Central Administrative Tribunal - Allahabad
Rama Shanker Shukla vs Dgqa, D/O Defence Production on 25 January, 2024
OA No. 205 of 2020
Reserved
(On 16.01.2024)
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH
ALLAHABAD.
Dated : This the _25th day of _January_ 2024
Hon'ble Dr. Sanjiv Kumar, Member (A)
Original Application No. 205 of 2020
1. Rama Shanker Shukla aged about 59 years S/o Jagadish Prashad
Shukla, O/o Controllerate of Quality Assurance (Material), Ashok
Path, Kanpur-208004
2. Renu Pathak, w/o late Ram Krishna Pathak O/o Controllerate of
Quality Assurance (Material), Ashok Path, Kanpur-208004
3. Madhu Maloo aged about 57 years w/o Alok Kumar Maloo, O/o
Controllerate of Quality Assurance (Material), Ashok Path, Kanpur-
208004
4. Siddhant Anand S/o Rama Shankar Lal, O/o Controllerate of
Quality Assurance (Material), Ashok Path, Kanpur-208004
5. Anand Kumar Sharma S/o Anil Kumar Sharma, 0/0 Controllerate of
Quality Assurance (Material), Ashok Path, Kanpur-208004
6. Gyan Das aged about 58 years S/o Pooran Lal, O/0 Controllerate
of Quality Assurance (Material), Ashok Path, Kanpur-208004
7. Rajesh Sahgal aged about 46 years, S/o Ram Narayan Sahgal, 0/0
Controllerate of Quality Assurance (Material), Ashok Path, Kanpur-
208004
8. Mahesh Babu aged about 52 years S/o Daya Shankar, O/o
Controllerate of Quality Assurance (Material), Ashok Path, Kanpur-
208004
9. Vibha Sharma aged about 43 years w/o Shamrendra Sharma, O/o
Controllerate of Quality Assurance (Material), Ashok Path, Kanpur-
208004
10. Rajesh Kumar aged about 50 years Son of Muni Nath, O/o
Controllerate of Quality Assurance (Material), Ashok Path, Kanpur-
208004
11. Kavita aged about 49 years w/o Ratan Kumar, 0/0 Controllerate of
Quality Assurance (Material), Ashok Path, Kanpur-208004
12. Bolin aged about 58 years S/o Babban, O/o Controllerate of Quality
Assurance (Material), Ashok Path, Kanpur-208004
13. Anju Anand aged about 57 years w/o Arvind Vir Anand, O/o
Controllerate of Quality Assurance (Material), Ashok Path, Kanpur-
208004
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OA No. 205 of 2020
14. Manish Pandey aged about 38 years S/o Ravindranath Pandey,
O/o Controllerate of Quality Assurance (Material), Ashok Path,
Kanpur-208004
15. Lalit Kumar Dwivedi aged about 51 years S/oShiv Balak Dwivedi,
0/0 Controllerate of Quality Assurance (Material), Ashok Path,
Kanpur-208004
16. Ashwini Raj S/o Kamlesh Kumar, O/O Controllerate of Quality
Assurance (Material), Ashok Path, Kanpur- 208004
17. Santosh Kumar Savita aged about 50 years S/o Prabhu Dayal
Savita, O/o Controllerate of Quality Assurance (Material), Ashok
Path, Kanpur-208004
18. Rashmi Savita aged about 39 years S/o Vikash Savita, O/o
Controllerate of Quality Assurance (Material), Ashok Path, Kanpur-
208004
19. Mahesh Kumar aged about 52 years S/o Moti Lal, O/o Controllerate
of Quality Assurance (Material), Ashok Path, Kanpur-208004
20. Pratibha Dwivedi, S/o Rahul Dwivedi, O/o Controllerate of Quality
