Central Administrative Tribunal - Chandigarh
Unknown vs Union Of India on 8 October, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
i)O.A. NO.928-PB of 2009 &
ii)O.A.No.929-PB of 2009
Chandigarh, this the 8th day of October, 2010
CORAM:HONBLE MR.JUSTICE S.D.ANAND, MEMBER(J)
HONBLE SMT. PROMILLA ISSAR, MEMBER(A)
i)O.A. NO.928-PB of 2009:
Ashok Kumar Arora, aged about 50 years, son of Shri Hans Raj, working as Manager (Heat Treatment), Central Tool Room, Ludhiana, Punjab. Presently resident of House No.728-C, Model Town Extension, Dugri Road, Near Grand Marian Hotel, Ludhiana.
APPLICANT
BY ADVOCATE: SHRI R.K.SHARMA
VERSUS
1. Union of India, through the Secretary, Government of India, Ministry of Micro Small and Medium Enterprises (MSME), Nirman Bhawan, 7th Floor, Maulana Azad Road, New Delhi-110011
2. General Manager, Central Tool Room, A-5, Focal Point, Ludhiana-141010
3. Assistant Manager (Administration & Accounts), HOD Administration, Central Tool Room, A-5, Focal Point, Ludhiana-141010
RESPONDENTS
BY ADVOCATE: SHRI V.G.DOGRA
ii)O.A. NO.929-PB of 2009:
Kamal Rai Joshi, aged about 58 years, son of Shri Govardhan Lal Joshi, working as Manager (Training), Central Tool Room, Ludhiana, Punjab. Presently resident of House No.236, Janta Colony, Adjoining Dugri Phase II, Ludhiana.
APPLICANT
BY ADVOCATE: SHRI R.K.SHARMA
VERSUS
1. Union of India, through the Secretary, Government of India, Ministry of Micro Small and Medium Enterprises (MSME), Nirman Bhawan, 7th Floor, Maulana Azad Road, New Delhi-110011
2. General Manager, Central Tool Room, A-5, Focal Point, Ludhiana-141010
3. Assistant Manager (Administration & Accounts), HOD Administration, Central Tool Room, A-5, Focal Point, Ludhiana-141010
RESPONDENTS
BY ADVOCATE: SHRI V.G.DOGRA
ORDER
HONBLE MR.JUSTICE S.D.ANAND, MEMBER(J):-
The common-ness of pleadings and inter-related averments justify joint disposal of these two O.As. It is also common ground otherwise that there is absolute similarity of facts and points in issue in these two O.As. and, therefore, these are being disposed of by this common order. For purposes of convenience, the facts have been extracted from O.A. No.928-PB of 2009, titled Ashok Kumar Arora vs. Union of India & others.
Conceded facts in the first instance:-
2. The applicant, who had been initially appointed as a Foreman in the year 1981 and came to be promoted thereafter to various hierarchical levels, had been, in due course, appointed to the post of Assistant Manager (Heat Treatment), vide appointment order Annexure R-1, dated 30.12.1995/ 1.1.1996. Para 1 thereof, which is relevant in the context of this case, is extracted hereunder for facility of reference:-
Sh.A.K.Arora is offered a post of Assistant Manager (Heat Treatment) on temporary basis in the pay scale of Rs.2200-75-2800-100-4000. His pay shall be fixed as per pay fixation rules as applicable to internal candidates of CTR. He will be entitled to draw dearness and other allowances according to the rules. He will be provided accommodation in C.T.R. Housing Complex and the deduction of House Rent will be made as per rules. In case of non-availability of accommodation in the CTR Housing Complex, he will be paid HRA as admissible under rules.
3. In the year 1995, the applicant applied for allotment of official residential accommodation in the official colony, established by the respondents at its premises i.e. CTR Complex, Dugri. A first-floor Flat No.3247 had been vacated by one Shri D.Ranjan around that time. However, the applicant asked for allotment of a ground-floor flat in view of the fact that his wife was not keeping good health and was suffering from certain bone disease. The competent authority did not accept the request made by the applicant and insisted upon the allotment of first-floor flat aforementioned, to the applicant who declined it. The respondents also made him to give in writing that he will not claim accommodation in the CTR Complex in future.
4. In the year 1998, the respondents allotted some other accommodation to the applicant, situated in the CTR Campus itself but not located in the residential colony. As the applicant declined to accept that as well, the accommodation came to be allotted to another employee who continues to be in possession thereof.
5. In March 2003, the applicant constructed a house of his own with the help of a bank loan. On completion thereof, the applicant shifted to the house aforementioned.
