Bombay High Court
Maharashtra Rajya Prathamik ... vs The State Of Maharashtra And ... on 19 October, 2015
Bench: S.S. Shinde
5822.14WP
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 5822 OF 2015
Maharashtra Rajya Prathamik
Shikshak Sangh, Jalgaon
Through District President,
Mr. Raosaheb Mango Patil
Age : 45 years, Occ : Service,
R/o Utkarsha Nagar,
Gunjan Bungalow,
Dhule Road, Tq. Amalner,
Dist. Jalgaon.
..PETITIONER
-VERSUS-
1. The State of Maharashtra
Through it's Secretary,
Finance Department,
Mantralaya, Mumbai-32.
2. The Secretary,
Rural Development and
Water Conservation Department,
Mantralaya, Mumbai-32.
3. The Zilla Parishad, Jalgaon,
Tq. & Dist. Jalgaon
Through its Chief Executive Officer
4. The Education Officer (Primary),
Zilla Parishad, Jalgaon,
Tq. & Dist. Jalgaon.
5. The Block Education Officer,
Panchayat Samiti, Amalner,
Tq. Amalner, Dist. Jalgaon.
..RESPONDENTS
...
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5822.14WP
2
Advocates for Petitioner : Mr. S.P. Brahme h/f Mr. A.G.
Magare
A.G.P. for Respondent nos. 1 and 2 : Mr. V.H. Dighe
Advocate for Respondent Nos. 3 to 5 : Mr. R.N. Chavan h/f
Mr. Vijay Sharma
...
CORAM : S.S. SHINDE &
A. M. BADAR, JJ.
RESERVED ON : 13th October, 2015
PRONOUNCED ON : 19th October, 2015
...
JUDGMENT (PER S.S.SHINDE, J.) :
Rule. Rule made returnable forthwith and heard
finally by consent of the learned counsel appearing for the
parties.
2. This Petition takes exception to the impugned
Government Circulars dated 05.07.2008 and 03.11.2008
issued by the Rural Development and Water Conservation
Department, Government of Maharashtra, Mantralaya,
Mumbai i.e. Respondent No.2, and also the impugned report
dated 13th June, 2014, submitted by the Respondent No.5,
in furtherance of the impugned communication dated 14 th
March, 2014 of the Respondent No.4 and further impugned
communication dated 6th March, 2014 issued by the
respondent no.3.
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3. The petitioner claims to be the association of the
primary teachers. The members of the said association are
discharging their official duties under the control and
supervision of Respondent Nos. 2 to 5. As per the
Government policy, all of them are entitled and are drawing
the house rent. According to the petitioner, in view of the
Government Resolution dated 5th February, 1990, issued by
the Finance Department, Government of Maharashtra, the
conditions prescribed in respect of employees in the rural
areas that of residing at the place of duty for eligibility of
House Rent Allowance, has been dispensed with by clause 4
of the aforementioned Government Resolution. The said
provision is still intact. However, by way of the impugned
circular dated 5th July, 2008, the Respondent No.2 has
directed Respondent Nos. 3 and 4 to stop the payment of
house rent to those employees, who are not residing at the
place of headquarter. The learned counsel appearing for the
petitioner submits that, by issuing the circular dated 5 th
July, 2008, without superseding the Government Resolution
dated 5th February, 1990, the relaxation granted by the
aforementioned Government Resolution dispensing off the
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condition to stay at the place of duty, cannot be taken away.
In support of the contention that, the circulars cannot
override provisions of the Government Resolution, the
learned counsel appearing for the petitioner pressed into
service the exposition of the Supreme Court in the case of
Union of India & anr V/s Central Electrical and
Mechanical Engineering Service (CE & MES) Group A
(Direct Recruits) Association, CPWD & ors. 1 and also the
exposition of the Bombay High Court, Bench at Aurangabad
in the case of Santosh Ekoba Sonavane & ors V/s State of
Maharashtra & ors2 and submits that, the Petition deserves
to be allowed.
4. On the other hand, the learned A.G.P. appearing
for Respondent/State invited our attention to the averments
made in the affidavit in reply and submits that, the circulars
are issued by taking recourse to Section 248 of the
Maharashtra Zilla Parishads and Panchayat Samitis Act,
1961, and therefore, they have the statutory force, therefore,
the Petition deserves to be rejected.