Assurance (Material), Ashok Path, Kanpur-208004
21. Ashok Kumar Gaur aged about 52 years S/o Bhagwat Prashad,
O/O Controllerate of Quality Assurance (Material), Ashok Path,
Kanpur-208004
22. Poonam Sharma, S/o Hari Prakash Sharma, 0/0 Controllerate of
Quality Assurance (Material), Ashok Path, Kanpur-208004
23. Virendra Kumar aged about 53 years S/o Gaya Prashad, O/O
Controllerate of Quality Assurance (Material), Ashok Path, Kanpur-
208004
24. Parul, S/o Krishan Mohan Shrivastava, 0/0 Controllerate of Quality
Assurance (Material), Ashok Path, Kanpur-208004
25. Pushpa Kanojia S/o Sanjay Kanojia, O/o Controllerate of Quality
Assurance (Material), Ashok Path, Kanpur- 208004
26. Madhulika Sinha S/o Sujeet Sinha, O/o Controllerate of Quality
Assurance (Material), Ashok Path, Kanpur- 208004
27. Anjali Dayal w/o Ravindra Kumar, O/o Controllerate of Quality
Assurance (Material), Ashok Path, Kanpur- 208004
28. Reena Sehgal w/o Raman Sehgal, O/O Controllerate of Quality
Assurance (Material), Ashok Path, Kanpur- 208004
29. Anil Kumar Bhatnagar aged about 59 years S/o Gyan Swarup, O/o
Controllerate of Quality Assurance (Material), Ashok Path, Kanpur-
208004
30. Nand Kishor S/o Ram Sevak, O/o Controllerate of Quality
Assurance (Material), Ashok Path, Kanpur- 208004
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OA No. 205 of 2020
31. Radha Sharma w/o Sanjay Sharma, O/o Controllerate of Quality
Assurance (Material), Ashok Path, Kanpur- 208004
32. Arun Kumar aged about 51 years s/o Patan Deen, 0/0 Controllerate
of Quality Assurance (Material), Ashok Path, Kanpur-208004
33. Sanjay Singh aged about 52 years S/o Jyoti Bhusan Singh, O/o
Controllerate of Quality Assurance (Material), Ashok Path, Kanpur-
208004
34. Naresh Goel aged about 48 years
S/o Amarnath Goel,O/o Controllerate of Quality Assurance (Material),
Ashok Path, Kanpur-208004
35. Neeraj Yadav S/o Sambhu Sharan Sing Yadav, O/o Controllerate
of Quality Assurance (Material), Ashok Path, Kanpur-208004
36. Sunil Chandra Katiyar 59 Years S/o Chhedi Lal, O/o Controllerate
of Quality Assurance (Material), Ashok Path, Kanpur-208004
37. Jai Narayan about 58 years S/o Mahangu Ram Jaiswar, O/o
Controllerate of Quality Assurance (Material), Ashok Path, Kanpur-
208004
38. Rajendra Kumar Sharma about 59 years S/o Ram Jeet Sharma,
0/0 Controllerate of Quality Assurance (Material), Ashok Path,
Kanpur-208004
39. Manish Saxena S/o Rama Shankar Saxena, 0/0 Controllerate of
Quality Assurance (Material), Ashok Path, Kanpur-208004
40. Anju Pal S/o Dharmendra Singh, O/o Controllerate of Quality
Assurance (Material), Ashok Path, Kanpur- 208004
41. Mohan Singh Negi about 59 years S/o KS Negi O/o Controllerate of
Quality Assurance (Material), Ashok Path, Kanpur-208004
42. Veena Nigam about 58 years w/o Ajay Kumar Nigam, O/o
Controllerate of Quality Assurance (Petroleum Products), Ashok
Path, Kanpur-208004
43. Kalim Akhtar Ansari about 50 years S/o Mohd Ismail Ansari, O/o
Controllerate of Quality Assurance (Petroleum Products), Ashok
Path, Kanpur-208004
