Central Administrative Tribunal - Kolkata
Subhra Jyoti Choudhury vs Special Bureau on 21 March, 2022
1 O.A/B 50/1 68/2020 CENTRAL ADMINISTRATIVE TRIBUNAL KOLKATA BENCH, KOLKATA O.A/350/1362/2020 Date of Order? Qf 3< 22 Coram: Hon'ble Ms. Bidisha Banerjee, Judicial Member Subhra Jyoti Choudhury, son of Sri Satindra Lal Choudhury, aged about 60 years, Retired Field Officer (Tele), Special Bureau, government of India, Hathikanda, Haringhata, Nadia, West Bengal, residing at Flat Ne, SB at "Gitanjall Apartment", 3°? Floor Back Portion of AF 217/17, Rabindra Pally, Krishnapur, Kolkata -- FOOLOL and permanently resi ding at AD-24, Flat-5, Sector], Salt Lake, Kolkata -- 7Q00064. APPLICANT 1. Union Of India, through The Secretary (R}, Cabinet Secretariat, Govt. of Tndia, Room No. 1001, Bl Wing, 10th Floor, Pt. Deendayal Antyedaya Bhavan, CQO Complex, Lodhi Road, New Defhi- 110008. 2. The Additional Secretary (Administration), Cabmet . Seeretariat, Govt.Of India, Headquarters, New Delhi- 110008. 38. The Under Secretary (Admn.A), Cabinet Secretariat, Govt. of India, Headquarters, New Delhi- 110008. 4, The Director (Admn. 1), Cabinet Secretariat, Govt. of India, Headquarters, New Delhi-110008. § Commissioner G22), Special Bureau, Govt. of India, 816, Shanti Pally, East Kolkata Township Project, Kolkata: 700039. . 6 The Deputy Secretary (Tele), Special Bureau, Hathikanda, P.O: Mohanpur, District: Nadia, Pin- FALSAG, 2 CLAIS BOTS 6222020 7. The Assistant Commissioner (Tele)/Administration, Special Bureau, Hathikanda, P.O: Mohanpur, District: Nacia, Pin- 741246, --Raspondents For The Applicant(s)! Mr. B. Chatterjee, counsel For The Respondent(s): Ms, R. 8. Dev, counsel Ms. Bidisha Banerjee, Member (J):
Heard Ld. counsel for parties.
Po 2, ° This application has been preferred to seek the following reliefs:
Kern. | | =| "taj An order quashing and/or setting aside the impugned decision bearing File No. 22011/2/2017-Pol. iN (Pt.) dated 17.05.2018 issued by Deputy Director of Estates (Policy), Ministry of Housing & Urban Affairs, Directorate of Estates, Government of India, {b} An order quashing and/or setting aside the Office Mermorandum dated 12.10.2018 being No. 14/2/2018-Admn 1-5853 (Annexure A-5) issued by Under Secretary (Admn.}, Government of india, Cabinet Secretariat, {co} An order quashing and/or setting aside the Memorandum dated 13.03.2018 {Annexure A?! and thereby directing the applicant to immediately accept possession of the Government Quarter at Special Bureau, Hathikanda.
{d} An order holding that the actions on the part of the responder authorities forcing the applicant to accept the allotted Government Accommeadation/Quarter as well as making allotment unilaterally and stoppage of House Rent Allowance due to non-acceptance of allotted Quarter are had in law, arbitrary and violation of rights guaranteed under Article 14 of the Constitution of India.
fe} An order quashing and/or setting aside the impugned memorandum dated 13" July, 2020-at Annexure A-10.
(f}An order directing the respondent authorities to grant and release the House Rant Allowance from the date it was stopped along with Arrears with interest and all consequential benefits thereof.
igjAn order directing the official respondents to produce/cause production of all records relating to the subject matter of the case.
