Ku. Rita Sadashiv Kumbhare @ Mrs. ... vs The State Of Maharashtra Through ...
2017 Latest Caselaw 5116 Bom

                                                        1                   J-WP-1244-15.odt

             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       NAGPUR BENCH, NAGPUR

                         WRIT PETITION NO.1244 OF 2015

 Ku.Rita Sadashiv Kumbhare
 @ Mrs.Rita Ramesh Nimje,
 Aged : 36 years having R/o C/o
 P.B. Dhawade, Shikshak Colony,
 Takiya Ward, Bhandara,

 Having temporary address at 
 C/o Nilkantha Lanje, Pragati Colony
 Shendurwafa, Tq. Sakoli, 
 Dist. Bhandara.                                                  ..... PETITIONER

                                 ...V E R S U S...

 1. The State of Maharashtra,
    through The Secretary,
    Dept. of Education, Mantralaya,
    Mumbai - 32.

 2. The Dy. Director of Education,
    Nagpur Region, Nagpur,
    Opp. Morris College, 
    Sita Buldi, Nagpur 440001.

 3. The Education Officer (Sec),
    Zilla Parishad, Gondia.

 4. Head Master,
    Rameshwardas Jamnadas Lohiya
    Secondary and Higher Secondary
    School, Soundad, Tq. Sadak Arjuni,
    Dist. Gondia.

 5. The Lohiya Education Society,
      Soundad, Tq. Sadak Arjuni,
      Dist. Gondia, through its
      Secretary.                                                  ... RESPONDENTS
 -------------------------------------------------------------------------------------------
 Shri M. M. Sudame, Advocate for the petitioner.
 Shri K. L. Dharmadhikari, AGP for the respondent Nos.1 to 3.
 Shri S. C. Mehadia, Advocate for the respondent Nos.4 and 5.
 -------------------------------------------------------------------------------------------




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                                CORAM:-    
                                           SMT. VASANTI  A  NAIK &
                                            ARUN D. UPADHYE, JJ.

DATED :-

27/07/2017.

ORAL JUDGMENT : (Per Smt. Vasanti A Naik, J.)

By this writ petition, the petitioner has sought a

direction against the respondents to grant house rent allowance and

special allowance to the petitioner from 01/08/2012 onwards. The

petitioner has challenged the order of the education authorities

directing that the house rent allowance should not be paid to the

petitioner as the petitioner is not residing at her headquarters.

2. The petitioner was appointed as shikshan sevak in the

respondent No.5-school, on 31/07/2009. After completing the tenure

of three years as a shikshan sevak, the petitioner was appointed as an

assistant teacher with effect from 27/07/2012. According to the

petitioner, the petitioner was entitled to house rent allowance with

effect from 01/08/2012 after she was appointed as an assistant teacher

in the respondent No.5-school. It is stated that however, on the basis of

an enquiry conducted by the education officer on the directions of the

deputy director of education, it is stated on behalf of the respondents

that the petitioner would not be entitled to claim house rent allowance

as she was not residing in 'Soundad', which was her headquarters and

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was residing at Bhandara. Being aggrieved by the refusal on the part of

the respondents to pay house rent allowance and special allowance, the

petitioner has filed the instant petition.

3. Shri Sudame, the learned counsel for the petitioner

submitted that in the order appointing the petitioner to the post of

assistant teacher, a condition requiring the petitioner to stay at the

headquarters is wrongly inserted. It is submitted that the appointment

order needs to be issued in the form under rule 9(5) of the Maharashtra

Employees of Private Schools (Conditions of Service) Rules, 1981. It is

submitted that the form prescribed in Schedule-D under Rule 9(5) does

not provide for such a condition. It is submitted that the insertion of

the condition to the aforesaid effect would be bad in law.

It is then submitted that the petitioner was residing only at

a distance of six and half kilometers from Soundad and, therefore, the

said fact could not have been considered while rejecting the claim of the

petitioner for house rent allowance. It is submitted that when the State

Government had issued a government resolution that the husband and

the wife would not be entitled to claim separate house rent allowance,

if they reside together in one house, the said government resolution is

stayed in Writ Petition No.903/2001. It is stated that in view of the stay

granted by the High Court in Writ Petition No.903/2001, the State

Government has issued a government resolution on 9 th September, 2004

that the house rent allowance could be paid to each of the spouses. It is

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submitted that in view of the government policy, as reflected in the

government resolution dated 9th September, 2004, the petitioner would

be entitled to claim separate house rent allowance though her husband

is receiving the house rent allowance from the government exchequer,

being an assistant teacher. It is submitted that the house rent allowance

cannot be claimed by the employee, to whose spouse a government

quarter is allotted but since a government quarter is not allotted in this

case, the petitioner would be entitled to claim separate house rent

allowance.