44. Nawab Chandra about 56 years S/o Mohan Lal, O/0 Controllerate
of Quality Assurance (Petroleum Products), Ashok Path, Kanpur-
208004
45. Mahesh Chandra about 53 years S/o Ganesh, O/o Controllerate of
Quality Assurance (Petroleum Products), Ashok Path, Kanpur-
208004
46. Heera Sing Gill about 57 years S/o Ninder Singh Gill, O/o
Controllerate of Quality Assurance (Petroleum Products), Ashok
Path, Kanpur-208004
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OA No. 205 of 2020
47. Nilu Lal w/o Mahesh, O/o Controllerate of Quality Assurance
(Petroleum Products), Ashok Path, Kanpur- 208004
48. Krishna Kumar about 59 years S/o Tula Ram Verma, O/o
Controllerate of Quality Assurance (Petroleum Products), Ashok
Path, Kanpur-208004
49. Sandhya Prajapati S/o Durga Prasad, O/o Controllerate of Quality
Assurance (Petroleum Products), Ashok Path, Kanpur-208004
50. Sushil Shukla about 54 years S/o Ram Nath Shukla, O/o
Controllerate of Quality Assurance (Petroleum Products), Ashok
Path, Kanpur-208004
51. Pawan Kumar Sharma about 55 years S/o Dharam Pal Sharma,
O/O Controllerate of Quality Assurance (Petroleum Products),
Ashok Path, Kanpur-208004
52. Ram Kumar Bharti about 59 years S/o Ram Vilas Bharti, O/o
Controllerate of Quality Assurance (Petroleum Products), Ashok
Path, Kanpur-208004
53. Dinesh Pal about 40 years S/o Prem Lal Pal, R/o 31- Siddharth
nagar, I.I.T, Kanpur Nagar-208016
54. Manjari Chakraborty about 60 years w/o S.K. Chakraborty, R/o 358
Kazi Khera Lal Bangla Harjinder Nagar Kanpur- 208007
55. Satya Deo Pandit about 60 years S/o B. Pandit, R/o H. N. 727
Netaji Nagar Harjinder Nagar Kanpur-208007
56. Shankar Bhakta about 57 years, R/o 1/28 Swarnajayanti Vihar
Koyela Nagar Kidwai Nagar Kanpur-208011.
57. Surya Bali about 60 years S/o Ram Bharosey, R/o 18/177
Karmachari Nagar PAC road Harjinder Nagar Kanpur 208007
58. Amar Deep Nigam about 60 years S/o Gopal Das Nigam, R/o
19/133 Ram Narayan Bazar Kanpur -208001
59. Rajendra Methani about 58 years S/o Devendra, R/o H 1670
Kalyan Pur Kurdasatyam Nagar. Kanpur-208001
60. Dhirendra Kumar Awasthi about 48 years S/o Shri Girish Chadra
Awasthi, O/o CQA (T&C) Ashok Path, Kanpur Pin- 208004
61. Ram Gopal Yadav about 58 years S/o Shri Manni Lal Yadav, O/o
CQA (GS) Ashok Path, Kanpur Pin- 208004
62. Ravi Shanker Pandey about 54 years S/o Shri Surya Narayan
Pandey, O/O CQA (GS) Ashok Path, Kanpur Pin-208004
63. Surendra Prakash Trivedi about 59 years Son of Shri Bheem
Shanker, O/O CQA (GS) Ashok Path, Kanpur Pin-208004
64. Ashok Kumar Bharti about 58 years Son of Shri Shriram Bharti 2/g
COA (GS) Ashok Path, Kanpur Pin-208004
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OA No. 205 of 2020
65 Yogendra Bahadur Singh about 51 years Son of Shri Shiv Bahadur
Singh, O/o CQA (GS) Ashok Path, Kanpur Pin- 208004
66 Vikas Srivastava about 44 years Son of Shri P.N.Srivastava, O/o
CQA (GS) Ashok Path, Kanpur Pin-208004
67 Babu Singh Son of Shri Kishan Lal, O/O CQA (GS) Ashok Path,
Kanpur Pin- 208004.