(th) Any other order or orders as this Tribunal may deem fit and proper"
EQ > 7 ; ;
SS : 3 : OA/350/ 1368/2020
3. The grievance of the applicant in a nutshell is that, the respondents authorities are forcing the applicant. to aceept the allotted Government Quarter making allotment unilaterally and stopped House Rent Allowance due to now-acceptance of allotted Government Quarter which is alleged to be bad in law, arbitrary and in violation of the rights -- guaranteed under Article 14 of the Constitution of India as well as VaArlous didicial pronouncements of this Tribunal affirmed by higher fora. He has cited the instances of one Kalyan Mukhopadhyay, RN. Banerjee and P. Parui and has claimed identical orders.
He would refer to the following decisions;
{} Om Prakash Sharma v UOT, rendered by this Tribunal in O.A 1188/2010, upheld in WPCT 1121/2011 where the following judgement was .
passed "Short question involved in this writ petition is whether the respondents would be 'entitled to house rent allowance when 'Na Accommodation" Certificates are not produced.
The learned Tribunal held that the respondents were entitied to. such benefit and tie petitioners. herein were nat entitled to. force them ta stay in the Gaverament accommodation considering the facts and circumstances of this case. Being aggrieved, the Uninn of india has come up with this application.
Mr. Dilip Kumar Chatterjee, leamed Counsel appearing for the petitioners, has drawn our attention to the Apex Court decision in the case of Director, Central Plantation Crops Research institute, Kesaragod, and Ors. Vs. M. Purushothaman and Ors, reported in AIR 1994 SC 2541. According to Mr. Chatterjee, the respondents were not entitled to house rent allowance when Government accemmodatians were available. .
Opposing the application, Mr. P.C. Das, learned Counsel for the respondents, contends that it is not a case where the respondents refused to stay in. the Government aecenumodation. The respendents were enjoying Government accommodation after being allotted to them. During their stay at the Government accommodation they applied far Joan both to the petitioners, being the eniployer, as well as to the Sank and ultimately arranged their own accommodation, They received financial asaistance from the Union of India and/or the Financial Institutions. After arranging their own accommodation Mey left the Government accommodation and thus were entitled to house rent cllowarnce, which the petitioners denied.
4 O.A/SEU/ 1382/2020 We have considered the rival contentions, We have considered the decision cited at the bar. The Apex Court considered a case where accommodations were offered to the Government employees, wha, on one pretest or the other, refused te accupy such accomodations, resulting the accommodations being Kept vacant, in the instant case, the respondents did not have cecommodation of their own. They applied for Government accommodation, which was given ta them. They occupied and enjayed the same so long they could nat arrange accommodation of their own. The Union of india themselves granted assistance to same of the respondents ¢ whereas ethers ofteined financial assistance from Financial institutions and arranged accommodation of their awn and then left the Government accommodation. if is net the case of the petitioners that the accommodations are still vacant, in view of the respondents vacating those accammodations. Hence, we do not see any reason as to why they should be deprived of house rent allowance wheo their colleagues are enjoying accommodation of their awn and getting such financial assistance. The Tribunal approached the problem ina right direction, which does not deserve any interference by this Court, WRCT 11d of 2011 fails andis hereby dismissed withaut aey order as to costs."
Order dated 14.8.13 passed by this Tribunal in O.As 8738/2012, 87-2012, 612/2012, 872/2012, 875/2012 affirmed in WPCT 4738/2013, where Hon'ble High Court observed as under;
"The fearned Counsel further states that the Petitoners have carried out @ part of the order af the Tribunal and, therefore, have issued 'Ne Accommodation Certificate' in respect of 64 emplayees fram 19th May, 2014 and have directed the release of House Rent Allowance from various dates.
Accarding to the learned Counsel, this exercise was, in fact, conducted in August, 2012 and, therefore, the Tribunal was not right in directing any further exercise to be conducted for ascertaining whether accommodation, though vacant, was pot offered ta other employees in compliance with para 4(b}) ar 5 of the Office Memorandum, dated 14th November, 2007.