4. Shri Dharmadhikari, the learned Assistant Government

Pleader appearing on behalf of the respondent Nos.1 to 3, has opposed

the prayer made in the writ petition. It is submitted that it was

necessary for the petitioner to stay at the headquarters, specially when

the petitioner was posted at Soundad, which is a naxalite area. It is

submitted that on enquiry, the education officer has found that the

petitioner was not residing at Soundad which was her headquarters.

The learned Assistant Government Pleader sought for the dismissal of

the writ petition.

Shri Mehadia, the learned counsel for the respondent

Nos.4 and 5 submitted that the petitioner would not be entitled to the

relief claimed. It is submitted that in the appointment order of the

petitioner, it was clearly mentioned that the petitioner should reside at

the headquarters at Soundad but the petitioner was not residing at

5 J-WP-1244-15.odt

Soundad and was residing at Bhandara. It is submitted that the report

of the education officer also clearly shows that the petitioner was not

residing at the headquarters. It is submitted by taking this Court

through the government resolution dated 6th August, 2002 that the

teachers appointed in the schools that are situated in the naxalite

affected areas or the adiwasi areas would be entitled to the special

allowance but the said teachers would be required to reside at the

headquarters, at all times. It is stated that clause (9) of the government

resolution dated 6th August, 2002 clearly provides that an employee

cannot leave the headquarters located in the naxalite area or the tribal

area without securing the prior permission of the superiors. It is

submitted that since the petitioner was not residing at Soundad and was

residing outside the naxalite area and not at her headquarters, she was

not entitled to claim either the house rent allowance or the special

allowance that is provided to the employees residing in naxalite or

tribal areas by the government resolution dated 6 th August, 2002. It is

submitted that apart from the fact that it was necessary for the

petitioner to reside at the headquarters in view of the government

resolution dated 6th August, 2002, the petitioner would not be entitled

to seek house rent allowance for an additional reason. It is submitted

that the husband of the petitioner who is working as an assistant

teacher at Bhandara is also receiving house rent allowance and the

petitioner cannot seek separate house rent allowance when they are

6 J-WP-1244-15.odt

residing under one roof. The learned counsel relied on the judgment of

this Court, reported in 2007 (2) Mh.L.J. 543 to substantiate his

submission.

It appears that while appointing the petitioner as an

assistant teacher in the year 2012, a condition was inserted in the

appointment order that the petitioner should not leave the

headquarters. The petitioner accepted the appointment order without

any demur. However, it is noticed by the respondent Nos.4 and 5 that

the petitioner was not residing at the headquarters and when an

independent enquiry was conducted by the education officer to find out

whether the petitioner was residing at the headquarters, it was found

that the petitioner was not residing at Soundad and was residing

elsewhere. It is thus apparent that despite the condition in the

appointment order, the petitioner was not residing at the headquarters

and she had also not sought permission of the superiors for residing

away from the headquarters. The petitioner would not be entitled to

claim house rent allowance if she was not residing at the headquarters.

We do not find any merit in the submission made on behalf of the

petitioner that it was not correct on the part of the respondent Nos.4

and 5 to insert a condition in the appointment order issued under

Section 9 (5) of the Rules of 1981 when a specific form of the

appointment order is prescribed under Schedule-D appended to the Act

and the Rules. The appointment order issued to the petitioner is as per

7 J-WP-1244-15.odt

the Form prescribed under Schedule D in terms of Rule 9 (5) of the

Rules except the insertion of the condition. We find that the said

condition is inserted in the appointment order in view of the resolution

dated 6th August, 2002. The government resolution dated 6 th August,

2002 on which the petitioner has relied on for seeking special allowance

for residing in the naxalite affected area stipulates that it would be

necessary for the employee posted in a naxalite affected area or the

tribal area to remain at the headquarters at all times. It is further

mentioned in Clause (9) of the government resolution that it would not

be permissible for the employee to leave headquarters without the

permission of the superiors. In this background, it cannot be said that

the insertion of such a condition in the appointment order of the

petitioner is bad in law. The condition was inserted in the appointment

order with a view to make it known to the petitioner that she was

supposed to remain at the headquarters at all times. It is not disputed

that the school of the respondent Nos.4 and 5 at Soundad, is situated in

the naxalite affected area. The petitioner was not residing at Soundad

though she was supposed to reside there. If that is so, the petitioner

cannot claim special allowance that is provided as per the government

resolution dated 6th August, 2002 to the employees that are serving in

naxalite affected areas and tribal areas.

Since the petitioner was not residing at 'Soundad'

despite a condition in that regard in her appointment order she was not

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entitled to claim house rent allowance, as also the special allowance, in

view of the condition in government resolution dated 06/08/2002.

Hence we dismiss the petition, with no order as to costs.

                      JUDGE                               JUDGE


 Choulwar