Delhi High Court

Brijesh Narayan Singh vs Uoi And Ors on 24 December, 2010

Author: Gita Mittal

15
*IN THE HIGH COURT OF DELHI AT NEW DELHI

     + CM Nos.22180-181/2010 and W.P.(C)No.8732/2010


                               Date of Decision : 24th December, 2010

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       BRIJESH NARAYAN SINGH               ..... Petitioner
                     Through : Mr. Anuj Aggarwal and
                               Mr. Gaurav Khanna, Advs.

                      versus

       UOI AND ORS                              ..... Respondents
                           Through : Mr. Rajiv Ranjan Mishra and
                                     Mr. Alok Shukla, Advs. for
                                     Mr. Sunil Kumar, CGSC.
CORAM :-
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MR. JUSTICE J.R. MIDHA

1.      Whether Reporters of Local papers may                  YES
        be allowed to see the Judgment?

2.      To be referred to the Reporter or not?                 YES

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

GITA MITTAL, J. (Oral)

CM Nos.22180-181/2010

1. Allowed, subject to just exceptions.

2. The applications stand disposed of.

W.P.(C)No.8732/2010

1. The petitioner while posted with the Group Centre of the

Central Reserve Police Force („CRPF‟ hereafter) was attached

with the Directorate General of the CRPF at Delhi between 8th

September, 2008 and 14th August, 2010. He was thereafter

relieved from the Group Centre and permanently posted at

Directorate General, CRPF, Delhi. The petitioner points out that

by an order dated 7th October, 2009, he was granted

permission to temporarily stay out of official accommodation

on the condition that he shall not claim house rent, transport or

any other allowance. However, such denial to other similarly

placed persons was challenged in writ petitions which were

allowed. The petitioner has, therefore, filed the present

petition claiming entitlement to Transportation Allowance („TPT‟

hereafter) and House Rent Allowance („HRA‟ hereafter) in terms

of the applicable rules.

2. The petitioner has premised his entitlement on the

judgment passed by this court in WP(C)No.7582/2009 titled

Jayasankar M.N. vs. Union of India and Others and other

decisions of this court. It is noteworthy that the petitioner has

made representations placing his entitlement and claim before

the respondents on 24th November, 2010. The writ petition has

been filed for the reason that the respondents have failed to

consider the petitioner‟s request or to pass an order thereon.

3. So far as Jayasankar M.N. vs. Union of India & Ors.

was concerned, he had filed W.P.(C)No.7582/2009 for the

reason that in March 1999, the petitioner was posted to the

94th Bn. but was attached to the Directorate EDP Cell at Delhi.

4. In June 2000, the petitioner was permanently attached

and posted at the Directorate EDP Cell at Delhi. 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.

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 126th Bn. 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.

5. Under orders passed by the employer, the petitioner

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. Various representations

made by the petitioner were rejected necessitating the filing of

the writ petition.

6. The court held as follows:-

"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."

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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."

7. Our attention is drawn to a judgment dated 17th of May,

2010 passed in W.P.(C)No.20700/2005 entitled Hariom

Mudgil vs. Union of India & Anr. of this court. Hariom

Mudgil was appointed as an ASI (M) with the CRPF who was

denied house rent allowance and compensatory city

allowance/special duty allowance which he remained attached

to Delhi though transferred/posted to a unit outside Delhi. This

court had noticed the several decisions of this court on the

issue raised in case and observed as follows:-

"2. This writ petition manifests sheer callousness on the part of the respondents who have refused to comply with several judicial decisions made against them on the very issue raised herein.

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13. In view of the fact that despite repeated judgment/orders of this court since 1995 against them, the respondents have failed to follow any kind of discipline and have failed to abide by the correct legal position, valuable judicial time has been unnecessarily and unwarrantedly wasted. The petitioner has also been constrained to seek legal redressal by filing the present writ petition. Instead of reacting in the matter in accordance with law, the respondents did not apply the settled legal position. The respondents opted to pay no heed to the several representations submitted by the petitioner. In answer to the notice of the present writ petition, the respondents have filed a counter affidavit challenging the case

of the petitioner despite the several judgments on the issue against them as noticed above. The contest by the respondents has also necessitated a wholly avoidable and unwarranted burden on the public exchequer. In view of the above, we hold that the petitioner shall be entitled to costs which are quantified at Rs.10,000/-. This amount shall also be paid by the respondents within a period of three months from today."

8. Despite this order having been passed on 17th May, 2010,

the position remains the same. The present writ petition has

been filed in identical circumstances as the writ petition in the

above two cases.

9. We find that in the representation dated 24th November,

2010, the petitioner informed the respondents inter alia as

follows:-

"(iii) that now I have learnt that in similar cases, HRA, TPT and other allowances at the rate of place of duty during attachment period had been allowed to the CRPF personnel by Hon‟ble High Court of Delhi vide their judgment dated 15/05/1995, 20/10/2003, 16/11/2009 and 17/05/2010 against the WP(C)No.308/1994d, WP(C)No.7391/2001, WP(C)No.7582/2009 and WP(C)No.20700/2005 respectively. In this regard copy of Hon‟ble High Court Delhi judgment dated 17/05/2010 against the WP(C)No.20700/2005 filed by SI(M) Hariom Mudgil is enclosed for ready reference."

10. The above narration would show that the petitioner was

clearly entitled to the relief which he had sought and had been

wrongly denied the same.

11. In view of the above, we direct as follows:-

(i) The order dated 7th October, 2009 to the extent it

denied HRA, TPT and other allowances shall stand

set aside and is hereby quashed.

(ii) The respondents shall consider the representation

dated 24th November, 2010 in accordance with the

principles laid down in the aforenoticed decision and

the applicable rules within a period of four weeks

from today. The order passed thereon shall be

communicated to the petitioner.