Calcutta High Court (Appellete Side)
Sreemoyee Kar & Ors vs State Of West Bengal And Ors on 17 August, 2022
17.08.2022
Court No.13
Item No.28
sp
WPA 17651 of 2022
Sreemoyee Kar & Ors.
Vs.
State of West Bengal and Ors.
Ms. Debjani Sengupta
Ms. Koyel Bag,
Mr. Abhijit Chatterjee,
Ms. Shahina Haque
... For the petitioners.
Mr. Sudipto Panda
Ms. Munmun Tewary
... For the State.
The writ petitioners are Assistant Teachers
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 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
2
Teachers who spouses are employed in Non-State
private organization.
As a consequence whereof, such person like the
petitioners 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 case of the petitioners which is
patently violative of Article 14 of the
3
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
petitioners 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 petitioners, within
a period of six weeks from date. Any order of
recovery still pending, shall remain automatically
stayed.
The petitioners 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, both the School authorities 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.)
