IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23.2.2010 CORAM: THE HONOURABLE MR.JUSTICE ELIPE DHARMARAO AND THE HONOURABLE MR.JUSTICE M.VENUGOPAL Writ Petition No.29690 of 2008 & M.P.Nos.1 and 2 of 2008 1.Union of India, rep.by the Secretary, Ministry of Defence, South Block, Central Sectt., DIIQ PO New Delhi-110011. 2.The Director General of Quality Assurance, Ministry of Defence, 'G' Block, Nirman Bhavan PO, New Delhi-110011. 3.The Controller, Controllerate of Quality Assurance, (Heavy Vehicles), Avadi, Chennai-600054. 4.The Controller, Controllerate of Quality Assurance (AVL), Avadi, Chennai-600054. 5.The Controller of Finance and Accounts (Fys), C/o.Heavy Vehicles Factory, Avadi, Chennai-600054. ... Petitioners Vs. 1.Mr.R.N.Ghosh 2.Mr.D.C.M.J.Pushparaj 3.The Registrar, Central Administrative Tribunal, Madras Bench, Chennai-600104. ... Respondents * * * Writ Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Certiorari to call for the records relating to the order of the third respondent dated 27.4.2008 passed in O.A.No.610 of 2006 and quash the same. * * * For petitioners : Mr.Y.Bhuvanesh Kumar, SCGS For R.1 & R.2 : Mr.Karthik * * * O R D E R
ELIPE DHARMARAO, J.
The respondents 1 and 2 herein were transferred from Kolkatta to Chennai respectively on 19.11.2003 and 12.11.2003 and they have applied for quarters with the respondents, but they were not available at that time. The procedure for payment of HRA to the employees, being followed by the petitioners’ Department seems to be that the Quartering Committee would scrutinize the applications received and subject to availability of quarters, they will allot the quarters to the employees and if quarters are not available, then, a ‘No Accommodation Certificate’ will be issued. But, in the case on hand, even though the respondents 1 and 2 are eligible for Type III quarters, those quarters were unavailable as per the report of the Quartering Committee dated 25.11.2003 and 23.12.2003. Since the quarters were not available, necessarily, the respondents 1 and 2 have hired private accommodations and they were also issued with a ‘Non-availability certificate’ for the purpose of drawing House Rent Allowance on 12.2.2004. Thereafter, on 1.3.2004, Type-III Quarters were allotted to the respondents 1 and 2, but since by that time, they have already hired private accommodations, they have expressed their inability to occupy the quarters and as such, the allotments made in favour of the respondents 1 and 2 were cancelled by the order dated 6.4.2004 stating that the respondents 1 and 2 have ‘refused accommodation’ when it became available. In the said order it was also stated that the persons who are not allotted accommodation at the time of their arrival to the station should wait till quarters are allotted on their turn depending upon their priority and eligibility and that the case of these respondents 1 and 2 was kept in the waiting list for issuance of allotment upon availability of accommodation and on 10.4.2004, No Accommodation Certificates were also issued to the applicants/respondents 1 and 2 for the period starting from the date of their arrival till 29.2.2004 and not thereafter i.e. from 1.3.2004 and HRA was also not paid to the respondents 1 and 2 insisting No Accommodation Certificates to be produced by them. Challenging the said action of the petitioners, the respondents 1 and 2 herein have filed O.A.No.610 of 2006 before the Central Administrative Tribunal, Chennai/the 3rd respondent and since the said Tribunal has allowed the O.A., the respondents therein have come forward to file this writ petition.
2. The case of the petitioners/administration is that the respondents 1 and 2 have requested for issuance of ‘No Accommodation Certificate’, but as per the rules in force, such a certificate can be issued only when the Government Accommodation was not provided/available and therefore the same was not issued beyond 29.2.2004. It has also been stated that the second petitioner vide their letter No.81397/DGQA/ADM/RMD(CW), dated 20.8.2004 stated that those drawing HRA prior to 7.3.2004 should not be asked to produce the No Accommodation Certificate and the second petitioner by their further letter dated 13.6.2005 further clarified that till the procedure for regulation for 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. Accordingly, bill drawing HRA in respect of the respondents 1 and 2 was sent by the petitioners 3 and 4 to the 5th petitioner and even though it was confirmed by the second petitioner that letter dated 13.6.2005 was issued only after getting approval from the competent authority i.e. Ministry of Defence, the HRA claim was not admitted by the 5th petitioner and it was further insisted by the 5th petitioner for obtaining financial concurrence from the appropriate level for issue of letter dated 13.6.2005. The petitioners further state that the second petitioner vide their letter No.A/81397/DGQA/ADM/RMD (CW), dated 6.10.2008 have now intimated that the earlier Note dated 13.6.2005, withholding implementation of SRO-31 and relevant provisions for grant of HRA without No Accommodation Certificate has been cancelled and grant of HRA will be made in accordance with SRO-31 and therefore this changed circumstance has necessitated the filing of this writ petition.
