Tushar Ranjan Mohanty vs Union Of India & Ors
2015 Latest Caselaw 3376 Del

$~33
*    IN THE HIGH COURT OF DELHI AT NEW DELHI


%                                      Date of hearing and Order: 27.04.2015

+                        W.P.(C) 4177/2015

         TUSHAR RANJAN MOHANTY
                                                                       ..... Petitioner
                              Through       Petitioner in person.

                              versus

         UNION OF INDIA & ORS
                                                                ..... Respondents
                              Through       Mr. R.V. Sinha & Mr. R.N. Singh,
                                            Advs.


         CORAM:
         HON'BLE MR. JUSTICE KAILASH GAMBHIR
         HON'BLE MR. JUSTICE I.S.MEHTA

                              ORDER

KAILASH GAMBHIR, J (ORAL)

C.M. Appl. No.7570/2015 (Exemption)

Exemption allowed subject to just exceptions.

Application stands disposed of.

W.P. (C) No.4177/2015

1. Challenge in the present petition is to the order dated 27.07.2010

passed by the learned Tribunal in O.A. No.2359/2009, order dated

03.02.2010 in M.A. No.301/2010 and M.A. No.302/2010 in O.A.

No.2359/2009, order dated 30.09.2010 in R.A. No.250/2010 in O.A.

No.2359/2009, and the order dated 05.09.2014 in M.A. No.601/2012 and

M.A. No.2150/2012 in O.A. No.2359/2009. The petitioner in the present

writ petition has also sought certain other directions against the respondents

in terms of prayer paras (iv) to (viii).

2. Mr. Tushar Ranjan Mohanty has addressed arguments in support of

his petition himself. He contends that by order dated 03.03.2008 passed by

the respondent, he was placed under suspension because of the initiation of

disciplinary proceedings against him. In the said order itself, it was also

directed that so long as the said order remains in force, the headquarters of

the petitioner shall be at New Delhi and the officer shall not leave the

headquarters without obtaining the prior permission of the officer who had

signed the suspension order. Contention raised by the petitioner is that he

was allotted a Government accommodation from Revenue Pool at

Ghaziabad and by the said suspension order, a clear direction was given to

the petitioner that he shall not leave the headquarters, which clearly meant

that the headquarters were at New Delhi. Therefore, he was required to

shift to New Delhi and then not to leave the jurisdiction of the headquarters.

The petitioner has placed reliance on O.M. No.11014/2/E.II(B)/82 dated

19.03.1983, which as per the petitioner clearly provides that a Government

servant, who, on transfer, has been permitted to retain a Government

accommodation at the old station on payment of normal rent or penal rent or

retains Government accommodation unauthorizedly on payment of damages

etc., will not be entitled to HRA at the new station for the period beyond 8

months from the date of his transfer. The petitioner submits that the said

O.M. entitles the petitioner to claim HRA for a period of 8 months during

the period of his transfer. The petitioner has also invited the attention of the

Court to his case being considered as that of a case for transfer by allowing

the travelling allowance for transfer by the respondent themselves, but yet

the respondents denied the said HRA to the petitioner for the period he

remained in a rented accommodation in terms of the order of suspension

dated 03.03.2008. The petitioner further argues that he has been making

repeated requests to the respondents through written communications that

he be permitted to stay with his family at Ghaziabad and in the event of the

requests being not acceded to, to pay him the HRA for occupying the rented

accommodation at New Delhi. The petitioner has invited the attention of the

Court to the letters dated 30.04.2008, 04.09.2008 and 19.03.2009 written by

him in this regard.

3. We have heard the petitioner at considerable length and given our

anxious consideration to the pleas raised by him. We have also heard Mr.

R.V. Sinha, Advocate, who appears on behalf of the respondents on advance

notice.

4. The said pleas raised by the petitioner have been convincingly dealt

with by the Tribunal in their orders which are under challenge in the present

petition and we find ourselves in complete agreement with the reasoning of

the Tribunal in dealing with the pleas of the petitioner. The petitioner had

shifted to Ghaziabad after he had surrendered the General Pool

accommodation which was allotted to him in New Delhi. The

accommodation at Ghaziabad was allotted in favour of the petitioner at his

request, as his son had joined some course of study in Ghaziabad. The

petitioner was later placed under suspension in terms of Rule 10(1) of the

Central Civil Services (Classification, Control and Appeal) Rules, 1965

vide order dated 03.03.2008. In this suspension order, it was stated that

headquarters of the petitioner shall be at New Delhi and he shall not leave

the headquarters without obtaining the prior permission of the respondents.

