Calcutta High Court (Appellete Side)
Anwesha Ghosh vs State Of West Bengal And Others on 18 July, 2022
18.07.2022
Court No.13
Item No.61
pk
WPA 10011 of 2022
Anwesha Ghosh
Vs.
State of West Bengal and others
Mr. Debjani Sengupta,
Ms. Shabina Haque,
Ms. Koyel Bag,
Mr. Abhijit Chatterjee
....for the petitioner
Mr. Bhaskar Prasad Vaisya,
Mr. M.K. Ghosh
....for the State.
Mr. S.K. Halder,
Mr. Diwaja Pattanayak
....for the respondent nos.6 and 7
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 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 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 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 petitioner shall continue to receive HRA as if
the impugned Memos are not in force.
The petitioner shall furnish afresh necessary particulars
relating to her husband's employment and House Rent
Allowance to the School within a period of one week thereof.
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.)
