Moumita Sarkar (Samanta) vs The State Of West Bengal & Others
2023 Latest Caselaw 1352 Cal

23.02.2023
    ap
    03

                                   WPA 7803 of 2021
                             Moumita Sarkar (Samanta)
                                      - Versus -
                         The State of West Bengal & Others

                            Mr. N. C. Bihani,
                            Ms. P. B. Bihani
                            Mr. S. Ghosh
                            Mr. Soumya Mukherjee
                                         ... For the petitioner.

                            Mr. Swapan Kumar Datta, AGP,
                            Mr. Tapas Kr.Mondal
                                        ... For the State.

                            Mr. Biswajit Sarkar,
                            Mr. Amit Bikram Mahata
                                 ... For the Respondent nos.7 & 8.

The petitioner is an Assistant Professor of

Commerce at Bangabasi Morning College, Kolkata.

Her husband is working in a private organisation.

In terms of Clause 8 of Government Order No.

1306(22) - Edn (U)/EH/1U -77/17 dated December

30, 2019 issued by the Department of Higher

Education, University Branch, she was enjoying the

house rent allowance. The said Clause 8 provides as

follows:-

"Allowances:

(a) House Rent allowance - With effect from the 1st January, 2020, the house rent allowance admissible shall be 12% of his/her revised basic pay, subject to a maximum of Rs. 12,000/- per month. The ceiling of house rent allowance drawn by husband and wife together shall also be raised to Rs. 12,000/- per month.

The term basic pay in the revised pay structure means the pay drawn in the prescribed Pay Level in the Pay Matrix and does not include any other type of pay.

The existing terms and conditions of drawl of house rent allowance by an individual living in his/her own house or in a rented house shall continue to apply.

When a Government accommodation being a habitable condition in all respect with appropriate supply of water, power and toilet arrangements for individual families and such a Government accommodation is earmarked for holder of a particular post, the holder will not be entitled to house rent allowance for living elsewhere."

Subsequently, the Department of Higher

Education issued a Memorandum No.644-Edn

(CS)/3A-04/2019 dated November 11, 2020 which

provides, inter alia, as follows: -

"The undersigned is directed by order of the Governor to say, that in conformity with the Finance Department's Memo No. 8012-F(P2) dt 27.12.2018, read with Memo No. 5839-F(P) dt. 09.07.2012, the matter of granting HRA to an employee of a Sponsored/Aided Educational Institution, whose spouse is working in a private organisation, where HRA is allowed as a separate element, the HRA of the spouse shall be taken into account, as done in the case, where spouse is the employee of any Government of semi-Government organisation.

All concerned are being informed accordingly."

Following the said order dated November 11,

2020, the State started deducting the petitioner's

house rent allowance from January 2020, since her

husband, who is an employee of a private

organisation also received house rent allowance from

his employer.

The said order of November 11, 2020 was based

on a corrigendum being Memo No. 8012-F

(P2)/FA/O/2M/206/17 (N.B.) dt. 27.12.2018, issued

by the Finance Department of the State.

In this writ petition, the petitioner has, inter

alia, challenged the said order dated November 11,

2020.

It is not disputed by the parties before this

Court that the corrigendum dated December 27, 2018

has already been quashed by a coordinate Bench of

this Court by a judgment dated March 16, 2021,

passed in WPA 1389 of 2018 (Mousumi Biswas and

another vs. State of West Bengal and others).

Relevant operative parts of the said judgment

are quoted below: -

"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 non- government 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."

An appeal being MAT 1023 of 2021 (State of

West Bengal & Ors. vs. Mita Majumdar & Ors.) has

been preferred by the State against the order of the

single Bench passed in Mousumi Biswas (supra), no

stay order has been passed yet.

Thereafter, another learned Single Judge of this

Court in WPA 10009 of 2022 after taking into

consideration the order passed in Mousumi Biswas

(supra) and the pendency of the appeal, granted

similar benefits to the petitioners. The relevant

operative part of the said order dated July 18, 2022,

is quoted below:

"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.

Needless to mention, the aforesaid order shall abide by the final result of MAT No. 1023 of 2021."

I have no reason to differ with the reasoning of

the judgment delivered in Mousumi Biswas (supra).

I am of the view that the impugned Government

Order No. 644-Edn.(CS)/3A-04/2019 dated November

11, 2020, cannot be sustained as it is also based on

the corrigendum dated December 27, 2018 issued by

the Finance Department of the State which has been

quashed in Mousumi Biswas case.

The petitioner in this case is, therefore, entitled

to the house rent allowance in terms of Government

Order No. 1306(22) - Edn (U)/EH/1U -77/17 dated

December 30, 2019.

I am, however, of the view that if the State is

directed to refund the amount already recovered from

the petitioner at this stage the same may amount to

giving a final relief to the petitioner before disposal of

the pending appeal (MAT 1023 of 2021).

In that view of the matter this writ petition is

disposed of by directing the respondents not to

further recover any amount on account of the house

rent allowance from the petitioner till the disposal of

MAT 1023 of 2021. The petitioner will be entitled to

receive the house rent allowance in terms of Clause 8

of the Government Order dated December 30, 2019 as

quoted above in this judgment.

The aforesaid directions shall abide by the final

decision that may be rendered in MAT 1023 of 2021.

With the aforesaid observations, WPA 7803 of

2021 is disposed of.

There will be no order as to costs.

Urgent certified website copies of this order, if

applied for, be made available to the parties upon

compliance with the requisite formalities.

(Kausik Chanda, J.)