{"id":216688,"date":"2003-05-22T00:00:00","date_gmt":"2003-05-21T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mr-nirmal-kumar-verma-vs-union-of-india-uoi-and-ors-on-22-may-2003"},"modified":"2018-11-01T10:16:27","modified_gmt":"2018-11-01T04:46:27","slug":"mr-nirmal-kumar-verma-vs-union-of-india-uoi-and-ors-on-22-may-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mr-nirmal-kumar-verma-vs-union-of-india-uoi-and-ors-on-22-may-2003","title":{"rendered":"Mr. Nirmal Kumar Verma vs Union Of India (Uoi) And Ors. on 22 May, 2003"},"content":{"rendered":"
Delhi High Court<\/div>\n
Mr. Nirmal Kumar Verma vs Union Of India (Uoi) And Ors. on 22 May, 2003<\/div>\n
Equivalent citations: 105 (2003) DLT 430, 2003 (69) DRJ 555, 2004 (1) SLJ 98 Delhi, 2003 (6) SLR 791<\/div>\n
Author: V Jain<\/div>\n
Bench: V Jain<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
Vijender Jain, J.<\/p>\n
1. The petitioner was appointed as  an  Administrative  Member of the  Central Administrative Tribunal on 1.12.1992 for a period of five years or till the attainment  of  the age of 62  whichever was earlier.  He was an officer of the Indian  Postal Service after having been  selected in All India Allied Services Examination  in 1959.  He was serving as Chief Post Master General, Maharashtra in the rank of Additional Secretary  to the Government of India.  At that stage he was  offered the post of  Member (Administrative) of the Central Administrative Tribunal.  He was  given an appointment  at   Patna  Bench vide  order dated 01.12.1992.  The petitioner  joined  the Patna Bench  on 20.01.1993.  It is the case of the petitioner  that he suffered ill health in Patna  from the period March 1993 to September 1993 and had to take extra  ordinary leave  for 39 days  without pay and allowances on medical  grounds. On this score an amount of Rs. 1560\/-  which was paid to the petitioner  on account of  allowance for accommodation  was ordered  to be recovered from him by the Vice-Chairman of the Patna Bench after the  petitioner was transferred  from Patna to Bombay.\n<\/p>\n
2. One of the prayer in the writ petition  is with regard  to the payment  of  the  compensatory allowance for accommodation  for 39 days extra ordinary leave on medical ground while functioning as Member of the Central Administrative Tribunal, Patna Bench.  The second prayer of the petitioner is with regard  to the payment of the compensation  in lieu of  non-occupation of Government accommodation  for his stay  at Chandigarh  while functioning as Member of the Central Administrative Tribunal, Chandigarh Bench.  The third grievance of the petitioner is that  when the petitioner was posted at Jodhpur  he hired a private  accommodation at the rate of Rs. 3000\/- per month  for the period 15.2.95 to 29.2.96, whereas,  the respondent  had reimbersed only  at the rate of Rs. 1200\/- per month for the said period.   It is the case of the petitioner  that  the petitioner  was entitled  to be reimbersed   at the rate of Rs. 3000\/- per month as per the  guidelines applicable to the case of the Members  of the Central Administrative Tribunal.\n<\/p>\n
3. In support of his contention  petitioner who  appeared in person had contended that  from the bare reading  of pay as defined  in  the Fundamental  Rules 9(21) (a), HRA  is not a part of the pay. The same is reproduced below:\n<\/p>\n
 “9.(21) (a) Pay means the amount drawn monthly by a government servant as-<\/p>\n
\n  \n\n(i) the pay, other than special pay granted  in view of his personal qualifications, which has been sanctioned for a post held by him substantively or in an officiating capacity, or to which he is entitled by reason of his position in a cadre; and\n \n\n(ii) overseas pay, special pay and personal pay;               and\n \n\n(iii) any other emoluments which may be      specially classed  as pay by the President.\" \n \n\n<\/pre>\n
4. It has been contended before me by the petitioner  that pursuant to the Central Administrative Tribunal (Salaries and Allowances and Conditions of Service of  Chairman, Vice-Chairman  and Members) Rules 1985, Rule 6 (i) (iv) postulates that petitioner could avail extra ordinary leave without  pay and allowances up to a maximum period of 180 days in one term of office.   On the basis of the aforesaid Rule  it was contended before me  that the extra ordinary leave which was taken by the petitioner was for 39 days  and the recovery of allowances  part from the pay was contrary  to rules.   It was contended that HRA was  not a part of  pay and therefore, the recovery  made by the respondent  was illegal and unjustified.\n<\/p>\n