3. On a perusal of the entire materials placed on record it is clear that though the petitioners 2 and 3 have no quarrel with the claim of the respondents 1 and 2 and in fact, the third petitioner herein has forwarded the bill of the respondents 1 and 2 to the 5th respondent for audit and payment prior to the filing of the O.A. and on 8.5.2008 also, i.e. after the disposal of the O.A. by the Tribunal on 7.3.2008. But, the same was not processed by the 5th respondent and filed this writ petition based on the subsequent communication 6.10.2008 issued by the second petitioner cancelling the earlier communication dated 13.6.2005. By this communication dated 6.10.2008, the production of a ‘No Accommodation Certificate’ has been mandated as a condition precedent for grant of HRA.
4. There is no dispute regarding the fact that when the respondents 1 and 2 have applied for their eligible quarters of Type III immediately on their transfer from Kolkata, they were not available that time and hence the respondents 1 and 2 were forced to go for private accommodation. In a city like Chennai, it is the common knowledge of everybody that for occupying a private accommodation, the tenant has to pay ten months’ rent as advance to the house owner. Therefore, by the time when the Authorities have offered quarters, since they are already occupying private accommodations, probably by paying heavy advances, the respondents 1 and 2 have declined to take the offer of the Department. This has been treated as ‘refused accommodation when the quarters are available’ by the Authorities, denying them the benefits of HRA from 1.3.2004. Does the Department want its employees to be stranded on streets till the quarters are allotted to them? Admittedly, the respondents 1 and 2 were transferred to Chennai in the month of November, 2003 and by that time, quarters are not available and only on 1.3.2004, the quarters are allotted to them, necessitating and forcing the respondents 1 and 2 to go for private accommodation in the meantime. Without assessing this factual aspect in the respondents 1 and 2 declining to accept the quarters, the petitioners’ consistent rejection of HRA to the respondents 1 and 2 from 1.3.2004 does not seem to be fair. The plea of the respondents 1 and 2 that similarly placed employees were already issued with No Accommodation Certificates and were also granted HRA was not at all countered with by the petitioners, particularly the 5th petitioner.
5. When the Tribunal has passed the orders on 7.3.2008, directing the writ petitioners herein to grant benefits to the applicants/respondents 1 and 2, even though the order copy was obtained by the writ petitioners as early as on 6.5.2008 and the third petitioner has also forwarded the claim of the respondents 1 and 2 to the 5th petitioner narrating the order of the Tribunal on 8.5.2008, no step has been taken on the part of the 5th petitioner to comply with the direction of the Tribunal. But, subsequently, relying on the communication dated 6.10.2008 issued by the second petitioner, cancelling the earlier order dated 13.6.2005, this writ petition has been filed on 14.11.2008. We are not in a position to appreciate the action of the 5th petitioner in rejecting the claim of the respondents 1 and 2 and continuously insisting for No Accommodation Certificate for them, ignoring the fact that similarly placed employees have already been granted with the HRA and thus equals are being treated unequally.
6. It seems the term ‘No Accommodation’ is being read in a truncated manner by the petitioners without analysing the facts and circumstances of the case, thereby giving unnecessary and unwarranted problems to the employees. Had the factual position been properly appreciated by the 5th petitioner that the employees are forced to occupy the private accommodations, since they cannot make their family members to strand in the streets till the quarters are allotted, and the so called ‘refusal of accommodation’ by the respondents 1 and 2 is neither wanton nor wilful but only because of non-availability of quarters at the relevant point of time, forcing them to occupy private rental accommodation, by paying heavy advances, the 5th petitioner would not have rejected the claim of the respondents 1 and 2, which has been recommended by the petitioners 2 and 3 also. Therefore, we do not find any justification in the claim of the petitioners including drawing support from the communication dated 6.10.2008, which made it mandatory to produce No Accommodation Certificate. We hope the Administration will realise the situation and take all necessary steps to henceforth treat it as a ‘No Accommodation/Non Availing of Accommodation Certificate’ instead of insisting for a ‘No Accommodation Certificate’, further inducting a clause for the employees to explain the reason for their not occupying the quarters , which, in our considered opinion, will solve many a problem. It is also seen from the materials placed on record that the second respondent has constructed a own house at Veerapuram on 29.4.2006 and has given a representation dated 31.3.2009 to the third petitioner to grant him the HRA, since similarly placed employees were already granted HRA.
Therefore, considering all the facts and circumstances of the case, the petitioners are directed to immediately process the claim of the respondents 1 and 2 for HRA, without insisting for No Accommodation Certificate, till date and continue them to pay the same hereafter also. The petitioners are directed to settle all the dues on the respondents 1 and 2 within a period of three months from the date of receipt of a copy of this order. This writ petition is accordingly dismissed. No costs. Consequently, M.P.Nos.1 and 2 of 2008 are closed.
Rao
To
The Registrar,
Central Administrative Tribunal,
Madras Bench,
Chennai 600104