ORDER
S. Parvatha Rao, J.
1. The petitioner is the Andhra Pradesh Judicial Employees Association, Mangalagiri Unit. Its President has given the affidavit in support of the present Writ Petition. He states that the 33 employees working in two Munsif Magistrate Courts located in Mangalagiri Town have been receiving House Rent Allowance (HRA) at 20% and also City Compensatory Allowance at Rs. 30/- on that basis. According to him, the HRA at 20% is being paid to the staff working in the two Munsif Magistrate Courts located near old bus stand in Mangalagiri Town on the basis that their place of work is 8 Kilometres from Vijayawada City thereby entitling them to claim HRA applicable to those working in the local area of Vijayawada City. He states that they have been drawing HRA on par with Vijayawada City employees since 1979. Now, they find that under G.O. (P) No. 341 dated 30-9-1994 of Government of Andhra Pradesh in Finance & Planning (FW. PC.II) Department, the 1st respondent ordered that Government employees working in 39 specified towns including Mangalagiri (item No. 11) should be allowed to draw HRA at 12.5% only with effect from 1-9-1994 by amending Rule 2(1) (b) of the Andhra Pradesh Public Employment (House Rent Allowance) Rules, 1988 (‘the Rules’ for short) by substituting a new Clause (b) as follows:
“(b) Except those District Head Quarters covered by Sub-rule (1) (a), the rate of the House Rent Allowance shall be 12.5% of pay in all District Head Quarters of the State and to the following towns whose population exceeded fifty thousand:-
xxx xxx xxx
11. Mangalagiri
XXX XXX XXX
This has been made much worse by G.O. (P) No. 10 dated 15-1-l997 issued by the Government of Andhra Pradesh in Finance & Planning (Fin. Wing. PC-IV) Department making HRA at 12.5% with reference to the towns specified in G.O. (P) No. 341 admissible from 1-1-1992 instead of 1-9-1994 by making the new clause (b) of Rule 2(1) of the Rules effective from 1-1-1992. The petitioner questions the same and seeks a Writ of Mandamus declaring the action of the respondents “in taking away the benefit of G.O. (P) No. 239, dated 17-9-1979, Finance & Planning (FW-PRC-I) Department, permitting the employees of petitioner’s association working to draw 20% House Rent Allowances and Rs. 30/- City Compensatory Allowance by the issuance of impugned G.O. (P) No. 10, Finance & Planning (Fin. Wing PC IV) Department, dated 15-1-1997 as applicable and taking steps to recover the amounts already paid by virtue of the proceedings of the Sub-Treasury Officer, Mangalagiri, R.C.9/95/A1, dated 26-2-1997 as bad, illegal, arbitrary and in violation of Article 14, 16 & 19 of Constitution of India and consequently to direct the respondents to continue to pay 20% HRA & Rs. 30/- CCA per employee on par with employees working in periphery of qualified town i.e., Vijayawada and to pass such other order or orders as the Hon’ble Court may deem fit and proper in the circumstances of the case”.
2. In short, the petitioner claims HRA at 20% as of right. This question is no longer res integra. Referring to the decisions of the Supreme Court, a Division Bench of this Court (of which one of us, S. Parvatha Rao, J., was a member) held in D. Peri Reddy v. Govt. of A.P., and C. Suresh Patnaik v. Govt. of A.P., that HRA cannot be claimed by Government employees as of right and that grant of House Tent Allowance depended on the policy of the Government, and that this Court could not direct the Government to grant to its employees HRA at any particular rate or, for that matter, any HRA if the Government withdrew that allowance. In State of M.P. v. G.C. Mandawar, , a Constitution Bench of the Supreme Court held that Compensatory Allowance under Fundamental Rule 44 was ‘a matter of grace and not a matter of right’ and that the grant of Dearness Allowance was not justiciable. In Director, C.P. Crops Research Institute v. M. Purushothaman, AIR 1994 SC 2541, the Supreme Court held that House Rent Allowance did not form part of ‘Pay’ as defined in Fundamental Rule 9 (21)(a), and that House Rent Allowance was not a matter of right and that it was in lieu of accommodation not made available to the employees. See also Reserve Bank of India v. R.B.I. Staff Officers Association, , Union of India v. S. Vijayakumar, 1994 Supp. (3) SCC 649 and Union of India v. Executive Officers Association Group-C, .