5. Petitioner has relied upon  the regulation of allowances in different circumstances from the compilation of  Swamy’s  FRSR Part  V HRA & CCA to butteress  his argument  that he would be  entitled to HRA allowance during  the leave period of 39 days.   The second limb of the argument of the petitioner was that  when the petitioner  was posted  at Jodhpur from 15th February, 1995 to 29.2.1996,  the registry  at Jodhpur  neither made any efforts to get a accommodation for the petitioner  nor forwarded  for approval  the rent agreement  as the petitioner  hired  private accommodation at the rate of Rs. 3000\/- per month.  It was contended   that it was incumbent  upon  the registry  of   Jodhpur Bench to obtain fair rent certificate or rent reasonability  certificate  to reimburse  the petitioner  up to Rs. 2350\/- per month pending the further processing  with the Government for payment @ Rs. 3,000\/- per month. The petitioner had no control over the functioning of the registry  of  Jodhpur Bench on the administrative side and in spite of his best efforts the registry both at Jodhpur and the Principal Bench at Delhi sat over the  proposal  for more than 1-1\/2 years.  The petitioner in such circumstances  was obliged  to pay  monthly rental @ Rs. 3000\/- from his own pocket  till 29.2.1996.\n<\/p>\n
6. My attention  has been drawn to  the Rule 12 of the  CAT (Salaries and Allowances and Conditions of Service of Chairman, Vice-Chairman & Members) Rules, 1986 which is to the following effect:\n<\/p>\n
“Accommodation. (1) Every person appointed  to the Tribunal as a Chairman, a Vice-Chairman or a Member shall be entitled to the use  of an official residence from the general pool accommodation of the type admissible to an officer of the rank of a Secretary to the Government of India stationed  at Delhi on the payment of the license fee at the rates prescribed by the Central Government from time to time.\n<\/p>\n
2.  When a Chairman, a Vice-Chairman or a Member is not provided  with or does not avail himself of the general pool  accommodation referred to in sub-rule (1) he may be paid every month an allowance of any amount equal to fifteen per cent of his pay.\n<\/p>\n
7. My attention has also been drawn to a letter dated 15.9.1995 written by Principal Bench, Central Administrative Tribunal, which is  to the following effect:<\/p>\n
\n  \n\n\" The Registrar\/Dy.Registrars \n\n  All outlying Benches of CAT \n \n\n Sub: Hiring of buildings for residential accommodation of                Hon'ble Vice Chairman\/Members.\n \n\nSir,\n \n\n<\/pre>\n
I am directed to refer to our letters  No. 7\/5\/92-JA dated 28th Oct. 1994 and of even number dated 20.2.1995 on the above subject and to say that it has been noticed that the Benches while sending their proposal for hiring private accommodation for their  Vice Chairman\/Members do not enclose Fair Rent Certificate from CPWD which causes delay in obtaining the approval of the Govt.  The Deptt. Of Personnel & Training  while granting sanction in one of the cases has observed that the proposal sent for Govt. approval after  laps of sufficient time, that too without rent reasonability certificate from CPWD causes further delay in getting clearance from Min. of Finance etc.<\/p>\n
2.  It is, therefore, requested that all such proposal which requires payment of higher rent than already agreed to by the Govt. i.e. Rs. 2500\/- pm in the case of a Vice Chairman and Rs. 2350\/- in the case of a Member should be sent to this office well in advance Along with Fair Rent-cum-Non availability of General Pool Accommodation Certificate from CPWD so that prior approval of the Govt. may be obtained for payment of higher rent.\n<\/p>\n
Yours faithfully<\/p>\n
    (RAGHUBIR SINGH) <\/p>\n
  DEPUTY REGISTRAR(JA)”\n<\/p>\n
8. On the basis  of the aforesaid letter  it was  contended before me that at the first instance the respondent ought to have reimbursed Rs. 2350\/- p.m. to the petitioner for that the letter above made specific  provision, and sent for further approval for remaining difference  between  Rs. 2350\/- and 3000\/-  to  Principal Bench at Delhi and if the same was not done,  fault cannot be fastened with the petitioner and the petitioner cannot be penalised for the same.   It was contended that  the proposal  was only sent by the registry of Jodhpur on 13.2.1996, whereas,  petitioner  had joined at Jodhpur on 15.2.95.\n<\/p>\n
