Delhi High Court
Avijit Das vs Union Of India & Ors. on 27 May, 2015
Author: Pradeep Nandrajog
$~5, 8 & 9
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision : May 27, 2015
+ W.P.(C) 5407/2015
AVIJIT DAS ..... Petitioner
Represented by: Dr.Vijendra Mahndiyan,
Advocate with Ms.Pallavi Awasthi,
Advocate
versus
UNION OF INDIA & ORS ..... Respondents
Represented by: Mr.Sarat Chandra, Advocate for R-1
and R-2
W.P.(C) 5455/2015
ANAND KUMAR SINGH ..... Petitioner
Represented by: Dr.Vijendra Mahndiyan,
Advocate with Ms.Pallavi Awasthi,
Advocate
versus
UNION OF INDIA & ANR ..... Respondents
Represented by: Mr.Rakesh Kumar Garg, Advocate
for R-1
W.P.(C) 5568/2015
BINOD KUMAR ..... Petitioner
Represented by: Dr.Vijendra Mahndiyan,
Advocate with Ms.Pallavi Awasthi,
Advocate
versus
UNION OF INDIA & ANR ..... Respondents
W.P.(C) No.5407/2015 & conn.matter Page 1 of 6
Represented by: Ms.Archana Gaur, Advocate
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE PRATIBHA RANI
PRADEEP NANDRAJOG, J. (Oral)
CM Nos.9743-44/2015 in W.P.(C) No.5407/2015
CM Nos.9917-18/2015 in W.P.(C) No.5455/2015
CM Nos.10019-20/2015 in W.P.(C) No.5568/2015
Allowed subject to just exceptions.
WP (C) Nos.5407/2015, 5455/2015 & 5568/2015
1. Learned counsel who appears for the respondents on advance copy of
the writ petition being filed says that the facts pleaded in the writ petition are
correct. Thus, with consent of learned counsel for the parties we proceed to
decide the three captioned writ petitions.
2. The petitioners are enrolled members of the Force of CISF. All of
them sought permission to live out of the campus with family and were
granted the necessary permission. None of them was provided with
Government accommodation. The claim of all is for being sanctioned and
thereafter paid house rent allowance.
3. In the decision dated May 23, 2008 deciding W.P.(C) No.1712/2006
Inspector Jaspal Singh Maan Vs. UOI & Ors., taking note that Inspector
Jaspal Singh Maan was an enrolled member of CISF, the Division Bench of
this Court took note of Rule 61 of the CISF Rules, 2001 which covered the
field of providing 'Free Accommodation' to the members of the Force and
opined that sub-Rule 2 thereof clearly envisaged that either rent free
accommodation would be made available and if not, in lieu thereof, house
rent allowance as applicable to employees of Central Government would be
paid. The Division Bench noted that CISF was relying upon its Office
Memorandums under which some monetary compensation in lieu of rent
free accommodation was to be paid.
4. The Division Bench noted that House Rent Allowance was not in the
nature of a concession but formed a component of the salary payable and for
which the Division Bench noted the recommendations made by the various
Pay Commissions and the decisions of the Supreme Court reported as 2008
(1) SCC 586 UOI Vs. Dineshan K.K., 1995 Supp. (4) SCC 633 Director
Central Plantation Crop Research Institute Vs. M.Purushothaman & Ors.
and 2002 (3) SCC 302 State of Karnataka & Anr. Vs. Mangalore University
Non-Teaching Employees Association. The Division Bench harmonized
sub-Rule 2 and sub-Rule 3 of Rule 61 of the CISF Rules, 2001 to hold as
under:-
"12. We have examined the rival contentions of the parties. The
first aspect to be considered is the concept of the HRA itself.
HRA is not in the nature of a concession but it forms a
component of the total salary as part of condition of service. It
is in the nature of a compensatory allowance in lieu of
accommodation. Thus, the object is to compensate an employee
for the amenities which are not available as provided to other
employees. The service personnel of the CISF and other CPOs
while posted in different stations are thus granted
accommodation and in case of shortage of the same HRA is
paid.
13. The operation of Rule 61 of the said Rules and its
interpretation has given rise to a situation where the grant of
such accommodation or HRA in lieu thereof is sought to be
made dependent where a person is posted.
