Calcutta High Court (Appellete Side)

Soma Talukdar @ Bhadra vs The State Of West Bengal & Ors on 25 January, 2023

32   25.01.2023
Sc   Ct. no.22
                                        WPA 22371 OF 2022
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Soma Talukdar @ Bhadra Vs.

The State of West Bengal & Ors.

Mr. Malay Bhattacharyya ....For the Petitioner Mr. Biswabrata Basu Mallick Mr. Sayak Chakraborty.

....For the State

Affidavit-of-service, filed in Court today, is taken on

record.

An identical matter involving the same issue in the

previous writ petition, i.e., serial no.31 of today's list in

which Mr. Biswabrata Basu Mallick, learned state

advocate had appeared, this Court has rendered its

decision.

In this writ petition since none appears for the

State, Mr. Biswabrata Basu Mallick, learned State

advocate is requested to appear with a junior of his choice

and hold the brief for the State. The engagement of Mr.

Biswabrata Basu Mallick along with junior advocate be

regularised forthwith by the office of the learned

Government Pleader.

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 is 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