9. Petitioner invited  the attention  of this Court to a representation written by him which is at 66 of the paper book.  The said representation was sent on December 21 1995,  to the then Chairman  of the Central Administrative Tribunal,  Principal Bench, after nothing was moved from the registry  at Jodhpur.  My attention has also been drawn to the copy of D.O.P.T. Letter No. A-11013\/27\/92-AT dated 17th Oct., 1994, which is at page 110 of the paper book.   The subject of the said communication  is the recommendation  of Internal Committee  of CAT on accommodation for Vice-Chairman and Members.  On the basis of the aforesaid letter it was contended before me that  the responsibility  of identifying  and hiring  a private accommodation  for Vice-Chairman and Members  was to be carried out by the Central Administrative Tribunal.   It was also contended by the petitioner that it was the responsibility  of the respondent  to take appropriate  steps for finding the accommodation and in case the accommodation was not available same was  to be hired from private sources and it was an obligation  on the part of the respondent to proceed with all the urgency and get the necessary approval  and if the same was not done or the respondent was lethargic in its approach, the petitioner cannot be held responsible  for the same.   Therefore, it was urged that the petitioner be paid  difference   between Rs. 1200\/- p.m. and Rs. 3000\/- p.m. for the period 15.2.1995 to 29.2.1996.   Lastly, the petitioner argued that he was transferred to Chandigarh  in October, 1996 and he managed  some accommodation  which was available  with him till February, 1997 and in that period the respondent paid 15% HRA in terms of the aforesaid rules to the petitioner.  However, from 1.3.1997 till 19.1.1998, when the petitioner retired, he  was not paid HRA @ 15% p.m. in terms of the rule.\n<\/p>\n
10. On the other hand, Mr. Sanjay Jain counsel appearing for the respondent has contended that  the  petitioner  cannot blow hot and cold in the same breath.  Mr. Jain has contended that the petitioner  at one stretch  has contended that the Government Rules, Fundamental Rules, CCS Rules Leave Rules shall be applicable, on the other hand, where it benefits him he relied upon the Rule of Central  Administrative Tribunal Salaries and Allowances and Conditions of Service of  Chairman, Vice-Chairman  and Members) Rules 1985.  Mr. Jain has contended that as per the aforesaid rules, Rule 6(i)(iv) specifically deals with extra ordinary leave without pay and allowances.  Counsel for the respondent has also placed reliance  on the decision of Supreme Court in the case of Director, Central Plantation Crops Research Institute, Kesaragod & Ors. Vs. M.Purushothaman & Ors. Counsel for the respondent has contended that  house rent allowance is not a part of pay but the same is covered by the definition of compensatory allowance.   If house rent allowance  is covered under the definition of compensatory allowance, it is an allowance and therefore,  when the payment is  specifically barred under the rule, same cannot be given to the petitioner.  Mr. Jain has also contended that   the petitioner  did not fulfilll  his part of the obligation  as he has not taken any steps  for taking  prior approval of the Principal Bench, Central Administrative Tribunal, Delhi, with regard to  hiring a house from a ceiling  of more than Rs. 2350\/- p.m.  It was contended  that first time  the petitioner wrote to the Chairman of Central Administrative Tribunal only on December, 1995.  It was also contended  that the recommendation of the Internal Committee which was conveyed  by  D.O.P.T. Letter No. A-11013\/27\/92-AT dated 17th October, 1994, only envisaged the case of Vice-Chairman where suitable accommodation  was not found within a carpet area of 1900 sq. ft and within Rs. 2500\/- p.m. rent ceiling.  Therefore, the petitioner  was not entitled to a monthly rent of Rs. 3000\/-.  It was also contended that  the petitioner in his representation  to the Chairman  had only requested for enhancement of the rent at the fist instance to Rs. 2350\/-.  Repelling the contention of the petitioner  with regard to payment  of HRA  @15% p.m. for the period 1.3.1997 to 19.1.1998, Mr. Jain  has contended that petitioner  was offered an accommodation which he did not take therefore,  the ratio of judgment of Supreme Court  in Director, Central Plantation Crops Research Institute, Kesaragod  (Supra)  will come into play.\n<\/p>\n
11. I have given my careful considerations to the arguments advanced by both the parties.  With regard to the first prayer of the petitioner that he was entitled for house rent allowance when he was on extra ordinary leave for 39 days, I am in agreement with the contention  of the respondent that in terms of the Rules, the extra ordinary leave was permissible as the petitioner did not have any other leave to his credit when he joined Central Administrative Tribunal from 20.1.1993 till September, 1993.  But in view of the explicit provisions in Rule 6 (i) (iv), extra ordinary leave without pay and allowances would include the allowance of house rent also.  In this regard, Supreme court in Director, Central Plantation Crops Research Institute, Kesaragod’s case  (Supra) while dealing with HRA,  held that HRA  was not part of the pay.    Supreme Court held that  HRA would be covered  by the definition of compensatory allowance as occurring in Fundamental Rule 44 as it was a compensation in view of accommodation.  If HRA is an allowance   then the Rule 6 of the Rules specifically prohibits  the grant of pay and allowance in case of extra ordinary leave.  Therefore,  I find no substance in the argument of the petitioner that he is entitled for grant of HRA  for 39 days.\n<\/p>\n
