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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
Writ Petition No. 5950 of 2010.
Petitioners : 1) Union of India, through the Secretary,
Ministry of Defence, D (Fy-II), Sena
Bhawan, New Delhi
2) The DGOF/Chairman, Ordnance Factory
Board, 10/A, Shaheed K. Bose Road,
Kolkata
3) The General Manager, Ordnance
Factory, Chanda
versus
Respondents : 1) M. M. Rangari, Chargeman Grade-II,
Ordnance Factory, r/o Jatpura, Ward No.3,
Ghorkhiedki, Chandrapur
2) J. R. Chimurkar, DBW (HS), Ordnance
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Factory, Chanda, r/o Gautam Nagar, Near
Dr Hakke House, Bhadrawati, District
Chandrapur
3) B.K. Chirde, Orderly in Ordnance Factory,
Chanda, r/o near Hanuman Mandir, Bal Wadi,
Krishna Nagar, Mul Road, Chandrapur
4) A. R. Majumdar, Supervisor “B” in Ord-
ig nance Factory, Chanda, r/o Janki Niwas,
Opp. Dr Milmile Hospital, Guru Nagar,
Bhadrawati, Dist. Chandrapur
5) N. G. Bele, DBW (HS-I) in Ordnance
Factory, Chanda, r/o Sindhi Panchayat
Bhawan, Zade Complex, ram Mandir Road,
Chandrapur
6) R.B. Tiwari, Labourer “B” Grade in
Ordnance Factory, Ambajhari, r/o Benu
Nagar, Datta Wadi, Plot No. 58, Nagpur
7) P. K. Khedkar, F.E. Driver Gr.II in
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Ordnance Factory, Chanda, r/o near
Tendupatta Godown, Sriram Nagar, Plot No.
199, Bhadrawati, Dist. Chandrapur
8) K. K. Tikale, DBW (HS) in Ordnance
Factory, Chandra, r/o near Santosh Kirana,
Zade Plot, Ghutkala Ward, Bhadrawati,
District Chandrapur
ig 9) Smt Mangala N. Dhakate, TGT in Ord-
nance Factory School, Ordnance Factory,
Chanda, r/o Anchaleshwar Ward,
Kannamwar Chowk, Chandrapur
10) Gangaram B. Gurle, Supervisor “B”
(NT) in Ordnance Factory, Chanda, r/o
Babupeth Ward No. 3, Chandrapur
11) N. N. Meshram, Machinist (HS) in
Ordnance Factory, Chanda, r/o Manjusha
Layout, Pradhan Society, Bhadrawati,
District Chandrapur
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12) S. P. Urkude, FE Driver “A” in Ordnance
Factory, Chandra, r/o c/o P. B. Urkude, Amre
Kirana Stores, Zade Plot, Bhadrawati,
District Chandrapur
Mr S. K. Mishra, Assistant Solicitor General for petitioners
Mr B. Lahiri, Advocate for respondents
Coram : B. P. Dharmadhikari & A. P. Bhangale, JJ
Dated : 26th September 2011
Judgment (Per A. P. Bhangale, J)
1. Rule. Heard forthwith by consent of parties.
2. The short question that falls for consideration in this
Petition is whether the employees of Ordanance Factories the
Petitioner-Union of India, viz., the Ordanance factory Board are
entitled to House Rent Allowance (HRA) after they had constructed
their own respective houses by arranging loans and after shifting to
their own accommodation on the ground that they have not obtained
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“non-availability Certificate” in respect of official residential
accommodation . The answer must be given in the negative for the
following reasons.
3. It is not in dispute that Employees who have applied for
allotment of Government accommodation from the General pool of
residential accommodation and have not been allotted their entitled
type of accommodation due to non-availability of the accommodation
would be entitled to claim House Rent Allowance(HRA). The
submission made on behalf of the Petitioner is that the Central
government Employees who are offered official residential
accommodation but they refused to occupy the same would not be
entitled to claim HRA.
4. The respondent-employees are occupying various posts i.e
Machinist , Trained Graduate Teacher, Supervisor, Orderly, Laborers B’
Grade etc. in the Ordanance factories controlled by Petitioner-Union
of India/Ordanance Board. The respondents have constructed their
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respective houses after arranging Loan and after Construction of their
houses shifted to their own accommodation. Thus they are not
occupying the government accommodation though available and
offered to them by the Administration. Respondents made a
grievance that after shifting to their own houses the HRA was stopped
and has not been paid to the respondents by the Petitioner .The
Respondents after their request for HRA was rejected by the Petitioner
on the ground that they had not obtained the Non -availability
certificates as pre-requisite condition for the payment of HRA,filed
independent Original Applications O.A. no 2001/2010 to 2012/2010
raising grievance of non payment of HRA. The original Applications
filed by the Respondent no 2 to 13 were allowed by the Central
Administrative Tribunal by the impugned order .The Petitioner
challenged it before us mainly on the ground that the Office
Memorandum No. 120341/88-Pol .III dated 27.06.2001 of the
Government of India, Directorate of estates ,New Delhi , would govern
the present case. The relevant portion of the said paragraph reads as
follows:
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“—- It has been found that the General Pool Accommodation in
Certain types are presently surplus in five cities:Kolkata, Shimla,
Faridabad,Ghaziabad and Nagpur. It has therefore been decided that
the Govt Servants who are eligible for General Pool 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
accommodation surrender it , may be paid HRA, if otherwise
admissible, without obtaining ‘No Accommodation Certificate’ from
the Directorate of Estates or its regional offices as the case may be in
respect of all types of accommodation at the under mentioned
stations:
1. Delhi 4. Chandigarh
2 Mumbai 5 Bangalore
3 Chennai 6. Indore----"
In another Govt of India Ministry of Finance Office memorandom no F.