68 Anirudh Kumar about 58 years Son of Shri Pyare Lal, O/0 CQA
(GS) Ashok Path, Kanpur Pin- 208004
69 Ashok Kumar Tripathi about 60 years Son of Shri Girija Shanker,
O/O CQA (GS) Ashok Path, Kanpur Pin- 208004.
70 Satish Kumar Dhusia about 58 years Son of Shri Phool Chandra
Dhusia, O/o CQA (GS) Ashok Path, Kanpur Pin- 208004
71 Ramesh Chand about 55 years Son of Shri Ram Charan, O/o CQA
(GS) Ashok Path, Kanpur Pin- 208004.
72 Seema Devi about 56 years Son of Shri Shiv Prasad Yadav, O/o
CQA (GS) Ashok Path, Kanpur Pin- 208004
73 Neeraj Kumar Bajpai about 58 years Shankar Lal Bajpai, O/o CQA
(GS) Kanpur Pin- 208004 Son of Shri Ashok Path,
74 Ashok Kumar about 59 years Son of Shri Bhai Lal, O/o CQA (GS)
Ashok Path, Kanpur Pin- 208004
75 Rajeev Kumar about 45 years Son of Shri Jhapsiram, 0/0 CQA
(GS) Ashok Path, Kanpur Pin-208004
76 Pankaj Kapoor about 51 years Son of Shri Shyam Narayan Kapoor,
O/o CQA (GS) Ashok Path, Kanpur- Pin-208004
77 Vidhya Sagar Pant about 56 years Chandra Shekher Pant, O/o
CQA (GS) Kanpur Pin- 208004 Son of Shri Ashok Path, Kanpur-
Pin-208004
78 Mahendra Kumar Rai about 54 years Son of Shri dharam Raj Rai,
O/o CQA (GS) Ashok Path, Kanpur Pin- 208004
79 Rameshwar about 58 years Son of Shri Putti Lal, O/o CQA (GS)
Ashok Path, Kanpur Pin-208004
80 Jyoti Kumar Gupta about 47 years Son of Shri Ganesh Gupta, O/o
CQA (GS) Ashok Path, Kanpur Pin- 208004.
81. Raj Kumar Parkhi aged about 47 years Son of Har Narayan Parkhi,
R/o House No. 83/203, Param pura Juhi Colony Kanpur-208014.
82. Surya Prakash Pathak aged about 51 years Son of Satya Prakash
Pathak, R/o 27/39, Roti Godam, Kanpur- 208001
83. Surendra Singh aged about 52 years Son of Jai Ram Singh
Bhadauria, R/o 271-9/96 Indra Puri, Gandhi Gram Kanpur, 208007
Page 5 of 15
OA No. 205 of 2020
84. Arun Kumar Soni aged about 49 years S/o Late Ram Sumiran Soni,
O/o, Controllerate of Quality Assurance (G.S.), Ashok Path,
Kanpur-208004.
. . .Applicants
By Adv: Shri Anil Kumar Singh
VERSUS
1. Union of India through its Secretary, Ministry of Defence
Production, South Block, New Delhi-110011
2. Director General of Quality Assurance, Government of India
Ministry Of Defence Production - DGQA, 308-A, D- 1 Wing; Sena
Bhawan, New Delhi 110011
3. Additional Director General of Quality Assurance, (Stores)
(Administration), Department of Defence Production, Government
of India. Ministry Of Defence, D.H.Q., Post Office, New Delhi
110011
4. Controller, CQA (GS), CQA (T&C), CQA (M), CQA (PP) Kanpur.
. . . Respondents
By Adv: Shri Vinod Mishra
ORDER
The instant OA has been filed under Section 19 of the Administrative Tribunals Act, 1985 seeking relief to quash the impugned orders dated 30.01.2020 and 03.05.2018 passed by respondent No. 4 with all consequential benefits, and to direct the respondents to restraining the respondents from taking coercive action and recovery of HRA from the applicants w.e.f. 07.03.2004 in pursuance of the order dated 30.01.2020, and any other relief which is found deemed fit and to award cost.