12. Adverting to the submissions made before me by the parties with regard to payment of difference between Rs.1200\/- p.m. and Rs. 3000\/- p.m.,  reliance placed by the respondents on their circular dated 17th October, 1994  which was based on internal  note of the CAT  is misplaced.  A harmonious reading  of letter of D.O.P.T.  Dated 17th October, 1994 and  15th September,1995 makes it manifestly clear that  the provision of accommodation  for Vice-Chairman and Members  was to be carried out by the Central Administrative Tribunal.  Although,  in letter dated 17th October,1994, the ceiling with regard to the  rent and the  carpet area for both Vice-Chairman and Members of the CAT has been prescribed   but  in  the event of  suitable accommodation with the prescribed carpet area and rent ceiling in case of Vice-Chairman  is not available, the proposal for hiring  was to be sent  by the concerned registry for prior approval.  That was to be done not by the Vice-Chairman or by the Member but by the Principal  Bench of the Central Administrative Tribunal.   The intention of the Central Administrative Tribunal  to apply the same  principle  as was applied  in the case of Vice-Chairman is writ large  from the letter dated 15th September, 1995.  The said letter has been quoted above. Paragraph 2 of the said letter postulates eventuality of cases where payment of higher rents are required  then what was stipulated in cases of both the Vice-Chairman and the Members of the Central Administrative Tribunal.  Therefore, I do not find  any force in the argument of the counsel for the respondent  that petitioner  was  not entitled for reimbursement of  Rs. 3000\/- as monthly rent  which was paid by the petitioner.\n<\/p>\n
13. It was contended before  me by the petitioner that letter dated 15th September, 1995 was not brought to  his notice.  Even otherwise,  the Central Administrative Tribunal  in its letter dated. 5.1.1995,which is at page no.107 of the paper book, in paragraph  1 stated that private accommodation  for Vice-Chairman and Members was to be identified  by the Bench  in consultation  with the Vice-Chairman\/Member for whom  it was to be hired.  Therefore, the   obligation   was on the registry  to forward the details  at the earliest opportunity to the Principal Bench and to the respondent\/Union of India  for appropriate action and sanction.  A person  who is discharging judicial function cannot remain on road as sanction has not come or the department is lethargic in sending the same.  If that kind of liberty is given to the respondent then it will not only adversely affect the quality of justice administered by the Administrative Tribunal but it will be a  handle in the hand of the executive  to interfere  in  day-to-day matters where hundred percent litigation is against the Government.   I do not find any force in the argument of the counsel for the respondent that it was the petitioner who had not complied with certain requirements as envisaged by the respondent.\n<\/p>\n
14. Coming to the last prayer with regard to  payment of 15% house rent allowance per month   in view of accommodation   being available  at Chandigarh, it was contended  before me by Mr. Jain  that in Director, Central Plantation Crops Research Institute, Kesaragod’s case  (Supra) it was  held by Supreme Court  that  it was obligatory on the part of the petitioner to take the accommodation offered by the respondent from the department  pool  and if the petitioner has not taken accommodation  he will not be entitled to HRA.   There is an obvious fallacy  in the argument of counsel for the respondent.  The Supreme Court in Director, Central Plantation Crops Research Institute, Kesaragod’s case (Supra), on the basis of Office Memorandum dated. 27th November, 1965, which dealt with  grant of  house rent allowance on certain conditions  has interpreted that in case such an accommodation is refused then the state Government servant  would be disentitled  to HRA.  Supreme Court in All India Judges’ Association and Ors  Vs. Union of India & Ors.   held:-\n<\/p>\n