There is no material befere us to indicate that this procedure was undertaken after the impugned order was passed. There is also no material on record to show that it was mandatory for the employees ta five in the Government quarters. The appointment letters of these employees have been produced for our perusal and in fone af these appointment fetters does it appear that the employees are compulsorily required ta occupy Government accommodatian.
in.our view, the Tribunal has not committed any error of low much less-an error of law apparent on the face of the record by issuing the aferesald directions. in fact, it has proceeded on the basis ther its earlier decision had been upheld by the High Court and the foter by the Supreme Court. The Tribunal was of the view that despite the quurters being surrendered, there was no material fo show that the guarters were, in foct, offered to other employees and it is in these circumstances, it has passed the aforesaid directions.
the THbunel as usheld up to the Supreme Court in respect of all employees and instead. required ench employee to approach the Tribunal before securing Nause Rent Allowance. it is welhsetded that every employee need not rush te the Court for redressal of the some claim, as is granted to other empiayees, simiferly situated. by Courts. It is expected that the employer implements the decision af the Court In respect af oll eniployees and nat just thase whe have the wherewdthal ta apercach the Court: in the case of State of Karnataka and Others VS. 0. iolithe, reported in -
(2006) 2 SCC 747. the Supreme Court has observed thet J is not necessary for each individual to approach the Court when one persar similarly situated bos been granted the relief by the Court. The employer is expected to apply the sane logic in respect of all other employees to grant them relief, This would gonly with greater force when Government is the employer as itis supposedly a model employer.
in aur opinion, the impugned order is correct and in consonance with the decision of the Division Bench of this Court in WPCT No.d11 of 2021, which has been confirmed by the Supreme Court, The criticism of the learned Counsel for the Petitioners wgainat the order is unfounded and baseless. We see no reason to interfere with the order.
The writ petitions are dismissed with no order as to costs. ° mu) Order in O.A 8038/2010, where an employse of Govt. of India Press Santragabi working in the post of Copy Holder was reaiding in Govt. quarters earlier but subsequently he purchased a flat taking loan and PRER ted the quarter on 16.54.2009. He claimed HRA from that date but the respondent authorities declined him HRA on the ground that those who after submitting application for accommodation refuse fo accept the accommodation offered/allotterl or who after having aecepted such accommedation surrender it will net be paid HRA without obtaining "Na Accommodation Certificate" form the competent authority. He has been denied HRA on the eround of non production of "No Accommodation.
Certil of 2010 (Om Prakash Sharma & Ors. Vs, UOL & Ors f(OFB) the same jgane was elaborately considered and decided. The O.A was allowed with a direction on the respondents to grant HRA wef the date when he vacated the and quarter earlier allotted to him and Payment of arrears within 3 months from the date of communication of the order.
bpp, 8 OLAS OT36 2/2026
iv) Order in OA/461/2010, where the appheant, a Section Engineer at the headquarters of S. EL Rly at Garden Reach on his transfer to Kharagpur Division at Uluberia, who was not provided with any Quarter, claimed HRA. He was informed by a meme dated 27.8.09 to apply for Type IV quarter which was lying vacant. He made a further representation for grant of HRA on 28.2.2010 on which the concerned ADEE observed that he should apply for quarter.
This Tribunal considered that "the question is whether the respondents can camipal the applicant to aceupy a quarter at his place of posting, No rules has been shown to us to establish that applying for railway quarter is compulsory for every railway employee and if he does not apply he is nat entitled to HRA, Now a days housing problem is very acute and for the benefit of employees. Railway or govt. quarters are previded subject to availability the rival contentions.