2. The brief facts of the case is that the applicants working under the respondents and are the employees of DGQA and have challenged the recovery of HRA since 2004 orders passed by the respondent Nos. 1, 2 and 3. The applicant Nos. 4, 5, 8, 9, 11, 12, 14, 15, 16, 18, 20, 22, 30, 32, 37, 39, 41, 46, 49, 63, 64, 65, 66, 67, 68, 69, 70, 71, 73, 74, 75, 77, 80 and 81 are regular Group „C‟ employees and applicant Nos. 1, 2, 12, 13, 29, 30, 36, 37, 38, 41, 42, 44, 46, 48, 52, 56, 63, 65, 66, 70, 72, 74, 75, 76 Page 6 of 15 OA No. 205 of 2020 and 81 are going to retire very soon and applicants Nos. 54, 55, 57, 58 and 71 have already retired from service. The MoD ID No. 687/04/D (Civ) dated 20.07.2004 a clarification was sought related to compulsory providing Government accommodation to staff / officials would be newly transferred / appointed officials and not to those, who were in position before the issue of circular. In the MoD letter No. 81397/DGQA/ ADM/RMD (CW) dated 20.08.2004 it is very clearly mentioned "that the staff already getting HRA till this date should not be asked to obtain No Accommodation Certificate (NAC)", means they were allowed to avail HRA without NAC. Respondent No. 1 in exercise of the power as conferred to the proviso of Article 309 of the Constitution of India with the approval from the President of India got enacted the rules by name and nomenclature of Rules for allotment of residential accommodation of civilians serving in Directorate General of Quality Assurance Establishments at station other than Delhi and New Delhi Area 1995. A specific provision has been made for the purpose of providing the facility of residence to the respective defence civilian in this regard.
3. Subsequently, on 13.06.2005 the respondents thereafter issued a circular dated 20.08.2004 and issue of NAC as a pre-requisite for drawl of HRA was examined in consultation with Ministry of Defence and Directorate of Estate, Ministry of Urban Development and it was decided that till the procedure for regulation of grant of NAC is finalized the HRA shall be paid to all employees who are not in possession of Government accommodation till further orders. The applicant were getting HRA w.e.f the date of appointment to 31.10.2019 without NAC and after that with NAC in the light of the circular dated 13.06.2005. In the meantime the respondents issued a circular dated 16.03.2018 providing the guidelines relatable to allotment of entitled Page 7 of 15 OA No. 205 of 2020 accommodation of grant of HRA to civilian employees in DGQA. However, it appears that on 03.05.2018 the matter with respect to grant of HRA came up for consideration before the respondents pursuant whereto on 03.05.2018 a letter was issued bearing No. A/97401/ Compliant/ JJ/DGQA (Vig Cell) pc whereby wherein under the issue was being examined with respect to certain cases involving drawl of HRA by DGQA officers in contravention of the existing guidelines on the subject, so the Secretary had directed to conduct detailed investigation and recover forthwith the HRA in such cases where same has been drawn by / granted to the officers of DGQA as stipulated in para 2 of the said guidelines. On 06.09.2018 the respondents issue a letter whereby under the office note dated 13.06.2005 was cancelled and it was mentioned that the grant of HRA to DGQA civilian employees will be made in accordance with SRO 31 and is effective from the date of publication of the Gazette Notification dated 07.03.2004 and on the next date 07.09.20108 an office note was issued with regard to investigation into erroneous grant of recovery of non- entitled house rent allowance claim of officers of HQ DGQA, whereby under recovery was directed to be made from the civilian employees.