1 2008 AIR (SC) 3
2 2001(1) Bom.C.R. 825
5822.14WP
5. This Petition raises short but important
question of law that, whether by issuing impugned
Government Circulars dated 05.07.2008 and 03.11.2008,
the Rural Development and Water Conservation
Department, Government of Maharashtra, Mantralaya,
Mumbai i.e. Respondent No.2, can take away the protection
granted by the Government Resolution dated 5th February,
1990, issued by the Finance Department, Government of
Maharashtra, Mantralaya, Mumbai, in favour of the
employees working in rural areas, wherein the condition
prescribed in respect of employees in the rural areas that of
residing at the place of duty for eligibility of House Rent
Allowance, is dispensed with by clause 4 of the said
Government Resolution, without superseding the
aforementioned Government Resolution and whether,
circulars dated 5th July, 2008 and 3rd November, 2008
issued by the Respondent No.2 can have overriding effect
over the Government Resolution dated 5th February, 1990 ?
6. We have heard the learned counsel appearing
for the petitioner and the learned A.G.P. appearing for the
Respondent/State. With their able assistance, we have
5822.14WP
perused the documents placed on record and, in particular,
the Government Resolution dated 5th February, 1990, issued
by the Finance Department, Government of Maharashtra,
Mantralaya, Mumbai. The introductory part of the said
Resolution reads thus :-
"Government has sanctioned rates of House Rent
Allowance to the Government employees and others
with effect from 1st April, 1988 under Government
Resolution, Finance Department, No.RPS-
1287/643/SER-10, dated the 25th April, 1988. The
demand that State Government employees and
others may be granted House Rent Allowance on the
lines of Central Government rates was under
consideration of Government. Government has
decided that the employees of the State Government,
Zilla Parishads and Government aided institutions
who are entitled for the House Rent Allowance as per
existing Government orders, shall be granted House
Rent Allowance at the rates similar to those of
Central Government employees and from the dates
mentioned in the Table under para 2 below."
7. In clause 2 of the said Government Resolution,
the House Rent Allowance admissible to the various
categories of the employees working under the State
5822.14WP
Government and under the Local Bodies etc., have been
mentioned. For the purpose of deciding the present Petition,
the clause 4 of the said Government resolution is relevant,
which reads thus :-
"4. House Rent Allowance at the above rates
shall be payable to all employees (other than those
residing
ig in Government owned/hired
accommodation) without requiring them to produce
rent receipts. These employees shall, however, be
required to furnish a certificate prescribed in
Annexure II under Government Resolution, Finance
Department, No.RPS-1287/643/SER-10, dated 25th
April, 1988, to the effect that they are incurring
some expenditure on rent/contributing towards
rent. House Rent Allowance shall also be paid to
Government employees living in their own houses,
subject to their furnishing a certificate as in
Annexure II accompanying the said resolution.
These certificates shall be produced by the
employees in the month of April each year or
whenever there is a change in the contents of the
certificate. All other conditions at present
applicable for grant of House Rent Allowance shall
continue to apply. The conditions prescribed in
respect of employees in the rural areas that of
residing at the place of duty for eligibility of House
5822.14WP
Rent Allowance shall however, be dispensed with."
(Underline supplied)
Whether the members of the petitioner -
association are entitled to take benefit of said Government
Resolution and receive the House Rent can get answer, in
para 7 of the said Government Resolution, which reads
thus:-
"7. In exercise of the powers conferred by the
proviso to Article 248 of the Maharashtra Zilla
Parishad and Panchayat Samitis Act, 1961 (Mah. V
of 1962) and all other powers enabling it in that
behalf, Government is also pleased to direct that
these orders should also be made applicable
mutatis mutandis to the full-time Zilla Parishad
employees."
It is not in dispute that, the said resolution was
made applicable to the employees working under the Zilla
Parishads and Panchayat Samitis in the State of
Maharashtra.