On the other hand, Govt. as a policy decision is enconraging employees to own their house and for the purpose scheme of housing loan is there both hy Govt. and by other agencies. When an employee has got his own house, he will naturally be reluctant to apply for quarter as in cannot be made compulsary. Unless and until there is statutery rule that every employee has to apply for quarter and if allotted he is to reside in the quarter leaving aside his awn house, the respondents cannot deny payment of HRA to the applicant. It is also net the case of the respondents that for not staying in quarter, the official work of the applicant is being hampered. Accordingly, we hold that the applicant is entitled to HRA from the date he was not accupying any Govt. quarter. In the result, the OLA is allowed."
wd O.AMSG/ SOR 2080
4. Per contra, respondents would allege ay under' That, "The quarters are allotted as per seniority list on availability of vacant units. Phe applicant was not senior encugh to gel any quarter of his enfutlement at that paint. As he was not allotted any Govty departmental accommodation at that time, he was entitled HRA as per prevailing guidelines which were duly paid to him.
That, "the action taken to stop HRA of applicant wae well reasoned and justified. This incluced clarification from Dhrectorate of Estates, Gol also. The departmental accommodation cannot be left vacant as it will result in Juss of revenue to Govt, of India sinee i will incur some expenditure on ils maintenaree, and at the same time, HRA will have te be paid to thase govt. servants who would have otherwise occupied and utilise these quarters."
That, "the Tribunal had passed an arder in QA No, 1800 of 2017 dated 14.11.2618 in the case of Shri Kalvan Mukhopadhyay ws UOL and the case of applicant is different. While the case of Shri Ralvan Mukhopadhyay was examined as per advies of MoF issued vide No. SAYZOL3-BAE (3) dated 16.04.2019. the case of the applicant was examined in terme of subsequent mudelines on the subject, That, "the applicant has also referred to cases of similarly placed officers viz. Shri RN. Banerjee and Shri P. Parui, ASO (T) who were granted HRA even after their refusal to occupy allotted accommertation, However, it is clarified that Director of Accounts, Cabmet Secretariat (SW), the Fay and Accounts office. for these officers was duly informed by respondents to stop HRA in respect of Shri RN Banerjee vide their OM 8 CAB SU TSG 22038 even No. dated 20.06.2017, That, "As regards Shri P.Pawai, if is stated that he had been allotted Government accommodation at Hathikanda on O1.09.2016 when he was holding the charve of FOCD and HRA was deducted from his monthly salary wet September, 2016 to October, 2017. Consequent upon promotion of Shri P. Parui to the rank of Ast(T) wie 08/09/2017, he had submitted HRA option which was sent to Hars., Delhi on 09.10. 2017. His _ case af recovery of overdrawn HRA is initiated and HRA which may have win ateny a ~ i Xs Q been overdrawn would be culy recovered from him. The allotment of Govt.
quarter to Shri Srinivas Sreedhar and Shri T. K. Das was done as per departmental guidelines for aliotment of quarters. The process has been initiated for recovery of the overdrawn HRA by Shri Srinivas Sreedhar and HRA of Shri T. K. Das has already been stopped wel L2/i0/2020 Le. from the Sth day after allotment of Government Accommodation at CEC ' Hathikands. As no guidelines regarding release' deduction of HRA of other employees were received from Hars. after receiving the directives of Hon'ble Tribunal, further allotment of Govt. Accommodation was kept withheld and accordingly, deduction of HRA after fresh allotment was not dors"
That, "the allotment of departmental accommerlation is governed by ite allotment rules and guidelines issued by Department from time te tune. The govt. cannet be put inte fmancial loss by keeping the acconnnadations vacant on ene hand and spending money on their maintenance, and pay HRA to all eligible officials on the other."3 ER ALSSIE LSS 2/2020
That, "Govt. of India, MOLD OM No. F.12084/1/8007-Pol UT dated 14.11.2007 mandated issuance of Non Availability of Govt. Accommedation Certificate te entitle a govt. servant for HRA. The applicant was authorised HRA as he was not allotted any accommodation by the department in terms of laid dawn guidelines. The action taken by the Department for allotment af aecommodation to the applicant, on availability of the same, subsequently, is as per rules and to sate gure Sand is net in violation of any article of Conatituion of Covt. inter lyudia.