6. In April 2009, the applicant was in receipt of order dated 2.4.2009 vide which first floor Flat No.3247 aforementioned (again) stood allotted to him. It is that allotment which has been declined by the applicant. The respondents informed him, vide communication dated 2.5.2009 (Annexure A-2), that he would not be entitled to the House Rent Allowance in view of the fact that he had refused to take possession of the flat allotted to him.
7. The present grievance of the applicant is qua denial of HRA to him on the premise that he has refused to occupy an allotted Government accommodation in terms whereof he could claim entitlement to HRA only if a Government accommodation was allotted to him.
The notion furnished by the applicant was to the effect that he is in occupation of his own house and that he has not entered into possession of the allotted accommodation so far, notwithstanding the fact that Respondent No.2 continued to hold the stance that he would not be entitled to HRA.
8. In the course of the counter, the respondents have taken a categorical stance where it is averred that the applicant could not have declined allotment of government accommodation in view of the terms of the appointment letter which, if violated, he cannot validly raise a plea for disbursement of the HRA.
9. We have heard Shri R.K.Sharma, Advocate for the applicants in both these O.As and Shri V.G.Dogra, learned counsel for respondents. We have also examined the pleadings as well as the documents available on record.
10. The learned counsel, appearing on behalf of the applicant, is not in a position to deny that the appointment offered to the applicant was subject to the terms and conditions detailed in the appointment letter, Annexure R-1. It is apparent, from a perusal of the appointment letter, that the appointing authority had categorically announced to the appointee i.e. the applicant in this case, that he shall be allotted government accommodation and that he will be paid HRA, as admissible under the rules, in case of non-availability of accommodation in the CTR Housing Complex. It is that documentation which would govern the relationship between the applicant and the respondents.
11. The contingency, aforementioned, came to be considered by the Government of India (in the Ministry of Urban Development, Directorate of Estates) and the opinion formed and communicated vide Annexure R-2 dated 14.11.2007 was that the Government servants eligible for Govt. accommodation will be paid HRA only if they have applied for and have been denied Govt. accommodation. This position was reiterated by the Government of India (in the Ministry of Small Scale Industries) vide communication dated 12.5.2005 (Annexure R-3) wherein it was indicated the House Rent Allowance (HRA) is admissible only if the Govt. have no accommodation to provide. Leaving nothing to doubt, that communication further clarified things in the concluding para thereof which is extracted hereunder:-
4. Therefore, the employees of the Tool Room, who refuse to take possession of the flats, allotted to them and prefer to live in rented accommodation or in their own houses, or surrender the Tool Rooms accommodation, will not be eligible to draw H.R.A. Only the employees who have not been provided the accommodation by the employer (Tool Room) will continue to draw HRA till the quarters are allotted. (bold & italics for emphasis)
12. By the very nature of things, every financial claim made by the employee has to be relatable to certain enforceable rules/ instructions. That is what the administrative dispensation is about. It would be a very unenviable and unacceptable scenario where the employees of an organization may decline to move into government accommodation offered to them and may claim compulsive payment of HRA. In the matter of appreciation of this eventuality, we cannot be unmindful of the fact that the government have repeatedly clarified the position by stating that employees refusing government accommodation would not be entitled to claim House Rent Allowance. The appointment letter issued in favour of the applicant, as already noticed, also does not buttress the plea raised by the applicant herein.
13. We, thus, have no reservations in declining these O.As. which stand disposed of accordingly.
14. A copy of this order be placed upon the connected file.
(PROMILLA ISSAR) (JUSTICE S.D.ANAND)
MEMBER(A) MEMBER(J)
Dated: October 8 , 2010
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11. The payment of House Rent Allowance to the Central Government employees is governed under Rule 4 of the House Rent Allowance Rules as well as the instructions issued by the Government of India from time to time. The relevant portions of Rule 4 are reproduced below:-
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 allowance 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 But where Government quarters are available for the staff of specified Department 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.
12. The Government of India, Ministry of Urban Development, Directorate of Estate, in suppression of the earlier OM dated 9.9.1988, took a policy decision vide O.M. dated 27.6.2001 with concurrence of the Ministry of Finance, on a review of the demand and availability of General pool Accommodation, controlled by the Directorate of Estate in Delhi and various other stations where government accommodation was surplus and it was decided that the Government servants who are eligible for allotment of accommodation but who do not submit applications for such accommodation or those who after submitting such applications refuse to accept the accommodation offered/ allotted or those who after having accepted such accommodation surrender it, may be paid HRA, if otherwise admissible, without obtaining No Accommodation Certificate from the Directorate of Estate or its Regional Office, as the case may be, in respect of all types of accommodation at Delhi, Mumbai, Chennai, Chandigarh, Bangalore, Indore. Further provisions made with regard to Government servants who on submitting applications refuse to accept the accommodation offered/ allotted and those who after submitting application for allotment succeed in making their own arrangement for residential accommodation, in Paras 2 & 3 of the said O.M. were to the following effect:-
2.