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12034/1/2007 -Pol.III, dated 14/11/2007 there was review of
demand- availability situation in cities having General Pool
accommodation to determine the admissibility of HRA to the Central
Government employees. In the city of Nagpur since it has a surplus
stock of Central Government ‘s General pool residential
accommodation (GPRA)administered by Directorate of Estates ,
employees eligible for the same shall be able to draw HRA only if
they can produce a ‘No Accommodation Certificate” The policy is
applicable to the Central Government Employees in Nagpur amongst
other notified cities .Necessary directions in this regard as to the
current policies are issued by the central government to the heads of
the departments and heads of all the offices concerned.
In other words therefore for Nagpur city obtaining ‘No
Accommodation Certificate’ for government servant is necessary to
claim HRA as may be payable or admissible.
It is contended on behalf of the Petitioner that the Tribunal (CAT) was
in error to pass the impugned order without considering the settled
principle of law and HRA and CCA general rules and guidelines by
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office memorandums issued from time to time. Central
administrative Tribunal making reference to it’s earlier decisions
observed that the requirement of obtaining the “No Accommodation
Certificate “as a pre-requisite is not shown to have been emanated
from the binding law or statutory rules while allowing the Original
applications filed by the respondents herein . Our attention is brought
to the ruling by the Apex Court in Director, Central Plantation crops
Research Institute vs.. M Purushottaman and others reported in AIR
1994 SC 2541. It is explained thus in Para 4 :-
“It must be remembered in this connection that the
Government or the organisation of the kind of the
appellant spends huge public funds for constructing
quarters for their employees both for the convenience of
the management as well as of the employees. The
investment thus made in constructing and maintaining the
quarters will be a waste if they are to lie unoccupied. The
HRA is not a matter of right. It is in lieu of the
accommodation not made available to the employees. This
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accommodation is offered the employees have either to
accept it or to forfeit the HRA, The management cannot be
saddled with double liability, viz., to construct and
maintain the quarters as well as to pay the HRA. This is the
rationale of the provisions of paragraph 4 of the said
Government Office Memorandum. It is for this reason
again that paragraph 4 [b] (I) provides that the HRA shall
not be admissible to those who occupy accommodation
provided for them as well as to those to whom
accommodation has been offered but who have refused it.”
In para 9, Honourable Supreme Court further
observed:
“9. The HRA would be covered by the definition of
Compensatory Allowance. It is compensation in lieu of
accommodations. This definition itself further makes it
clear that compensatory allowance is not to be used as a
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source of profit. It is given only to compensate for the
amenities which are not available or provided to the
employee. The moment, therefore, the amenities are
prodiced or offered, the employee should cease to be in
receipt of the compensation which is given for want of
it….”
5. Thus it appears that HRA is a statutory right, and can be
subjected to restrictions which are reasonable. Furthermore, it
appears clear that the employee must have a right to get House Rent
Allowance (HRA ) as per existing Rules or Decisions of The
Government of India which have binding force or a contract. It is not
a matter of right, it is an compensatory allowance given by an
employer to an employee towards the rental accommodation expenses
of the employee when Government is unable to provide residential
accommodation suitable for the residence of it’s employee. The
employee if own his property he may not be entitled to claim the
HRA, because HRA is paid to Central Govt. employees to compensate
them partly for the especially higher rents which they have to pay for
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hired or rented residential accommodation in big cities, but not as a
source of profit.. HRA is paid at different slab rates in different cities
and for this purpose cities have been classified with reference to their
growth and population. For the drawl of HRA, a Govt. servant has to
incur some expenditure on rent/contribute towards rent or
pay/contribute towards house or property tax and furnish a certificate
to that effect as per Annexure-II in Para.8 of Swamy’s Compilation of
FR & SR, Part-V, HRA and CCA. In our opinion the Central
government regulations which are in force unless they are declared as
arbitrary or illegal would govern the Central government
Employees. In our opinion unless a binding law or specific Regulation
governing is pointed out for payment of HRA to the respondents
employees of Ordanance Factories the Petitioner-Union of India, (viz.,
the Ordanance factory Board ) the respondents are not entitled to
claim House Rent Allowance (HRA) as a matter of right after they
had constructed their own respective houses by arranging loans and
after shifting to their own accommodation without obtaining the ‘No
Accommodation Certificate’ (NAC) from the Estate officer concerned.
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Prima facie in our opinion the pre-requisite of NAC as laid down in
the office memorandum as operative in city of Nagpur when Central
government accommodation is available in surplus and Central
government is required to spend huge amounts towards Construction
and maintenance Of Government buildings is neither arbitrary nor
malafide .The policy decision in this regard must be left to the
Government’s sound discretion. The Court ought not to substitute
the judgment of the executive by it’s own opinion merely because
another view may be possible. The interference in writ jurisdiction
may be justified only if the administrative authority concerned
transgressed it’s constitutional limits or statutory power.
6. For the above reasons and in the facts and circumstances
disclosed before us, the impugned Order is unsustainable and
therefore quashed and set aside as Original applications were
wrongly allowed by the impugned Order. We direct dismissal of the
Original Applications in terms of Prayer (1) in the Writ petition. The
Petition is allowed accordingly. Rule is thus made absolute. In the
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facts and circumstances of the case, there shall be no order as to
costs .
A. P. BHANGALE, J B. P. DHARMADHIKARI, J
joshi
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