That, "the judgement of Hon'ble CAT, Kolkata bench in OA No. 1188 of 2010 (Om Prakash Sharma and Others V/s UOI and Ors) is not applicable im the instant case. The decision of Hon'ble Tribunal was based on facts that wpplicants were granted HBA by the respondents themselves and they had also built their own house and was now occupying the same. The Tribunal observed that the applicants cannot be compelled to reside ingovt. quarters and thereby not getting HRA and at the game time they are duty bound to repay HBA and suffer fnanci ini less doubly, Even Hon'ble High Court of Kolkata in WE 111 of 2011 judged that it was not the case of petitioners that the accommodations are still vacant, in view of 'the yeapondents vacating thase accoraniodations. Whereas, in the instant exse, accoramodation was lett vacant after non acceptance by the applicant, and even after efforts by respondent to allot it to other eligible offictals."
That, "the apphcation of the applicant dated 18.09.2019 was examined in detail. The applicant was given a speaking reply on 13.07.2090. The decision on the case of Shri Kalyan Mukhopadhyay was given ag per the prevailing rules at that time. Although the Ministry of 3] 30 OLASSS OM SOR ANS0 Finance OM Ne, 2/5/2017-RJ1TB dated 05.08.3019 has dispensed with the condition of applying for govt. accemmodation and fiunishing of 'No Accommodation Certificate' (NAC) by Central Govt. employees ty become eligible for HRA, it has, however, been left to the departments hasing own accommodation ta vaneider iis implementalion wherever feasible. Farther, a special relaxation was given in the case of Shri Kalyan \ Mukhopadhyay by MoF wide their ID No. S/S/2016-R.T (8) dated 16.04.2019 for implementing this arder from retrospective date. The placement of applicant vis a vis Shri Kalyan Mukhopadhyay and applieability of judgement in OA No. 1800 of 2017 was duly examimed and considered. The applicant was given a detailed speaking reply vide OM % dated 19.07.2020, and final guidelines were issued on 18.08.2020."
That "a detailed speaking reply dated 13.07. 2020 was served to the applicant and if was informed that the cases would be reconsidered ones comprehensive guidelines sre issued by the Ministry. Subsequent OM dated US.11.2020 was issued in comphance to that once etidelines were issued by the Ministry vide No. S/5/2019-RAT dated 18.08.2020"
5. Lhave considered the rival contentions and perused records.
6. Tt would be dectpherable and discernible fram the records that the decision in O.A. 1800/2017 in Kalyan Mukhopadhyay was implemented without demur, as communicated! on 27.5.2019 in the following wards:
"Subicel: OA. No, 250/07 800 of 2017 fed by Shri Kaivan Mukhopadivay vs Union offadia aad ofhersio Hon'ble GAT, Calcutta beneh a Han'bie CAT vide order dated TY/7 12078 on the subject cied above fad directed to reconsiderand dispose off lie representations seeking paynian aqainal HRA within bea cmonths fron ihe date of communication of the ibid order. fa fight of il O.A(S50/ 1862/2020 examined in the Denti. in consultation with MoH&UA and Minisiry of Finance and as per their advice it has been decided by ihe Depit. to allow payment of HRA fo Shri Kalvan Mukhopadhvay, DCT) SB Hathikanda from fhe date of his eligibility. Accordingly, necessary actions have been initiated towards the payment of arrears in respeci of thre applicant, cm Hence, it is intimated that filing of the application before CAT Kolkata as mentioned above is no longer required as the CAT judgement dated 14,4 1/2078 has already been complied by the Department"
Whereas in the case of the present applicant, the authorities turned down the prayer on the basis of subsequent rules. He was intimated as under:
"No. 138/20178-Admn. 1-Volll 4533 Cabinet Secretarial Gavernment of India wpe oe nite New Delhi, the 03.17.2020 MEMORANDUM Shri S. d. Choudhury may please refer to his representation daled 15,05,2020 and this office reply of even No, dated 13.07.2020 (cupy enclosed) conveying a speaking order in response to Judgement of Hon'ble CAT Kolkata daied 28.08.2019 and comprehensive representation dated 05.03.2019 which has been examined with reference fo Judgement in case of Shi Kalyan Mukhopadhyay towards his OA No. 1800 of 2077,
2. The matter has been re-examined. The speaking reply in compliance to the judgement of Hon'ble CAT has already been provided vide Hats. Memo dafed 13.07.2020. However, altention is invited to comprehensive Policy framed for organisation vide Cabinet Sectt, Order No. 8/15/2019-EA |-1359 dated 18.08 2020 which clearly stipulates that if te accommodation remains vacant, the same may be allotted to.senior most eligible officer posted there and in the event of his refusal, he may not be paid HRA from the dale of refusal till ihe tine the quarter remains The moment quarter is occupied by some willing occupant, HRA of the officer may be released from the dale of occupation of the same.
