Calcutta High Court (Appellete Side)
Soumi Sen (Mitra) vs The State Of West Bengal & Others on 16 May, 2023
16.05.2023
AKG
06
Ct. 238
WPA 9273 of 2021
Soumi Sen (Mitra)
- 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. Dey
... For the State.
The petitioner is an Assistant Professor of
English at Mahadevananda Mahavidyalaya, North 24
Parganas. 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
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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."
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Following the said order dated November 11,
2020, the State started deducting the petitioner's
house rent allowance. The petitioiner was paid her
salary along with House Rent Allowance from January
2020, till April, 2020 at the old scale. From the month
of May, 2020 to December, 2020, the petitioner was
being paid her salary at the revised scale and the
House Rent Allowance was being paid to her in full.
However, from January, 2021, she is not getting
House Rent Allowance, 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).
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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
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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
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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 9273 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.)
