Jayasankar M.N. vs Uoi & Ors.
2009 Latest Caselaw 4655 Del

i.17
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                        Date of Decision : 16th November, 2009

+                        W.P.(C) 7582/2009

       JAYASANKAR M.N.                     ..... Petitioner
                Through:      Ms.Jyoti Singh, Advocate.

                   versus

       UOI & ORS.                 ..... Respondent
                 Through:     Ms.Barkha Babbar, Advocate.

       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MR. JUSTICE SURESH KAIT

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

     2. To be referred to the Reporter or not?                No.

     3. Whether the judgment should be reported in the
        Digest?                                        No.


PRADEEP NANDRAJOG, J. (ORAL)

1. Rule DB.

2. Heard for disposal.

3. The issue raised by the writ petitioner is squarely

covered, if not by the decision dated 15.5.1995 disposing of

WP(C) No.308/1994, at least the decision dated 26.10.2003

disposing of WP(C) No.7391/2001.

4. The issue pertains to release of HRA and CCA to the

petitioner.

5. Similar issue was raised in the two earlier writ

petitions and the decision in both was in favour of the two writ

petitioners.

6. Pertaining to the stand taken by the respondents

that where the employee, on transfer-posting, is posted to a

Unit outside Delhi, but remains attached to the Headquarters,

no HRA or CCA is payable, in WP(C) No.7391/2001 it was

observed as under:-

"We find no substance in the stand taken by respondent No.2 which represents his persistent though useless effort to resort to technicalities. It goes without saying that petitioner was attached to the Control Room of the Home Ministry under the orders of respondents and he continues to remain so attached till date. His transfer on paper to Rampur along with his 8th Bn. may be dictated by administrative convenience but that does not detract from the fact that he was admittedly discharging his duties at Delhi due to his attachment there. Therefore, if he was entitled to allowance for serving in Delhi previously, he was equally entitled now. His transfer to Rampur on paper was of no consequence and would not deprive him of these allowances which flowed from his service at Delhi. The stand of R-2 that these allowances were attached to his headquarter which had shifted to Rampur is fallacious. We fail to appreciate that if his transfer could be ordered on paper why can't his headquarter be treated at Delhi temporarily on paper to rectify the anomalous position which is more of R-2's making and to set the record straight. R-2 enjoys the requisite power to do so and was also required by R-2 to act on this but still he appears to be guided by his own unrealistic approach."

7. Time to note the facts.

8. In March 1999, the petitioner was posted to the 94 th

Bn. but was attached to the Directorate EDP Cell at Delhi. In

simple man's parlance, there was a hiatus between the place

where the petitioner was posted as per paper and the place

where he was required to actually work.

9. In June 2000, the petitioner was permanently

attached and posted at the Directorate EDP Cell at Delhi.

10. Since attachment and the posting was at Delhi, the

respondents had no problem in releasing HRA and CCA to the

petitioner as per Rules applicable; needless to state, Delhi

being a metropolitan city, the two allowances were released as

per rates applicable.

11. In August 2003, the petitioner was issued a

promotion-cum-posting order. He was promoted to the post of

Inspector and was posted to the 126 th Bn.

12. The place where the 126th Bn. was stationed is not

known but immediately thereafter, after the promotion-cum-

posting order was issued, on 28.8.2003, an office order was

issued requiring the petitioner to continue to serve at the

Directorate EDP Cell for a period of 6 months.

13. In terms of the said order, the petitioner was

retained at Delhi and was made to work at the Directorate of

EDP Cell.

14. The petitioner, under orders passed by the

employer continued to remain at Delhi till 24.9.2007, when

formal orders relieving him from Delhi were issued. But, HRA

and CCA benefit was denied with effect from 10.9.2003.

15. Various representations made by the petitioner

were rejected. We note that the first order rejecting the claim

for release of CCA and HRA is dated 19.9.2005.

16. Declining relief, the respondent informed the

petitioner as under:-

"The case for grant of HRA/CCA to the above personnel has been, examined in consultation with Dy.F.A., and the competent authority has passed the following orders:-

(i) Consensus emerged that rules cannot be violated if personnel do not go at their actual place of posting and remain attached at a particular place.

(ii) Paper transfer approach be dissuaded. Office personnel should physically move at the actual place of posting on their transfer orders. Thereafter, if the need be, they can be attached for short spells not exceeding 180 days as per SR 73 Rules.

(iii) Persons who want to be de attached be allowed to go back to their respective units/offices etc."

17. Suffice would it be to state that the insistence by

the respondent, on the issue of denial of HRA and CCA on the

premise that whosoever is posted out of Delhi is not entitled to

the said allowances, is contingent upon the concomitant duty

imposed upon the respondent to release the person concerned

from the City of Delhi to enable him to join the place where the

person concerned is posted.

18. Indeed, the respondent is conscious of the fact that

paper posting orders are meaningless unless they are followed

up by action, evidenced by sub-para (ii) extracted in para 16

above.

19. The reason given by the respondent to reject the

claim by the petitioner, as noted in para 16 above, itself shows

that the respondent is conscious of the fact that paper transfer

approach has to be dissuaded and that the personnel should

physically move to the place of posting on the transfer order

being issued.

20. But, this is the obligation of the respondent.

Needless to state, the employees of the respondent have no

say in the transfer, posting and relieving orders.

21. Since the issue raised has been already settled

against the respondent in the two writ petitions earlier filed,

and as noted above, we allow the writ petition and issue a

mandamus to the respondents to release, within 3 months,

HRA and CCA to the petitioner for the period 10.9.2003 till

24.9.2003.

22. No costs.

PRADEEP NANDRAJOG, J.

NOVEMBER 16, 2009                 SURESH KAIT, J.
Dharmender