3. in view of present circumstances, it is informed that Shi Choudhury's request for payment of HRA on refusal of allotted accommodation cannot be acceded to subject to the conditions mentioned above.
(MAA Kumar Director (Acmn.7}"
Tt is evident that this Tribunal had directed consideration on 28.08.19.
12 1) AMSHOMSEWLOA 7 The guidelines on the subject dated 15.8.2020 (Annexure A132) was a subsequent one and is prospective. Therefore, if ought not to have been applied. It records as under! "46 AUG 2020 ORDER .
Sub: Guidelines for alloiment of departmental pool residential accammodation and acimissibility of House Rent Allowance.
in pursuarice of Ministry of Finance OM No. 2/5/2017-E-11B dated 08. OF 2079 and para 4{a) GD of HRA Rules, sanction is hereby conveyed for issuance of the fotlowing guidelines for allotment! of departmental pool residential accommoadaron:
A. The Departnent may, at first, try to allot the vacant acconmnodation fa. senior most efigible applicant, and on his refusal, fo the next junior sigive applicant as per priority list;
8, in event of non-availability of any eligible willing applicant for the vacant accommodation, the same may be considered to be filled up by those aniitied for one below category of quarters an payment of licence fee anly of the type of quarters allotted to him af the station; and C. (0) ff ihe acconunodation is sill left vacant, same may be allotted to servor most eligible officer posted there and in the event of fus refusal, he may nal be paid HRA from ihe date of his refusal til the time ihe quarter resnains . yacant. The moment quarter is occupied by some willing oecupant, HRA of _ the officer may be released from the date of occupation of the same.
B. (D} An earmarked' will mandatorily be occupied by incumbent officer in absence of incumbent officer, the incharge of the station may Qe considered for allotment of the said quarter on payment of licence fee only of the type of 'earmarked' quarter allotted to him at the station.
fed _ This issues in supérsession of afl earlier orders an the subject & 7
3. These guidelines shall be effective from the dale issue of order.
4. This issues with approval of Secretary (R) vide Dy. No 37 7/F/SR/Seoy(R} dated 73.08.2020.
(8d-->--~--} jJitendra Kumar Joshi) Direetor ({CS}"
'The guidelines have been assailed on the ground that they are not in tune with the precedents and being subsequently issued while heme prospective cannot be applied retrospectively tu deny the claim of fhe O.AMBSIV ISB 2/2020
8. Having considered the matter against the backdrop of the judicial pronouncement, [ would direct the respondents to consider grant benefit identical to that of the applicants cited above where this Tribunal and the higher fora have allowed HRA from due dates where the applicants were not residing in Government Quarters since unequal treatment cannot be meted out to identically placed employees.
Q. Let appropriate order be issued within 3 months.
10. Q.A is accordingly disposed of. No costs.
Re, Pas Ra oe re re e o Ss (Bidisha Banerjee) Member (J)