3. In view of this settled legal position, we are unable to uphold the claim of the petitioner that its members arc entitled to HRA at 20% even after the Government has decided to grant HRA in respect of all Government employees working in Mangalagiri town at 12.5% under G.O. (P) No. 341 dt. 30-9-1994. Under G.O. (P) No. 10 dated 15-1-1997 this HRA at 12.5% was to be given with further retrospective effect i.e., from 1-1-1992. In the preamble it was stated in G.O.(P) No. 10 that this retrospective effect was being given because the Government decided to implement the judgment of this Court dt. 23-4-1992 in W.P. No. 721 of 1992 and batch and to pay HRA at 12.5% from 1-1-1992 to Government employees in the towns where the population crossed 50,000. The resultant position after this G.O. is that members of the petitioner Association working in Mangalagiri cannot claim or get HRA at more than 12.5% of their pay from 1-1-1992. Therefore, the petitioner cannot have a direction to the respondents to pay its members HRA at more than 12.5% of their pay.
4. The petitioner claims that its members were being paid the HRA allowable in respect of Vijayawada town by virtue of the earlier G.O.(P) No. 239 dated 17-9-1979 issued by the Government of Andhra Pradesh in Finance & Planning (Fin. Wing PRC.I) Department, as amended by G.O.Ms. No. 354 dated 17-12-1980. G.O.(P) No. 239 as it originally stood, inter alia, provided as follows:
“3. Government accept the recommendations of Pay Revision Commissioner and hereby order that employees working in Offices situated within a distance of 8 K.Ms. from the Municipal limits of the qualified towns be granted House Rent Allowance at the same rate as applicable to the employees working in the Offices situated in the Municipal Town concerned.
4. These orders shall apply to all categories of personnel, i.e., Government employees, Teaching and Non-Teaching Staff of Aided Schools and Colleges, Zilla Parishads, Panchayat Samithis and Municipalities, all other employees of Gram Panchayats, Panchayat Samithis, Zilla Parishads, Municipalities and Zilla Grandhalaya Sansthas and Workcharged Establishment who get monthly pay in a regular pay scale”.
This was amended by G.O.Ms. No. 354 dated 17-12-1980 with effect from 1-3-1979 i.e., the date from which G.O.(P) No. 239 was brought into effect, by substituting original para 3 by a new para 3 which reads as follows:
“Government accept the recommendations of the Pay Revision . Commissioner and hereby order that the employees whose places of duty are in Villages/Towns whose revenue limits are within a distance of 8 KMs. from the Municipal limits of the qualified towns be granted House Rent Allowance at the same rate as applicable to the employees working in offices situated in the Municipal towns concerned.”
Under G.O.(P) No. 237, dated 17-9-1979 it was ordered that “H.R.A. at the existing rate of 15 per cent of pay subject to a maximum of Rs. 400/ for the employees whose place of duty is Hyderabad, Secunderabad, Visakhapatnam, Warangal, Vijayawada and Guntur shall continue to apply over the pay in the Revised Pay Scales, 1978” and that “in respect of other places where H.R.A. is admissible at 7 1/2 per cent of pay, the existing rate of 7 1/2 per cent of pay shall continue to apply over the pay in the revised Pay Scales, 1978.” These orders were deemed to have come into force with effect from 1-4-1978 with monetary benefit from 1-3-1979.
5. The petitioner states that “it was then found that the distance between Mangalagiri and qualified town Vijayawada was below 8 K.Ms. by measuring at by crow is flying method”. In G.O.Ms. No. 208, dated 8-7-1986 of Finance and Planning (Finance Wing-P.C.I) Department, the Government observed that “it was not the intention of the Government in issuing these orders (G.O.Ms. No. 354, dated 17-12-1980) to take into account the distance of 8 K.Ms. as the crow flies but the actual distance by which an employee can normally reach by any method to the place of work” and, after reconsideration of the whole issue in detail, issued the following instructions:-
“(i) House Rent Allowance at the rates already sanctioned for different towns, hereinafter called the qualified towns, shall also be admissible to the employees who are working in offices situated within a distance of 8 K.Ms. from the Municipal limits of the qualified towns.
(ii) For this purpose the distance shall be computed with reference to the nearest route between the Municipal limits of the qualified town and the place where the office is situated.
(iii) The Executive Engineer (Roads and Buildings) in whose jurisdiction the office is situated falls, shall issue a certificate indicating therein the distance between the place of duty of the last point of the qualified town, the distance being computed as per instruction (ii) above. The certificate should be issued after the site is inspected.
(iv) The certificate as in instruction (iii) above shall be issued in duplicate to each drawing officer on receipt of a requisition from the Head of Office indicating therein the exact location of the office and its proximity to the qualified towns. The requisition should be issued immediately to avoid inconvenience to the employees. The Executive Engineer should also see that certificate is issued most expeditiously.
