, what was the outcome of it.
4.4 The rejoinder makes the inter alia averment that the quarters are scattered at different places and are not in the form of a unified colony. Insinuations of the purchases having been made for extraneous reasons and for personal gains have also been made. The rejoinder further states that the said houses are still under control of the sister organization and some of the employees of the said organization continue to reside therein.
4.5 The learned counsel for the applicant would refer to the GOI OM dated 8.11.1988 under the FRSR Vol.V, Rule 5 and aver that as per the exception carved under this rule Government servants staying in their own private houses are entitled for payment of HRA.
5. The OA has been contested by the respondents. The counter affidavit avers regarding the OA not being maintainable in view of the law laid down by the Honble Supreme Court in the case of Director, Central Plantation Crops Research Institute, Kesaragod & Ors v. M. Purushothaman & Ors, 1995 Supp (4) SCC 633 (para-1 of preliminary objections). The learned counsel appearing on behalf of the respondents, would make the submission that the facts of this case were similar to the present one and the Honble Supreme Court had held the view that HRA is a compensation in lieu of accommodation and not a part of pay. Therefore, furnishing of accommodation immediately disentitles an employee to HRA.
The rival contentions regarding the houses in question being uninhabitable or their acquisition having been made without verifying the actual requirement have also been rebutted. The learned counsel would make the submission that mere allegations, as was being done by the applicants, were not enough. Further, it would be averred that since the case was fully covered by the aforesaid Supreme Court judgment, the OA merited to be dismissed straightaway.
6. The respondents averment regarding the present OA being covered by the aforesaid judgment of the Apex Court would be rebutted by the learned counsel for the applicants. It would be submitted that this particular judgment had expressed the view of the Honble Apex Court only on the basis of a particular OM, which was as old as 1965. As per the learned counsel, the above judgment did not cover the present case; instead reliance would be placed on a recent decision of the Tribunal in OA No.218/2006 (Paromita Bhattacharya & Ors. v. The Commissioner, K.V.C., New Delhi & Ors decided on 9.9.2007)(Annexure A/5). The learned counsel would contend that after taking due notice of the law on the subject including the aforesaid judgment of the Apex Court, the Tribunal had allowed the OA and struck down the action of the respondents in stoppage of HRA. This was a case where the applicants while staying in their houses had been allotted government houses without having applied for the same. Because of their denial to occupy the said houses, their HRA had been stopped.
By way of rebuttal, the learned counsel for the respondents would submit that the Tribunals decision in the case, being cited by the applicants, was about the Kendriya Vidyalaya Sangathan and the facts of the case were different from the instant one.
6.1 The legal ground adduced in support of the OA is that as per the relevant rules, Govt. servants staying in their own private houses are eligible for HRA. In support, Rule 5 of FRSR Vol.V and Govt. of India OM dated 8.11.1988 have been cited. The relevant rule is relating to the conditions for drawal of House Rent Allowance. While clauses (a) and (b) of this rule now stand deleted, clause (c) specifies various contingencies in which a Government servant shall not be entitled to HRA. Clause (d) has also been deleted. Under clause (e), as an exception, Government servants living in their own houses have been made eligible to HRA.
However, the point remains that the issue here is different. The issue under adjudication is not regarding the eligibility or otherwise for HRA of an employee living in his own accommodation but whether such HRA can be claimed even when the concerned employee has been allotted a Government accommodation which offer he has declined. Since this issue has specifically come for consideration of the Apex Court at length in the judgment cited by the respondents, we would dwell on it.
6.2 In Director, Central Plantation Crops Research Institute, Kesargod & Ors (supra), the employees had declined to occupy the allotted Govt. quarters for one reason or the other, and they had been denied the benefit of HRA which they had been drawing till that time. Allowing the OA, the Tribunal had held that the employees cannot be compelled to occupy official quarters. Further HRA being a part of wages, no deduction could be made merely on account of refusal for acceptance of the accommodation.