4. On 07.01.2019 the respondents again issued an office note whereby recovery was ordered. An on 05.03.2019 an office order was issued by the respondent No. 1 whereby it was mentioned that the matter was examined by the Government of India, Ministry of Finance, Department of Expenditure in supersession of the OM issued prior to it and in order to simplify the procedure relating to grant of HRA to Central Government Employees, President of India in consultation with the Ministry of Housing and Urban Affairs and the Staff Side of the National Council (JCM) was pleased to decide that the conditions of applying for government accommodation and furnishing of NAC by Central Page 8 of 15 OA No. 205 of 2020 Government employees to become eligible for HRA are dispensed with for all places in respect of General Pool Residential Accommodation controlled by Directorate of Estates. On 09.08.2019 an office note was issued whereby the guidelines wherein establishment was given final reminder by respective dates to furnish report, in case they fail to submit requisite report by the due date, it will be presumed that all the employees in the establishment concerned were erroneously granted HRA and therefore liable for recovery. On 26.09.2019 another office note was issued whereby investigation into erroneous grant and recovery of non- entitled house rent allowance claim of officers of HQ DGQA was discussed and data / reports from the establishment so sought till 04.10.2019. On 24.10.2019 the Director General of Ordnance Factories, issued a letter to all their offices with respect to dispensation of conditions of applying Government Accommodation and furnishing of NAC for admissibility of HRA. A meeting was held where in two phases recoveries were ordered which are as under:
"(i) Phase I: Recovery of HRA granted without the NAC after issue of DG, DGQA‟s initial letter dated 03 May, 2018 under reference at para 1 (b) above.
(ii) Phase II:- Recovery of HRA granted without the NAC for the period between 07 March, 2004 to 03 May, 2018."
5. On 31.01.2020 the respondent No. 5 proceeded to pass an order for recovery from retrospective effect from 07.03.2004 which is illegitimate as the applicants have been given HRA without NAC due to respondents circular of non submission of NAC for getting HRA and it is not their case that they have got dual benefits of both HRA as well as Government accommodation. They have used HRA for the purpose of obtaining private accommodation and have already spent the amount and their claim for HRA have been cleared all these years by the respondents authorities only in which there is no role of the applicants. Hence, no Page 9 of 15 OA No. 205 of 2020 recoveries can be made from them. Hence, their OA should be allowed and the relief claimed should be granted.
6. On notice the respondents have filed their counter affidavit where the basic facts of the case are not denied, but the respondents claimed that as the official accommodation was available it was wrong to give HRA to the applicants without obtaining NAC and hence, the irregular payments need to be recovered, and so their action is correct.
7. Rejoinder has been filed by the applicant wherein they have reiterated their stand as in the OA.
8. The case came up for final hearing on 16.01.2024. Shri Rohit Singh holding brief of Shri Anil Kumar Singh, learned counsel for the applicants and Shri Vinod Mishra, learned counsel for the respondents were present and heard. I have gone through the records carefully and considered the rival contentions.
9. From the averments of both the parties it is very evident that the case of the applicants is squarely covered by the other two cases which have been cited as OA 191/2020 dated 22.12.2023 and OA No. 192/2020 dated 22.12.2023.
10. From the record, it is evident that the authorities vide their impugned orders dated 30.01.2020 and 03.05.2018 have passed recovery in the following two phases:-
"(i) Phase I:- Recovery of HRA granted without the NAC after issue of DG, DGQA letter No. A/97401/Compliant/JJ/DGQA (Vig. Cell) PC dt.
03. May 2018.
Page 10 of 15 OA No. 205 of 2020
(ii) Phase II:- Recovery of HRA granted without the NAC for the period before issue of DGQA letter dated 03 May 2018 i.e. the period between 07 Mar 2004 to 03 May 2018.