As per the petitioner, he had taken a rented accommodation in New Delhi

adhering to the requirement of the suspension order dated 03.03.2008

whereby the petitioner was required not to leave his Headquarters without

prior permission of the respondents. It is also the case of the petitioner that

he was not given any permission to continue with his stay at Ghaziabad and

therefore he was entitled to claim the HRA after having occupied a rented

accommodation in New Delhi. While dealing with the contentions of the

petitioner, the learned Tribunal in the impugned order dated 27.07.2010 has

taken a view that there was no change in the Headquarters of the petitioner

after he was placed under suspension which continued to be at New Delhi

except that there was only a change of office and therefore the petitioner

cannot take any shelter under the plea that by the order of suspension he

could not have left the jurisdiction of the place of his Headquarters. It is

also an indisputable fact that the petitioner continued to occupy the Revenue

Pool accommodation in Ghaziabad and yet he raised a claim for HRA even

for the period when he was occupying accommodation at Ghaziabad. The

learned Tribunal is correct in taking a view that as per the Government of

India instructions the petitioner is not entitled for HRA for the period when

he was occupying a Government accommodation at Ghaziabad. We also

find no force in the plea raised by the petitioner that in terms of the O.M.

No.11014/2/E.II(B)/82 dated 19.03.1983, he was entitled to claim HRA.

We fail to comprehend as to how the order of suspension can be construed

as an order of transfer. With regard to the plea raised by the petitioner that

he was granted travelling allowance for transfer by the respondent

themselves, the Tribunal in the order dated 05.09.2014 has clearly observed

that the transfer TA Bill passed by the department has been clearly against

the rules and that cannot be made a ground for the petitioner to claim that his

case was a case of transfer. For better appreciation, the relevant paras of the

order dated 05.09.2014 of the Tribunal are reproduced:-

"9. We find that all the aspects raised by the applicant here had been raised by him in the original arguments based on which order dated 27.07.2010 had been passed. Only one new fact is now being brought to the notice of the Tribunal that his transfer TA Bill had been passed giving him full allowances. The fact is that for both the posts, the headquarter was New Delhi. While he was with the Income Tax Department, they offered him a government accommodation belonging to Income Tax pool at Ghaziabad on his request so that it helps him in his child‟s education. When he was put under suspension, his headquarters were shown to be New Delhi. Therefore, clearly there has been no change of place and by no stretch of imagination it could be called a transfer. This would be clear from the definition of transfer itself under Rule 2(18) of the Supplementary Rules, which are extracted below:-

"18) "Transfer" means the movement of a

Government servant from one headquarter station in which he is employed to another such station, either-

(a) to take up the duties of a new post, or

(b) In consequence of a change of his headquarters."

10. No headquarter station has changed. It was only an accommodation by the Income Tax Department that he was allowed to stay in Ghaziabad while his headquarters was New Delhi. In fact, the transfer TA bill passed by the department has been clearly against the Rules and that cannot be made a ground for the applicant to now claim that his case was of transfer.

11. In fact, in the earlier order, the Tribunal had referred to HRA Rules and noted the fact that for drawing HRA by a government servant, the following certificate has to be given:

"Certified that the Government servants for whom House Rent Allowance is drawn in this bill have not been provided with any Government accommodation."

The applicant was, therefore, clearly not eligible.

12. The applicant had also drawn the attention of this Tribunal on the earlier occasion, as well as now, to provisions of OM dated 19.03.1983 of the Ministry of Finance, which provides as follows:-

"A Government servant, who, on transfer has been permitted to retain Government accommodation at the old station on payment of normal rent or penal rent or retains Government accommodation unauthorizedly on payment of damages etc., will not be entitled to HRA at the

new station for the period beyond 8 months from the date of his transfer.

8.1) „Note‟ mentioned under the head „Suspension‟ in the HRA and CCA-General Rules and Orders, is also reproduced below:

"Note: If the headquarters of a Government servant under suspension are changed in the public interest by orders of a Competent Authority, he shall be entitled to the allowances as admissible at the new station, provided he furnishes the requisite certificate with reference to such station."

"18) "Transfer" means the movement of a Government servant from one headquarter station in which he is employed to another such station, either-

(c) to take up the duties of a new post, or

(d) in consequence of a change of his headquarters."

13. It would be clear from the above that this refers to cases of transfer or where headquarters are changed and not in the present case of the applicant in which the headquarters have not changed at all. The respondents, in order to help the applicant, had allowed him to stay at Ghaziabad, which benevolence on the part of the respondents the applicant is now using to claim that his was a transfer from Ghaziabad to New Delhi. This is clearly misconstrued. Therefore, we dismiss MA 601/2012."

5. We find no tangible ground to take a different view than the view

taken by the Tribunal in the order under challenge in the present Writ

Petition. The present petition is not only devoid of any merit but is wholly

misconceived and is accordingly dismissed.

KAILASH GAMBHIR (JUDGE)

I.S.MEHTA (JUDGE)

APRIL 27, 2015 km