(v) On receipt of the certificate one copy shall be attached to the bill in which House Rent Allowance for the month of July, 1986 is claimed. The other copy shall be retained by the Head of Office for the purposes of Departmental Audit and audit by the parties of Accountant General’s Office. The Chief Engineer (R & B) is requested to issue instructions to all the Executive Engineers (R & B) to issue certificates after physical verification expeditiously.
(vi) These orders shall come into force from 1st August, 1986 (i.e.) in respect of salary for the month of August 1986 payable on 31st August, 1986. The House Rent Allowance for the month of August, 1986 in respect of the offices situated outside the qualified towns shall not be admitted without the certificate of the concerned Executive Engineer (R & B).
(vii) Heads of Departments are requested to issue instructions to their subordinate offices to take urgent action to obtain the certificate from the Executive Engineer (R & B) concerned by sending a requisition.”
The petitioner states that some of the Government employees working in Mangalagiri town the municipal limits of which, according to them, were within a radius of 8 K.Ms. from the qualified town i.e. Vijayawada, including some judicial employees stationed in Mangalagiri, questioned G.O.Ms. No. 208, dated 8-7-1986 before this Court by way of Writ Petition No. 16304 of 1986 on the ground that they would be denied the benefit of higher H.R.A. because their offices, though located in Mangalagiri town, were more than 8 K.Ms. away from the peripheral limits of the qualified town, Vijayawada. That writ petition was disposed of by a learned Single Judge of this Court (K. Ramaswamy J.) by order dated 25-11-1986 observing and directing as follows:-
“…………………….It is well settled that persons similarly situated are entitled to equality of treatment and equal pay for equal work, is enshrined in Article 39(d) of the Constitution. Therefore, all the Government employees who are residing in the notified towns but are working in a radius of 8 K.Ms. from the periphery of the notified town are equally entitled to House Rent Allowance and City Compensatory Allowance. The object of the CO. therefore is to accord the same benefit also to the employees who are residing in the notified town but working in the offices situated within a radius of 8 K.Ms. from the periphery of the notified town. When such is the situation, as mentioned in the preamble to the G.O. it intended to peg down the attempt to circumvent the rule by some of the employees to have the benefit though residing beyond the distance of 8 K.Ms. So Clause-2 thereof was introduced and the distance rule with reference to the outer limits of the notified town and shortest route are introduced. As far as the principle is concerned, it is well justified and needs no interference. But in its working, when it actually overlaps though situated within the same town viz; the persons who are similarly situated are entitled to equal treatment and in such an event the Government is to clarify the position and give necessary direction to the Executive Engineer concerned to give the certificate for such of those employees who are working at the same place but their offices are fortuitously situated for no fault of the employees at a distance beyond the distance overlapping 8 K.Ms. from the periphery of the notified town. But as rightly pointed out by the learned Government Pleader, it is a matter of detailed verification of the Executive Engineer concerned and to certify the same.
Accordingly, there shall be a direction to the Government to give suitable direction within two months from the date of receipt of the order to the Executive Engineer (R & B) to verify all the individual cases and to certify to the above effect. Till then the present benefit would continue. The Writ Petition is accordingly disposed of.”
Meanwhile, the Government issued G.O.Ms. No. 289, dated 17-11-1986 enhancing the H.R.A. as follows:-
“4. Government have accepted the recommendations of the Pay Revision Commissioner and hereby order as follows:-
(a) House Rent Allowance at 20% of pay instead of 15% shall be admissible in cases where the places of duty is in Twin Cities, Visakhapatnam, Vijayawada, Warangal, Guntur, Rajahmundry, Nellore, Kakinada, Kurnool, Tirupati and Nizamabad. The rate of H.R.A. shall be subject to a minimum of Rs. 150 per month.
(b) In the other places where the present rate of H.R.A. is 7 1/2% or 4%, the revised rate of H.R.A. shall be 10%. The rate of H.R.A. shall be subject to a minimum of Rs. 75 per month.
(c) The H.R.A. shall be subject to a maximum of Rs. 1,000 per month.
(d) Pay for the purpose of calculation of H.R.A. under this order shall be the pay in the Revised Pay Scales, 1986.
(e) The existing orders and clarifications in regard to the admissibility of H.R.A. to those employees whose place of duty is within 8 K.Ms. belt, shall continue to apply.
(f) The existing definition of pay for the purpose of calculation of H.R.A. shall continue to apply.
(g) House Rent Allowance will not be admissible to those employees who are provided with rent free accommodation.