In Phase I HRA will be recovered as per schedule given below as agreed by all HOEs:
S No Recovery of HRAA Paid for To be recovered in the period month of From To
1. 03 May 2018 30 June 2018 Mar 2020
2. 01 Jul 2018 31 Aug 2018 April 2020
3. 01 Sep 2018 31 Oct 2018 May 2020
4. 01 Nov 2018 31 Dec 2018 Jun 2020
5. 01 Jan 2019 28 Feb 2019 Jul 2020
6. 01 Mar 2019 30 Apr 2019 Aug 2020
7. 01 May 2019 30 Jun 2019 Sep 2020
8. 01 Jul 2019 31 Aug 2019 Oct 2020
9. 01 Sep 2019 31 Oct 2019 Nov 2020
11. Further, from the record it is evident that vide their letter dated 13.06.2005, the authorities had ordered in the following manner:-
"No. 81397/DGQA/ADM/RMD(CW) 13 June 2005
MINISTRY OF DEFENCE
DGQA/ADM/RMD (CW)
PAYMENT OF HRA TO CIVILIAN EMPLOYEES OF DGQA
1. In continuation to this office letter no. 81397/DGQA/ADM/RMD/ CW dated 20 August 2004, the issue of "No accommodation" certificate as a pre-requisite for drawal of HRA has been examined in consultation with Ministry of Defence and Directorate of Estate, Ministry of Urban Development.
2. It has been decided that till the procedure for regulation of grant of "No accommodation" certificate is finalized. HRA shall be paid to all employees who are not in possession of Government accommodation till further orders. Those denied HRA in the intervening period from issue of order till date of this clarification shall also be paid HRA denied on the ground of not submitting "No accommodation" certificate.
3. The relevant provision of allotment Rule promulgated in SRO 1E, SRO 31 and letter No. 81397/DGQA/ADM/RMD (CW) dated 20 Aug 2004 shall be held in abeyance till further orders on this subject."
Simple perusal of this clearly shows that the authorities themselves decided that till the procedure of regulation for grant of No accommodation certificate is finalized; HRA shall be paid to all employees who have not been in possession of govt. accommodation tll further orders. So, it is clear that by this order, as the procedure for grant of No Accommodation certificate was yet to be finalized the authority had themselves voluntarily decided that HRA shall be paid to the employees who are not in possession of government accommodation without any NAC. The Page 11 of 15 OA No. 205 of 2020 authorities have also placed another order dated 06.10.2008 (Annexure CA-1) which reads following:-
"MINISTRY OF DEFENCE dated 06.10.2008
DGQA/ADM/RMD (CW)
PAYMENT OF HRA TO CIVILIAN EMPLOYEES OF DGQA
1. Further to this office note of even number dated 13 June 2005.
2. Above quoted note withholding implementation of SRO 31 and relevant provision of grant of HRA without „NAC‟ is hereby cancelled. All establishments under your administrative control may be informed accordingly for compliance.
3. Ministry of Defence and LA (Defence) have been consulted. Grant of HRA will be made in accordance with SRO 31."
Simple reading of the order shows that earlier order of 13.06.2005 where grant of HRA without NAC was possible, was cancelled and all establishments under the administrative control of respondents were directed and informed for compliance. But, why this order was not implemented and complied by Pay Disbursing Officers is not understandable. Although in their counter reply the respondents could claim on the applicants that the applicants were to inform the Pay Disbursing Authority of their status with respect to application for Govt. accommodation at their posting station i.e. whether or not applied or whether NAC pending or received or rejected etc. They conclude that the applicants have misled/concealed the material information but it is hard to believe as the applicants themselves were not the Pay Disbursing Officer and who were directed by the authorities‟ order dated 06.10.2008 no. A/81397/DGQA/Adm/RMD/(CW) to be complied by SRO 31 and regular provision where NAC was essential for such employees who were not given government accommodation to draw HRA. Why the Pay Disbursing Authorities did not scrutinize this and what action the authorities have taken against their Pay Disbursing Officers before putting all blame on the junior officials. And in no organization Pay Disbursing officers would Page 12 of 15 OA No. 205 of 2020 generally allow such lapses without any scrutiny while disbursing any pay or emolument. The applicants have vehemently denied the paragraph 35 in rejoinder and reiterate that it was the duty of the Pay Disbursing Officer to implement the SRO and as it has not been insisted and implemented, they cannot be held accountable for the authorities‟ lapses. As the respondents have failed to substantiate their contentions that the applicants are guilty of furnishing any incorrect information/ misrepresentation/ fraud which had led to the concerned competent authority to commit mistake of making higher payments to the employees.