3.
Thereafter, specific instructions were issued by the Government of India in case of Kolkata specifically as it was observed that HRA was being paid to the Government servants by all Central Government Departments there inspite of orders of the government to the contrary and it was directed not to pay the House Rent Allowance to the Government servants until No Accommodation Certificate is obtained and the HRA already paid to the Government servants from the date of issue of the previous OM dated 27.6.2001 onwards was ordered to be recovered
13. The grant of H.R.A. to the Central Government employees came to be further considered by the Government of India (in the Ministry of Urban Development, Directorate of Estates) vide O.M. dated 14.11.2007 (Annexure R-2) in which stipulation contained in HRA Rule 4(a)(i) issued by the Ministry of Finance vide O.M. dated 27.11.1965 was reiterated in the following terms:-
that the Government servants eligible for Govt. accommodation will be paid HRA only if they have applied for and have been denied Govt. accommodation. In Para 2 of the said O.M., it was further provided as under:-
2.
14. Even prior to issuance of the above O.M. dated 14.11.2007, clarificatory instructions had been issued by the office of the Development Commissioner Small Scale Industries, Ministry of Small Scale Industries vide communication dated 12.5.2005 (Annexure R-3) wherein it was indicated the House Rent Allowance (HRA) is admissible only if the Govt. have no accommodation to provide. Leaving nothing to doubt, that communication further clarified things in the concluding para thereof which is extracted hereunder:-
4. Therefore, the employees of the Tool Room, who refuse to take possession of the flats, allotted to them and prefer to live in rented accommodation or in their own houses, or surrender the Tool Rooms accommodation, will not be eligible to draw H.R.A. Only the employees who have not been provided the accommodation by the employer (Tool Room) will continue to draw HRA till the quarters are allotted. (bold & italics for emphasis)
15. On the basis of the above instructions it has been pleaded and argued on behalf of the respondents that non-payment of HRA to the applicant is justified. It is further clarified that out of the eleve house constructed by the Central Tool Room, Ludhiana, three houses are lying vacant because no eligible person, including the applicant is prepared to occupy these houses. Hence, the senior most persons, including the applicant, are not being paid the HRA. Had someone junior to the applicant become eligible for allotment of the vacant accommodation, there could be a justification for payment of HRA to the applicant but the crux of the matter is that the government accommodation cannot be kept vacant and surplus. Therefore, O.A. deserves to be dismissed.
16. It could not be controverted on behalf of the applicant that the Central Government rules and orders are applicable to the employees of the respondent Central Tool Room, Ludhiana. On perusal of the substantive Rule 4(a)(i) of the HRA Rules and the instructions of the Govt. of India issued from time to time, it is amply clear that the payment of HRA to the employees is contingent upon the demand and availability of the accommodation and thereby it can be easily inferred that if there is sufficient demand for the government accommodation at a particular station, the HRA can be paid to the government employees without insisting upon No Accommodation Certificate but where there is lesser demand and vacant and surplus government accommodation is available, the Government/ the concerned department, as a matter of policy decide not to pay HRA in case an employee does not accept allotment of Government accommodation. The Courts/ Tribunals cannot interfere in such a policy decision and so in the present case.
17. Further. by the very nature of thins, every financial claim made by the employee has to be relatable to certain enforceable rules/ instructions. That is what the administrative dispensation is about. It would be very much uncommon and unacceptable too scenario where the employees of an organization may decline to move into government accommodation offered to them and may claim compulsive payment of HRA. Even if that broad angle is not enforced, we cannot be unmindful of the fact that the government have repeatedly clarified the position by stating that employees refusing government accommodation would not be entitled to claim House Rent Allowance. In the present case, the appointment letter issued in favour of the applicant, as already noticed, also does not buttress the plea raised by the applicant herein.
18. We, thus, have no reservations in declining these O.As. which stand disposed of accordingly.
(PROMILLA ISSAR) (JUSTICE S.D.ANAND)
MEMBER(A) MEMBER(J)
Dated: October 8 , 2010
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16
(OA No.928-PB/09 & 929-PB/09)