8. By way of issuing impugned circular dated 5 th
July, 2008, and circular dated 3rd November, 2008, issued
5822.14WP
by the Respondent No.2 and also impugned communication
dated 14th March, 2014, issued by the Respondent no.4 and
further impugned communication dated 6th March, 2014
issued by the Respondent No.3, Respondent No.2 has taken
decision to stop paying House Rent to those employees, who
are not residing at the place of duty/headquarter. As a
result of which, the house rent for which the members of
the petitioner-association and similarly situated employees
working throughout State of Maharashtra, who were
entitled, Respondents have stopped paying the house rent
and said amount has been withheld from the date of
issuance of the impugned communication dated 14th March,
2014. The relevant clause (2) of the Government Resolution
dated 5th July, 2008 reads thus :-
"2. iapk;r jkt lferhus dsysY;k oj uewn lwpuk Lohdk:u 'kklu vkrk vls
vkns'k nsr vkgs dh] ftYgk ifj"knkae/khy f'k{kd] xzkelsod] bR;knh ts deZpkjh
eq[;ky;h gtj jkgr ulrhy R;kaP;kfo:/n f'kLrHkaxfo"k;d dBksj dkjokbZ
dj.;kr ;koh- vU;Fkk] v'kk deZpk&;kafo:/n dkjokbZ u dj.;kl ts vf/kdkjh
tckcnkj vlrhy R;kaP;kfo:/n rkrMhus dkjokbZ dj.;kr ;koh vkf.k v'kk
eq[;ky;h u jkg.kk&;k deZpk&;kapk ?kjHkkMs HkRrk jks[k.;kr ;kok- mijksDr
lanHkZ dz-1 o 2 uqlkj vuqdzes f'k{kd o xzkelsod ;kaP;kiqjrs dk<.;kr vkysys
vkns'k vkrk ;k 'kklu ifji=dkUo;s ftYgk ifj"knkae/khy eq[;ky;h u
jkg.kk&;k brj loZ xV "d" o "M" e/khy deZpk&;kaukgh ykxw dj.;kr
;sr vkgsr- gs vkns'k loZ lacaf/krkaP;k fun'kZukl vk.k.;kckcr n{krk ?;koh-"
5822.14WP
(Underline supplied)
9. The true translation of the said document is as
under :-
"2. By accepting the aforementioned suggestions
put forth by the Panchayat Raj Committee, the
Government is now issuing these orders for taking
strict disciplinary action against the teachers of
Zilla Parisahd, Gramsevak and the employees
who do not remain present at their head-quarters.
Otherwise the Officers who are not taking action
against such employees will be held responsible
and immediate action shall be taken against them
and House Rent Allowance of such employees who
do not stay at their headquarters should be
stopped. The above referred orders issued at
serial Nos. 1 and 2 which were confined to
Teachers and Gramsevak are now applicable by
this Government Circular to all the employees of
group "C" and "D" who do not stay at their
Headquarters. Due care be taken to bring into
the notice of all the concerned scrupulously."
(Underline supplied)
10. We have carefully perused the averments in the
affidavit in reply and additional affidavit filed by Respondent
Nos. 1 and 2. So far the aforementioned Government
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Resolution of 1990, is concerned, it is stated that, the
Government by its corrigendum dated 30th November, 1990
referring to Government Resolution dated 25th April, 1988,
has stated about how to calculate the house rent allowance
and compensatory local allowance in which Government
has directed that, the basic pay is defined in Rule 9(36)(I) of
the Maharashtra Civil Service (Pay) Rules, 1981, on that
basis pay of the house rent allowance and compensatory
local allowance should be calculated. Hence the issue raised
in this Writ Petition & the above corrigendum dated 30 th
January, 1990, and referring Government Resolution dated
25th April, 1988, are not co-related, the house rent
allowance is not part of basic pay as defined in the above
rule no.9. It is further stated in para 10 that, as per Rural
development Department's letter dated 2nd September, 2015,
the Government circular of Finance Department dated 24 th
April, 1988 and 5th February, 1990, clarified about how to
allow house rent allowance. There is no compulsion for
employee to reside at headquarter, but as per Section 248 of
Maharashtra Zilla Parishad and Panchayat Samiti Act, 1961
(Regulation Rule No.5 of 1962), it is implemented to
employee of Zilla Parishad. It is also clarified that, if the
5822.14WP
department has decided the compulsion to reside the
employee at their head quarter, the department can make
such rule, for better administration and implementation of
schemes for the benefit of rural people, therefore, the Rural
Development department has taken a decision by the
circular dated 5th July, 2008, 3rd November, 2008 and 14th
November, 2000.
