Calcutta High Court (Appellete Side)
Smt. Mitali Sarkar vs The State Of West Bengal & Ors on 10 August, 2022
10.08.2022
ct no. 13
Sl No.23
ap
W.P.A. No. 15508 of 2022
Smt. Mitali Sarkar
-Versus-
The State of West Bengal & Ors.
Mr. Ratul Biswas,
Mr. Kaushik Chowdhury,
Mr. Ishan Bhattacharya.
....for the petitioner
Mr. Raja Saha,
Ms. Piyali Sengupta.
.......for the State
Affidavit-of-service filed in Court today be
taken on record.
The writ petitioner is an Assistant Teacher
under the State. The subject matter of challenge is
Memo No. 5839-F(P) dated July 9, 2012 and
Corrigendum dated December 27, 2018, issued by
the Secretary, Finance Department, Government
of West Bengal and the Memo No. 68-
ES/Audit/12A-47/17 dated November 16, 2017,
issued by the Special Secretary, School Education
Department, Government of West Bengal.
House Rent Allowance paid to Assistant
Teachers under the State is normally linked to the
HRA paid to their spouses who are also employed
with the State Authority. The object is to ensure
2
that a double benefit of HRA is not availed by a
couple staying under the same roof.
The impugned memos however, sought to
apply the said rule even to those Assistant
Teachers who spouses are employed in Non-State
private organization.
As a consequence whereof, such person like
the petitioner are either denied HRA or allowed the
same only to a limited extent under a ceiling. The
issue was gone into and addressed in great detail
by a Co-ordinate bench of this Court. A series of
writ petitions were heard on the issue, and
judgment was delivered inter alia, in WPA 1389 of
2018 (Mousumi Biswas and another vs. State of
West Bengal and others) on March 16, 2021.
"48. Therefore, to summarize the key takeaways of
the findings of the Court, the same is stated as
follows:
a) The Audit Memo dated November 16, 2017
and Memo No. 2554/G-SE dated December
28, 2017 are held to have been issued without
authority of law and is set aside on the
grounds of being issued on irrelevant
considerations and being manifestly
arbitrary/discriminatory, in effect as per the
law laid down in Subhasis Negel (supra).
b) Pertaining to the State‟s access to limited
pool of resources which necessitated this
purported rejig of policy in the first place, such
argument stands self-demolished for the
reason that employees of State aided colleges
and universities are getting the full benefits of
drawal of HRA, notwithstanding that their
spouses might be engaged in private
employment. With a lack of a certain
legitimate objective being met by the State,
this therefore, becomes a clear case of
unreasonable classification and hence is
violative of the tenets of equality enshrined
under Article 14 of the Constitution of India.
c) Notwithstanding the unreasonable
classification which was carried out in the
3
case of the petitioners which is patently
violative of Article 14 of the Constitution of
India, no technical or expert findings or
relevant factors had been furnished by the
State Respondents to justify the need for the
alleged modification of such policy concerning
the drawal of HRA, by the petitioners. There is
no demonstration as to the extent of fiscal
prudence sought to be achieved by the State
by purportedly bringing into consideration the
HRA of the spouses (engaged in private
employment) of those employees who are
serving in nonGovernment/Aided/Sponsored
educational institutions, to trigger the
common ceiling under the ROPA
Memorandum of 2009 and thereby specifying
the quantum of funds saved, by the public
exchequer. Therefore, such an irregular policy
decision merits an interference of this Court as
per the principles laid down in Subhasis Negel
(supra) and Federation of Railway Officers
Association (supra).
d) The impugned, clarificatory Corrigendum
dated December 27, 2018 read with the
Finance Department Memo No. 5839-F(P)
dated July 9, 2012 is applicable in the matters
of grant of HRA to a state government
employee, who are governed by the altogether
separate West Bengal Service (ROPA) Rules,
2009 issued vide Memo No. 1691-F dated
February 23, 2009 and for the self-same
reason, it is inapplicable to the category of
employees employed in nongovernment
sponsored institutions, who are governed by
the ROPA Memorandum of 2009 for Non-
Governmental Educational Institutions, issued
by Memo. 46-SE(B) dated February 27, 2009.
e) The impugned, clarificatory corrigendum
dated December 27, 2018 (which was issued
post the initiation of the present litigation) in
so far as it is inconsistent by including within
its ambit employees who are serving in non-
Government/Aided/Sponsored educational
institutions is liable to be struck down for
being violative of the Finance Department
Memo No. 5839-F(P) dated July 9, 2012. The
impugned, clarificatory corrigendum could not
have risen above its source and is accordingly
set aside to such degree of inconsistency as
aforesaid.
49. In view thereof, the State Respondents are
hereby directed to ensure complete conformity in
the payment of HRA which is payable to the
petitioners in accordance with the ceiling
envisaged in the ROPA Memorandum of 2009
which is applicable to them along with any
connected memos, that maybe applicable. If in any
case, the payment of such HRA has been stopped
in pursuance of the Audit Memo dated November
16, 2017, Finance Department Memo No. 5839-
F(P) dated July 9, 2012, and Memo No. 2554/G-SE
dated December 28, 2017 or other similar memos
that have been issued by the various District
Inspectors of Schools (S.E) across the State of West
Bengal, the arrears of the same must be paid to
the petitioners within six weeks from the date of
this judgment."
Counsel for the State would argue that an
appeal has been preferred by the State being
MAT No. 1023 of 2021 against the said
judgment and order, which is since pending.
The said judgment dated 16th March, 2021, has
not been stayed by the Division Bench.
The said judgment is therefore in force and
holds good even as on date.
This Court is in complete agreement with
the views expressed by His Lordship of a Co-
ordinate Bench in the case of Mousumi Biswas
(supra).
In that view of the matter, this Court directs
the State to first release HRA benefits to the
petitioner in terms of the applicable rules
(excluding the impugned Memos), together with
complete arrears till date. Any recoveries already
made, shall be refunded to the petitioner, within a
period of six weeks from date. Any order of
recovery still pending, shall remain automatically
stayed.
The petitioner shall continue to receive HRA
as if the impugned Memos are not in force.
Needless to mention, the aforesaid order
shall abide by the final result of MAT No. 1023 of
2021.
For the purpose of complying with the
aforesaid order, the School authority shall
forthwith send appropriate requisition/bills
and/or calculations to the D.I. of Schools, who
shall release payment, within the time stipulated
hereinabove.
With the aforesaid observations, the writ
petition shall stand disposed of.
There shall be no order as to costs.
All parties shall act on the server copy of
this order duly downloaded from the official
website of this Court.
(Rajasekhar Mantha, J.)