. . . . . . . . . . . . . . . . . . . ”
Thereafter, the Government issued a notification under G.O.Ms. No. 107, dated 15-4-1988 making the Andhra Pradesh Public Employment (House Rent Allowance) Rules, 1988 (the Rules) in exercise of its powers under the proviso to Article 309 of the Constitution of India. Under Sub-rule (3) of Rule 1, the Rules were deemed to have come into force from 1-7-1986. Rule 2 of the Rules provided for the rates of H.R.A. at different places. It is relevant to notice that under he proviso to Sub-rule (2) of Rule 2, the H.R.A. at the rates mentioned in Sub-rules (1) and (2) of that rule were also made admissible “to the employees who are working in offices situated within a distance of 8 K.Ms. from the Municipal limits of the places mentioned in Sub-rules (1) and (2) of this Rule”, subject to the following conditions:-
“(i) For this purpose, the distance shall be computed with reference to the nearest route between the Municipal limits of the qualified town and the place where the office is situated.
(ii) The Executive Engineer (R & B) in whose jurisdiction the office is situated, shall issue a certificate indicating therein the distance between the place of duty and the last point of the qualified town the distance being computed as per instruction (i) above.
(iii) The certificate as in instruction (ii) above shall be issued in duplicate to each Drawing Officer on receipt of a requisition from the Head of Office indicating therein the exact location of the office and its proximity to the qualified towns. The requisition should be issued immediately to avoid inconvenience to the employees. The Executive Engineer shall see that certificate is issued within 15 clays from the date of receipt of requisition.
(iv) On receipt of the certificate one copy shall be attached to the bill in which House Rent Allowance is claimed, the other copy shall be retained by the Head of Office for purposes of Departmental Audit and audit by the parties of Accountant-General’s Office. The Chief Engineer (R & B) shall issue instructions to all the Executive Engineers (R & B) to issue certificates after physical verification expeditiously.
Provided that in case of employees who have already submitted the distance certificate for this purpose need not submit the same.”
6. It is the case of the respondents that the Superintending Engineer (R & B) Circle, Guntur clarified that the distance from Vijayawada Municipal Corporation limits to the centre point of Mangalagiri is 9.554 K.Ms. They also filed a copy of the letter No. 2738/ EC.1/95, dated 5-12-1995 addressed by the Superintending Engineer to the Engineer-in-Chief (R & B), Roads, Andhra Pradesh and that of Letter No. 26705/TEC/TA.15/95, dated 21-12-1995 addressed by the Engineer-in-Chief (R & B), Roads, A.P. to the Deputy Secretary to the Government, Finance and Planning (FW. PC.II) Department. On the other hand, the petitioner relies on Proceeedings No. 7401/HD/72, dated 30-1-1981 of the Executive Engineer, R&B Division, Guntur-1, wherein he certified that “Mangalagiri village (revenue limits) is lying within 8 K.Ms. radius from the periphery of Vijayawada Municipal limits”. This was, however, prior to the order of this Court dated 25-11-1986 in Writ Petition No. 16304 of 1986. The petitioner also relies on an undated certificate said to have been issued by the Executive Engineer (R&B) Division, Guntur-1 to the Commandant, VI Bn., A.P.S.P. to the effect that “Mangalagiri village in which the Office of the Commandant, VI Bn., A.P.S.P. at Mangalagiri is situated is at a distance of 7.70 K.Ms. along a road from the Municipal limits of Vijayawada as required in G.O.Ms. No. 208, Finance and Planning (Fin. Wing. PC I) Department, dated 8-7-1986”. They also rely on another undated certificate said to have been issued by the Executive Engineer, R&B Division, Guntur-4 to the effect that the camp of VI Bn., A.P.S.P., Mangalagiri was situated at a distance of 6.287 K.Ms. along the road from the Municipal limits of the qualified town i.e. Vijayawada Corporation as required in G.O.Ms. No. 225, Finance and Planning (FW. PC.II) Department, dated 29-5-1993. These certificates are obviously with reference to the places of particular offices referred to in the said certificates and not’ with reference to the offices in which the members of the petitioner-association are working in Mangalagiri town. But in the present Writ Petition we are not concerned with the distance of the Mangalagiri town from the Municipal limits of Vijayawada Corporation because now Mangalagiri town itself was made a qualified town for the purpose of H.R.A. by amending Clause (b) of Sub-rule (1) of Rule 2 of the Rules under G.O.(P) No. 341, dated 30-9-1994 as modified by G.O.(P) No. l0, dated 15-1-1997 with effect from 1-1-1992.