11. It is true that, if Respondent No.2 wants to
frame the statutory rules or to add or delete any rule,
regulating the service conditions of the employees, the
Section 248 of the Maharashtra Zilla Parishad and
Panchayat Samiti Act, 1961 enables Respondent No.2 to
take such steps. The provisions of Section 248 of the
Maharashtra Zilla Parishads and Panchayat Samitis Act,
1961 reads thus :-
"248. Recruitment and conditions of service of
persons serving the Zilla Parishad.-
Subject to the provisions of this Chapter, the
State Government may make rules regulating-
5822.14WP
(a) the recruitment (including reservation for
Scheduled Castes and Scheduled Tribes and
Backward Classes), functions, and terms and
conditions of service (including payment of dearness
allowance and all conduct and disciplinary matters) of
persons appointed to the District Technical Service
(Class III), District Service (Class III) and District
Service (Class IV), and
(b) the payment to be made by the Zilla
Parishad towards pension, gratuity and other benefits
as respects officers and servants who have been
serving any existing board and who become servants
of the State Government, or the payment to be made
to the State Government towards such matters in
respect of State Government servants who have
become members of the services under Zilla
Parishad :
{Provided that, if the State Government
considers it expedient so to do, it may also regulate
the conditions of service as respects pay-scales,
dearness and other allowances, leave, pension,
provident fund or any other matter in relation to
conditions of service, by a general or special order.}"
However, in the present case, it is not the case
of Respondent No.2 that, the statutory rules are framed by
invoking the aforementioned provision, and by virtue of said
5822.14WP
rules by superseding said Government Resolution, the
condition dispensed with in clause 4 of the the Government
Resolution dated 5th February, 1990, for the employees
residing in the rural areas to stay at the place of
duty/headquarters, has been recalled. However, the
Respondent No.2 has issued circulars and not framed any
rule, and therefore, the circulars cannot override the
provisions of the Government Resolution dated 5th February,
1990, issued by the Finance Department of Government of
Maharashtra when said Government Resolution is still
intact and not superseded by any subsequent Government
Resolution, or its effect has not been nullified by bringing
the statutory rules or amending said Government
Resolution therefore, clause 4 of the aid Government
Resolution would remain in force. The Government
Resolution dated 5th February, 1990 operates as an
agreement between the employer i.e. Zilla Parishad as its
employee and its terms cannot be changed to the detriment
of the employees unilaterally.
12. Apart from legal provision discussed
hereinabove, the members of the petitioner association have
5822.14WP
placed on record the copies of documents showing that,
they are residing at the place of headquarter. However, it
appears that, the Respondent Authorities have proceeded in
haste and stopped the house rent allowance on the ground
that, members of the petitioner association are not residing
at the place of headquarter, which is not proper and same is
contrary to the provisions in clause 4 of the Government
Resolution referred hereinabove.
13. In that view of the matter, we hold and declare
that, as long as, the said Government Resolution is intact
and the conditions to stay at the place of duty is dispensed
with, in favour of the employees working in the rural areas
under the establishment of Respondent Nos. 2, 3 and 4, in
view of the clause 4 of the said Government Resolution the
said protection cannot be taken away by the impugned
circulars and communications. In that view of the matter,
the members of the petitioner association and all other
similarly situated employees covered by aforementioned
Government Resolution dated 5th February, 1990,
throughout the State of Maharashtra, who are working in
rural areas are entitled for house rent even though they are
5822.14WP
not staying at headquarter/place of duty. Therefore, that
part of the circular dated 5th July, 2008 and the
communication dated 14th March, 2014 and 6th March,
2014, i.e. employees who are not residing at the place of
headquarter, their house rent should be stopped, stand
quashed and set aside. The employees in rural areas
working under the control and supervision of Respondent
Nos. 2 to 5 throughout the State of Maharashtra, covered by
clause 4 of the aforesaid Government Resolution dated 5 th
February, 1990, who are entitled for house rent, their house
rent cannot be stopped on the ground that, they are not
residing at headquarters relying upon impugned circulars
and communications. Accordingly, we direct the
respondents to disburse the withheld amount towards
house rent as expeditiously as possible but within four
weeks from today and continue to pay the same regularly.
14. The Writ Petition is partly allowed. Rule made
absolute in above terms. The Writ Petition stands disposed
of with above observations.
Sd/- Sd/-
( A. M. BADAR, J. ) (S.S. SHINDE, J.)
...
SGA/-