  “It  is not necessary to repeat here what has been stated in the judgment under review while dealing with the same contentions raised there.  We cannot, however, help observing that the failure to realise the distinction between the judicial service and the other services is at the bottom of the hostility displayed by the review petitioners to the directions given in the judgment.  The judicial service is not service in the sense of ’employment’.  The  Judges are not employees.  As members of the judiciary, they exercise the sovereign judicial power of the State.  They are holders of public offices in the same way as the members of the council of ministers and the members of the legislature.  When it is said that in a democracy such as ours, the executive, the legislature and the judiciary constitute the three pillars of the State, what is intended to be conveyed is that the three essential functions of the  State  are entrusted to the three organs of the State and each one of them in turn represents the  authority of the State.  However, those who exercise the State power are the Ministers, the Legislators and the Judges, and not the Members of their staff who implement or assist in implementing their decisions.  The council of ministers or the political executive is different from the secretarial staff or the administrative  executive which carries out the decision of the political executive.  Similarly, the Legislators are different  from the legislative staff. So also the Judges from the judicial staff.  The parity  is between the political executive, the Legislators and the Judges and not between the Judges and the administrative executive.  In some democracies like the USA, members of some State judiciaries are elected as much as the members of the legislature and the heads of the State.  The Judges, at whatever level they may be, represent the State and its authority unlike the  administrative executive or the members of the other services.  The members of the other services, therefore, cannot be placed on the part with the members of the judiciary, either constitutionally or functionally.”\n<\/p>\n
15. The petitioner was performing a judicial function  as Member of the Central Administrative Tribunal.  The petitioner  was governed by rules framed under Section 10 of the Act.  Rule 12 (2) of the  CAT (Salaries and Allowances and Conditions of Service of Chairman, Vice-Chairman & Members) Rules, 1986, which is quoted above  makes is clear  that if accommodation is not provided or a  Vice-Chairman or Member does not avail himself from the pool accommodation, he shall be entitled to allowance of any amount  equal to  15 per cent  of his pay.  Even if I take into consideration that  general pool accommodation  was available  which is disputed by the petitioner  on the ground that  the same was not according to his entitlement  or status, I need not go into this controversy as the  Rule makes it abundantly clear that  even if the same is available  and if a Vice-Chairman or member  does  not avail  the accommodation, he shall be entitled to an allowance of amount  equal to 15 per cent per month  of his pay.  There is no ambiguity in the Rule. It is well known principle of law   that when the field  is occupied by statute or rule then no other interpretation  is necessary.  Therefore, the reliance  placed by the respondent on rules or notification cannot stand the test  and the scrutiny of law in terms of specific provision  made  under Rule 12(2) of the Rules for grant of 15% amount per month.\n<\/p>\n
16.  Therefore, I hold that  the petitioner succeeds with regard to his prayer  for grant of house rent allowance @ Rs. 3000\/- from the period 15.2.1995 to 29.2.1996.  The respondents are directed to make  payment of the difference of amount  within a period of eight weeks.   Similarly, petitioner is also entitled for payment of HRA @ 15 per cent  per annum from 1.3.1997 to 19.1.1998.    The same shall also be paid within a period of eight weeks.   However, I find  no force in the first submission  of the petitioner with regard to payment of HRA for a period of 39 days and that prayer of the petitioner is rejected.\n<\/p>\n
17. Parties to bear their own costs. If the amount is not paid within eight weeks, the petitioner shall be entitled to interest @ Rs. 8 per cent from the date of non-payment till payment is made.\n<\/p>\n
18. Petition is partly allowed in terms of the aforesaid directions.\n<\/p>\n
19. Rule is made absolute.<\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Mr. Nirmal Kumar Verma vs Union Of India (Uoi) And Ors. on 22 May, 2003 Equivalent citations: 105 (2003) DLT 430, 2003 (69) DRJ 555, 2004 (1) SLJ 98 Delhi, 2003 (6) SLR 791 Author: V Jain Bench: V Jain JUDGMENT Vijender Jain, J. 1. The petitioner was appointed as an Administrative […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-216688","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nMr. Nirmal Kumar Verma vs Union Of India (Uoi) And Ors. on 22 May, 2003 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/mr-nirmal-kumar-verma-vs-union-of-india-uoi-and-ors-on-22-may-2003\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Mr. Nirmal Kumar Verma vs Union Of India (Uoi) And Ors. on 22 May, 2003 - 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