Rajni Devi vs Union Of India & Ors.
2009 Latest Caselaw 3235 Del

*                   HIGH COURT OF DELHI : NEW DELHI

                 Judgment reserved on : August 12, 2009
                 Judgment delivered on : August 18, 2009

+                            W.P. (C) No.7132/2008
                              C.M. No.13781/2008

%      Rajni Devi                                 ...   Petitioner
                        Through:   Mr. Pradeep Dahiya, Advocate.

                                     versus

       Union of India & Ors.                        ...   Respondents
                   Through:        Mr. S. Singh, Advocate for Respondent
                                   No. 1.
                                   Mr. Vimal Goyal, Advocate for
                                   Respondent No. 2 to 4.
CORAM:

HON'BLE MR. JUSTICE SUNIL GAUR

1.     Whether the Reporters of local
       papers may be allowed to see
       the judgment?

2.     To be referred to Reporter or not?

3.     Whether the judgment should be
       reported in the Digest?

SUNIL GAUR, J.

1. House Rent Allowance (HRA) inadvertently paid to the

Petitioner is sought to be recovered by the Respondents, in

pursuance to the Audit Objection. Petitioner is Hostel Warden,

National Bal Bhawan, since October, 1996 and she had been drawing

the House Rent Allowance, despite the fact that she was residing with

her husband in Government accommodation allotted to her husband,

who was also in Government service.

W.P. (C) No.7132/2008 Page 1

2. Petitioner had made representation against the recovery of the

inadvertent payment of House Rent Allowance to her and her

representation stood rejected vide Annexure P-13. Request of the

Petitioner to place this matter before the Board of Management of the

Respondent also stood declined vide impugned order of 8th May,

2007 (Annexure P-21).

3. Aforesaid impugned orders (Annexure P-13 and Annexure P-

21) are assailed in this petition on the ground that there is no

concealment of any information on the part of the Petitioner as she

had disclosed about her place of residence at Rajya Sabha Niwas, to

the Respondent. According to the Petitioner, the impugned

memorandum (Annexure P-13) does not disclose the reasons for

rejection of her representation and it is the case of the Petitioner that

refusal by the Respondents to place this before the Board of

Management of the Respondent is arbitrary and illegal.

4. Petitioner claims that in good faith, she was under the

impression that she was entitled to the House Rent Allowance and

learned counsel for the Petitioner has drawn attention of this court to

the office noting (Annexure P-18) to show that it is not a case of

concealment and it is asserted that the benefit once granted cannot

be withdrawn with retrospective effect.

5. The stand of the Respondents is that in July, 2003, the

Respondent came to know that the Petitioner was residing with her W.P. (C) No.7132/2008 Page 2 husband who was allotted Government accommodation, and vide

memo of 23rd July, 2003, her explanation was sought and the reply

given by the Petitioner was mixed up with other papers and could not

be processed further by the Drawing And Disbursing Officer and

Petitioner continued to draw the House Rent Allowance. However, in

July, 2005, Central Audit found that House Rent Allowance paid to

the Petitioner was irregular and the Respondent was asked to

recover over paid amount of House Rent Allowance of Rs.1,19,168/-

and accordingly, recovery process was started and Petitioner's

representation was rejected as there could be no waiver of the

irregular amount of House Rent Allowance paid to her. It was

conveyed to the Petitioner that payment of House Rent Allowance to

her was in contravention of Ministry of Finance OM No.21011/13/87-

E.II(B) dated 20.12.1989. According to the Respondents, this petition

merits dismissal.

6. Both the sides have been heard and the material on record and

the decisions cited have been perused.

7. The present case may not be of deliberate concealment but the

question herein is of entitlement. When the Petitioner is residing with

her husband in a Government accommodation allotted to her

husband, then how she is entitled to the House Rent Allowance?

This, the Petitioner fails to explain. Reliance has been placed by the

Petitioner upon a decision in 'Shyam Babu Verma & others v. Union

W.P. (C) No.7132/2008 Page 3 of India and others' (1994) 27 Administrative Tribunal Cases 121,

wherein higher pay scale was erroneously given a decade ago and in

the facts of that case, it was held that it was not just and proper to

belatedly recover the excess amount, which was marginal one.

Similarly, in ' Sahib Ram v. State of Haryana and others' (1995)

Supp. (1) SCC 18, excess payment upon up-gradation of pay scale

was given due to wrong construction of relevant order and in such a

circumstance, Department was restrained from recovering the

payment already made. In an unreported decision in C.W. No.1565 of

1999, this Court on 21st August, 2001, had exercised its discretion to

waive of the recovery of Rs.8,000/- towards the House Rent

Allowance as the employee was posted at a hard Station. However, it

was clarified that this would not be treated as precedent. In 'State of

Karnataka and another v. Mangalore Teaching Employees

Association' (2002) 3 SCC 302, on the special facts of that case,

University employees were protected against the move to recover

excess payment made up to 31st March, 1997.

8. It is, thus, apparent that the aforesaid decisions relied upon by

the Petitioner do not advance the case of the Petitioner in any

manner whatsoever as in none of these decisions, it has been held

that inadvertently made payments cannot be retrospectively

recovered. Present case is not of belated recovery of the allowance

inadvertently paid. Although, in the impugned order (Annexure P-21)

W.P. (C) No.7132/2008 Page 4 the reasons for rejection of Petitioner's representation have not been

spelt out, but they find mention in Annexure P-18, which the

Petitioner is not able to meet. No extra-ordinary or special

circumstances exists warranting waiver of House Rent Allowance

inadvertently paid to the petitioner. Since the Petitioner is not able to

justify to the payment of House Rent Allowance made to her, she has

no reasonable justification to retain it. Therefore, no fault can be

found in order (Annexure-13) directing recovery of the House Rent

Allowance paid to the petitioner. Therefore, impugned order,

(Annexure P-21), does not suffer from any arbitrariness or illegality.

9. Consequentially, this writ petition as well as pending application

are dismissed. No costs.

Sunil Gaur, J.

August 18, 2009
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W.P. (C) No.7132/2008                                                  Page 5