7. As originally notified under G.O.Ms. No. 107, dt.15-4-1988, under Sub-rule(l) of Rule 2 of the Rules, H.R.A. at 20 per cent of pay was allowed in the twin cities of Hyderabad and Secunderabad, Visakhapatnam, Vijayawada etc.; under Sub-rule (2) of Rule 2, H.R.A. at 12 1/2 per cent of pay was allowed in all the District Headquarters of the State except those District Headquarters which were covered by Sub-rule (1) of Rule 2; and under Sub-rule(3) of Rule 2, H.R.A. at 10 per cent of pay was allowed subject to a minimum of Rs. 75/- per month in all other places not covered by Sub-rules (1) and (2) of Rule 2. It is not necessary to refer to the other portions of the original Rule 2 introduced by G.O.Ms. No. 107, dated 15-4-1988 because Rule 2 was substituted by a new Rule 2 under G.O.(P) No. 225, dated 29-5-1993 with effect from 1-1-1993 observing that the monetary benefits arising due to this amendment would accrue from 1-4-1993. The respective rates of H.R.A. under new Rule 2 were reduced from 20 per cent to 16 per cent, from 12 1/2 per cent to 10 per cent, and from 10 per cent to 8 per cent. However, under G.O.(P) No. 19, dated 19-1-1994, the rates of H.R.A. at 20 per cent, 12 per cent and 10 per cent were once again restored with effect from 1-4-1994 by making suitable amendments to Sub-rule (1) of new Rule 2. Sub-rule (4) of new Rule 2 introduced by G.O.(P) No. 225, dated 29-5-1993 is as follows:-
“(4) The rates of allowance specified in Sub-rule (1) (a) and (1) (b) or Sub-rule (2) (a) and (2) (b) of this rule, as the case may be, shall also be admissible to those employees working in offices and institutions which are situated in villages falling within 8 K.Ms. of the periphery of the qualified towns subject to the following conditions:
(i) For this purpose, the distance shall be computed along the nearest route, by a public road, between the Municipal limits of the qualified town and the centre of the inhabitated area of the village. Thus the offices in a village shall be eligible if the distance so computed is less than 8 K.Ms.
(ii) The District Collector shall notify such villages in respect of each qualified town by obtaining the list of such villages from the Executive Engineer (R&B) concerned.
(iii) On issuance of Notification by the Collector, one copy of Notification shall be attached to the Bill in which allowance is first claimed. The other copy shall be retained with the Drawing Officer for purpose of departmental audit and audit by the parties from the Accountant General”.
It is important to notice that the expression “employees working in offices and institutions which are situated in villages falling within 8 K.Ms ………………….” has been substituted instead of “employees working in offices situated within a distance of 8 K.Ms………………………” By virtue of this amendment employees working in Mangalagiri are excluded from the operation of Sub-rule (4) of Rule 2 of the Rules because it is not in dispute that Mangalagiri has been a town for quite sometime even prior to issuance of G.O.(P) No. 341, dated 30-9-1994 and even prior to 1-1-1992 the date with effect from which the new Clause (b) was substituted in Sub-rule (1) of Rule 2 under G.O.(P) No. 10, dated 15-1-1997. The petitioner-association and its members have not questioned the amendment effected by the notification under G.O.(P) No. 225, dated 29-5-1993.
8. We have referred to the various G.Os. right from 1979 only to clear the picture. It is not necessary to enquire further into the earlier H.R.As. enjoyed by or allowed to the members of the petitioner-association because as of now and by 1-1-1992 i.e., the date when G.O.(P) No. 10, dated 15-1-1997 brought into effect H.R.A. at 12 1/2 percent in respect of employees working in Mangalagiri, it is not in dispute that Mangalagiri has been a town and not a village, and that there has been a specific provision made in respect of those employees providing for H.R.A. at 12 1/2 per cent by including Mangalagiri town among the qualified towns under Rule 2(1) (b) with effect from 1-1-1992. In view of this, we are satisfied that the members of the petitioner-association are not entitled to claim H.R.A. at a rate higher than 12.5 per cent from 1-1-1992. Therefore, we find that excess H.R.A. paid from 1-1-1992 can be recovered from them as requested by the 6th respondent under his proceedings R.C.9/95/A1, dated 26-2-1997.
9. As regards the excess H.R.A., if any, paid to the members of the petitioner association prior to 1-1-1992, Rule 7 of the Rules specifically provides for the recovery of the H.R.A. wrongly drawn in contravention of the Rules from 1-7-1986 in easy instalments, not exceeding twelve. It is for the association and its members to make appropriate representation to the authorities concerned. As and when such representations are made, the authorities concerned may give appropriate consideration to the said representations keeping in view, among other aspects, the hardship that will be caused by the recoveries sought to be effected. We are of the view that this Court cannot given any directions in that regard.
10. In the result, the Writ Petition is dismissed. No costs.