14. It is trite to say that the transfer or posting is an incident of
service. The respondents post such persons at different stations
according to their requirement and thus there cannot be any
discrimination on the question of the grant of accommodation
or HRA in lieu thereof on the basis of such station one is posted
to. Thus, merely because the petitioner comes to be posted at
Delhi from Amritsar he cannot be deprived the HRA.
15. Another aspect to be noted is that in some of the
paramilitary forces, 100 per cent of the force is being granted
family accommodation or HRA in lieu thereof giving rise to
discrimination between personnel of para-military forces and
thus principles as laid down in Union of India Vs. Dineshan
K.K. case (supra) would equally apply.
16. The appointment letter issued to the petitioner itself stated
that allowances as admissible and sanctioned by the Central
Government would apply and HRA is payable as per CCS
(HRA) Rules as admitted by the respondents.
17. We fail to appreciate either the rationale or the basis for
creating an artificial category of persons who would be
disentitled to an accommodation or HRA. There can be
percentages assigned between different categories of personnel
for distribution of the accommodation available. This is a
natural corollary of shortage of accommodation. The petitioner
cannot make a grievance in respect of the same. However, if a
personnel is not granted a family accommodation on account of
his seniority being lower in his category of persons as per the
percentage of distribution of family accommodation, HRA must
follow. The rule as sought to be interpreted would imply that
not only is there a percentage distribution between different
categories but the persons falling outside the ambit of
consideration would be deprived even of the HRA. The only
manner of reading the Rule which would sustain would be that
Rule 61 of the said Rules would not entitle a person to claim
family accommodation if in the percentage of distribution as
per sub-rule 1 of Rule 61 of the said Rules, he is not of
sufficient seniority but in that eventuality he is entitled to the
HRA in lieu thereof as applicable to the Central Government
employees. Sub-rule 2 of Rule 61 of the said Rules is
unambiguous inasmuch as, it says that those who cannot be
provided with a free accommodation because of the paucity of
accommodation which has to be distributed in the ratio of 45
per cent : 55 per cent in case of married and unmarried
officials, shall be provided HRA in lieu thereof. If Rule 61 (1)
and Rule 61 (3) of the said Rules are read together, the only
conclusion which can be derived is, that while there may be a
situation where there may not be a house available for
allotment to an officer posted at a particular station, he still
would be entitled to HRA. However, in case where a person is
entitled to married accommodation but is provided with
unmarried accommodation, then he may also be entitled to
compensation in lieu of married accommodation in addition to
the allotment of house available for unmarried category if he
wants to occupy the said house.
18. Reading of Rule 61 of the said Rules in the manner as stated
above would also imply, that the Government circulars on
which much reliance has been placed upon by learned counsel
for the respondents, i.e., the circulars dated 30.3.2000 and
27.11.1980, is misconceived inasmuch as, those circulars
cannot override, the Statute, that is, Rule 61 (2) of the said
Rules.
19. A contrary interpretation would make the Rule
discriminatory and hit by Article 14 of the Constitution of India
having no rational or nexus with the object sought to be served.
It can hardly be the intent of the respondents that the grant of
HRA is dependent on a chance factor as to where a person is
posted. In fact, this may itself result in unnecessary
representations and pressures by persons for being posted to
places where they would be entitled to such an HRA as posting
in other places may deprive them of this entitlement. Housing in
most parts of the country is expensive and a large expense for a
service personnel. The grant of such HRA, thus, cannot vary
from town to town except to the extent that the amount of HRA
would vary dependent on the classification of the town/city.
20. We also find it a discriminatory practice where personnel of
other para-military forces who are identically situated may be
getting an accommodation or HRA in lieu thereof for all the
personnel posted in that station while such benefit is sought to
be denied in other para-military services."
5. The writ petitions are disposed of issuing a mandamus to the
respondents that for such period the petitioners were granted outdoor
residence permission they would be paid house rent allowance if no official
accommodation was made available and while making the payment of house
rent allowance the compensation (in terms of money) paid as per sub-Rule 3
of Rule 61 of the CISF Rules, 2001 shall be adjusted. The payment shall be
made within 4 months from today and if not paid within 4 months shall be
paid with simple interest @ 8% per annum reckoned from 4 months
hereinafter till date of payment.
6. No costs.
(PRADEEP NANDRAJOG)
JUDGE
(PRATIBHA RANI)
JUDGE
MAY 27, 2015
mamta