The above view of the Tribunal was not agreed to by the Honble Supreme Court. As one of the issues involved was whether HRA could be denied even where the allotment of government accommodation had been done without any application on the part of the concerned government servant; the Honble Apex Court had considered the office memorandum dated 27.11.1965 of the Ministry of Finance. This OM stipulated both the contingencies regarding non-admissibility of HRA in cases where the declined acceptance of official accommodation was in response to the applications or even without it. Besides, the Honble Court had also considered the issue of huge public funds being spent for construction and maintenance of the quarters for the employees and non-occupation resulting in waste of public resources. Construction of houses at the cost of public exchequer and further grant of HRA to the allottees was regarded as a double jeopardy for the government. The view unequivocally taken was that the HRA is not a matter of right and is in lieu of accommodation not made available to the employees. The relevant extracts taken from the judgment are as follows:-
5. It is clear from the aforesaid provisions that paragraphs 4(a)(i) and (ii) lay down the procedure for making 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 that an application has to be made to secure accommodation. However, that does not mean that the Government or the organization such as the appellant-Organization 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 employees applies for such accommodation and he refuses to accept the same when offered that he would be disentitled to HRA, is not correct. It must be remembered in this connection that the Government or the organization of the kind of the appellant 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 if they are to lie unoccupied. 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 HRA. The Management cannot be saddled with double liability, viz., to construct and maintain the quarters as well as to pay HRA. This is the rationale of the provisions of paragraph 4 of the said Government Office Memorandum. (emphasis supplied) The Honble Apex Court had also taken exception to the Tribunals view regarding HRA being a part of the wages. Discussing the scope of pay as defined under Fundamental Rule-9.21(a), it was clarified that HRA was not a part of pay, on the other hand it was found to be in the way of a compensatory allowance as defined under FR-44. The Honble Apex Court gave a clear finding in this regard as under:
8. HRA would be covered by the definition of compensatory allowance. It is compensation in lieu of accommodation. This definition itself further makes it clear that compensatory allowance is not to be used as a source of profit. It is given only to compensate for the amenities which are not available or provided to the employee. The moment, therefore, the amenities are provided or offered, the employee should cease to be in receipt of the compensation which is given for want of it. xxxxxxx 6.3 The other decision referred to in this case is by the Tribunal in OA No.218/2006. This was a case of KVS teachers living in their own houses being allotted Government quarters without any application on their part. The stoppage of HRA by the respondents had been challenged. The OA had been allowed by the Tribunal considering the facts of the case and various judgments on the subject. Relying upon the earlier judgment in Mrs. Suchitra Dhar & Ors v. Commissioner, KVS & Ors (OA Nos.511 to 513 of 2003 decided on 12.12.2003), the following observations were quoted:-
The Government and sits organizations have adopted it as a deliberate policy to encourage its employees to buy their own houses. HRA is also provided with the objective of passing burden of repayment if the employee has taken loan for purchasing house of his own. Tribunal has not accepted the contention of the Respondent that in case Applicants are living in their own houses or house owned by their family members, HRA will not be applicable in case of surplus accommodation available.
The order mentions that the judgment in Suchitra Dhars case had been pending for disposal, though no interim stay had been passed. While allowing the OA, the ground of discrimination had also been taken into account. It was observed that while HRA was being allowed in cases of similarly placed employees, only five employees had been punished by stopping their HRA.
7. Apart from the above, there is another aspect deserving consideration in these OAs. This pertains to the averment regarding the houses in question not being in right condition and not being fit for occupation. The allegation of these houses being scattered rather than in a unified colony is also relevant. All these find place in the proceeding at Annexure A/2. The learned counsel for the applicant, in course of his oral submissions, would also mention regarding the respondents being asked to take a decision on the various contentions being raised by the applicants.
8. To conclude, the rules being relied upon relate to admissibility of HRA and cannot be pressed upon in support of the present claims. Similarly, the facts in the OA 218/2006 were distinguishable from the present one as it had also involved the ground of hostile discrimination. We find that the Honble Apex Court in Director, Central Plantation Crops Research Institute (supra) has unequivocally viewed HRA as not admissible where the employees decline offered accommodations, irrespective of the fact whether they made an application for the same or not. However, the applicants averments questioning the habitability of the houses have not been considered by the respondents. We are of the view that at present stage, the ends of justice will be served if such a representation is considered by the respondents on merit.
In view of the foregoing, the OA is disposed with a direction that the applicants would make a representation of their grievances on this subject to the respondents which the latter would consider by a speaking and reasoned order within a period of three months on receipt of such a representation.
Till then, respondents are restrained from stopping the HRA of the applicants, as directed by the Tribunal vide order dated 23.2.2009. Accordingly, MA Nos.408 and 409 of 2009 filed by the respondents for vacation of interim order stand disposed of. No order as to costs.
Let a copy of this OA be also placed in OA No.493/2009.
(Dr. Veena Chhotray) (Meera Chhibber)
Member (A) Member (J)
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