12. Furthermore upto 06.10.2008 all such irregular drawl of HRA without any NAC Production was covered by the respondents‟ own order dated 13.05.2005 as discussed above. Ordering any recovery for the said period is highly irregular and whimsical. And period subsequent to 06.10.2008 the Pay Disbursing Authorities were responsible for mistake in not implementing SRO 31 in spirit, and hence holding applicants being responsible for the same at this juncture retrospectively may not be justified. Hence, I have no doubt that the Hon'ble Apex Court judgment in the case of State of Punjab vs. Rafiq Masih and others (2015) 4 SCC 334 is very much relevant in the case wherein the Hon‟ble Supreme Court had clearly mentioned following:-
"18. It is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:-
(i) Recovery from the employees belonging to Class III and Class service (or Group C and Group D service).
(ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery.
(iii) Recovery from the employees, when the excess payment has been made for a period in excess of five years,s before the order of recovery is issued.Page 13 of 15 OA No. 205 of 2020
(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.
(v) In any other case, where the court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer‟s right to recover."
13. The applicants have further cited the case of Thomas Daniel vs. State of Kerala & others of the Hon‟ble Supreme Court in Civil Appeal No. 7115 of 2010 dated 02.05.2022 wherein the court relied on the judgment of Rafiq Masih and other catena of judgments and granted relief.
14. From the facts of the instant case, it is clear that House Rent Allowance has been paid in violation of the Rule which require that the applicants should have given "No Accommodation" certificate and the fact is not controverted that none of the applicants were given any government accommodation and that they used HRA for obtaining private housing for themselves. So, it is not the case of double payments although the payments were irregular in nature as it was without the production of NAC, but as the housing is a fundamental requirement for survival and well- being and service condition provided for proper housing and HRA is an important service condition, service for efficiency and integrity in work, and as the applicants have utilized the amounts given as HRA for procuring private housing for themselves. Hence, post facto recovery order retrospectively for their own mistakes by the authorities; and laxity and tardy implementation of their policies and circulars on housing by their own Pay Disbursing Authorities, as is evident from the issuance of the order dated 13.06.2005 where no accommodation certificate procedure dispensed with and even after the same was nullified by their own order dated 26.10.2008, cannot be justified. The Pay Disbursing Authorities did not enforce the said order till date 2018. Hence, I have no doubt in my Page 14 of 15 OA No. 205 of 2020 mind that this case is covered by the Hon'ble Supreme Court order in the case of State of Punjab vs. Rafiq Masih (supra) and the authorities were not correct in passing the impugned order and going ahead with recovery; without giving notice and without hearing the applicant and without applying their minds, and without considering and appreciating the role of Pay Disbursing Authorities.
15. Considering the above mentioned facts and circumstances, I pass the following orders:-
"This Original Application is allowed and as far as the applicants are concerned, impugned orders dated 30.01.2020 and 03.05.2018 are set aside and the respondents are restrained from taking any coercive action of recovery of past HRA which already have been paid and utilized by the applicants. The Authorities may implement their policy prospectively, as they are already doing."
16. All associated M.As. also stand disposed of accordingly. No costs.
(Dr. Sanjiv Kumar) Member (A) /Piyush/ Page 15 of 15