Delhi High Court
Ashes Kiran Prasad vs Union Of India & Ors on 29 February, 2016
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 4679/2015
Reserved on: 29th January, 2016
Date of decision:29th February, 2016
ASHES KIRAN PRASAD ..... Petitioner
Through: Mr. Ravi Sikri, Senior Advocate
with Ms. Ayushi Kiran, Advocate.
versus
UNION OF INDIA & ORS. ..... Respondent
Through: Mr. V.S.R. Krishna, Advocate.
W.P.(C) 6202/2015
UNION OF INDIA & ORS. ..... Petitioner
Through: Mr. V.S.R. Krishna, Advocate.
versus
ASHES KIRAN PRASAD ..... Respondent
Through: Mr. Ravi Sikri, Senior Advocate
with Ms. Ayushi Kiran, Advocate.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE NAJMI WAZIRI
SANJIV KHANNA, J.
These two writ petitions by Ashes Kiran Prasad and the Union of
India (through Secretary Railway Board); Member Staff-Railway Board,
General Manager, North Frontier Railway and General Manager, North
Western Railway, impugn a common order dated 13th November, 2014,
passed by the Principal Bench, Central Administrative Tribunal, Delhi
(Tribunal, for short) and, hence, are being disposed of by this common
judgment.
2. The impugned order passed in OA No.4241/2013, filed by Ashes
Kiran Prasad (hereinafter referred to as „employee‟) directs that for the
period 30th October, 2003 to 26th October, 2007, when the employee was
posted on promotion at North-West Frontier Railway, Gauhati, in the
Senior Administrative Grade, he would be entitled to payment of House
Rent Allowance (HRA) at the rates applicable at Patna on the basic pay
paid to the employee in the Senior Administrative Grade. The Union of
India was accordingly directed to calculate the difference in the HRA
payable, and pay the same within three months from the date of the order.
The Union of India is aggrieved by the aforesaid order. The employee, on
the other hand, is aggrieved by the finding of the Tribunal that he would
not be entitled to payment of HRA on his transfer to Jaipur, in the North-
Western Railways (NW Railways) with effect from 27th October, 2007 as
he was in occupation of government accommodation.
3. The employee is an officer of the Indian Railway Traffic Service and
was posted at Patna in the East-Central Railway (EC Railways) before
being transferred to Gauhati in the North-East Frontier Railway (NF
Railway) on promotion to the Senior Administrative Grade. The employee
joined the posting at Gauhati and remained posted there from 30 th October,
2003 to 26th October, 2007, when he was transferred to North-Western
Railway, at Jaipur.
4. The employee claims that while at Hajipur, Bihar, he was drawing
HRA of Rs.2015/- calculated at the rate of 15% of his basic pay in the scale
of Junior Administrative Grade. The claim, which has been accepted by
the Tribunal, was that on being promoted and posted at Gauhati in the
Senior Administrative Grade, HRA should be based and computed on
enhanced basic pay in the promotional post.
5. Consequent to promotion of the employee to Senior Administrative
Grade and posting at Gauhati, the employee was given government
accommodation at Gauhati. However, the employee continued to get
payment of HRA at Hajipur, Bihar in terms of the policy applicable to
officers posted to the NF Railway that they would be allowed to retain the
allotted quarter at the previous place of posting or the employee would be
entitled to draw additional or second HRA at the same rate as paid prior to
the officer being posted in the NF Railway.
6. The submission and reasoning, which has been accepted by the
Tribunal, is that HRA is paid on a specified percentage of basic pay and
this amount would increase every year on account of annual increments or
on further promotion and, therefore, HRA would not remain static or
fixed. HRA would increase with increments or when the basic pay is
increased. It is pointed out that in case the employee had been promoted
and was granted Senior Administrative Grade at Patna and was thereafter
transferred to Gauhati in NF Railway, he would have drawn a higher HRA.
The policy, relied upon by the Union of India, was iniquitous and falls foul
of Article 14. Prior to the posting at Gauhati, when the employee was
posted at Hajipur in the East-Central Railway, a controversy had arisen as
to whether the employee should be paid HRA at Patna rate, where he was
residing, or as applicable and payable at Hajipur, Bihar. The Patna rate was
higher than the HRA payable at Hajipur. The employee‟s claim to HRA
payable at Patna rate was accepted by the Central Administrative Tribunal,
Patna and the Patna High Court. The Supreme Court had dismissed the
Special Leave Petition.
7. In order to decide the controversy, we would like to first reproduce
paragraph 1703 of the Indian Railway Establishment Code, which reads as
under:-
"1703 The rates of House Rent Allowance which may be granted
with effect from 1.8.1997 to Railway servants stationed in A-1,
A, B-1, B-2, C class and unclassified cities are given below:-
Classification of cities/towns Rates of House Rent Allowance
A-1 30% of actual basis pay drawn
A 15 % of actual basis pay drawn
B-1 15 % of actual basis pay drawn
B-2 15 % of actual basis pay drawn
C 7.5 % of actual basis pay drawn
Unclassified 5 % of actual basis pay drawn
House Rent Allowance at the above rates shall be admissible to
all Railway servants (other than those provided with
Government owned/hired accommodation) without reference to
the quantum of rent paid, without requiring them to produce any
rent receipts. Such railway servants shall, however, be required
to furnish a certificate that they are incurring some expenditure
on rent/contributing toward rent. House Rent Allowance at the
above rates shall also be admissible to Railway servants living
in their own houses subject to their furnishing a certificate that
they are paying/contributing towards house or property tax or
maintenance of the house.
NOTE: Where House Rent Allowance has been allowed under
special orders, the same shall be given as admissible in A-1, A,
B-1, and B-2 cities, as the case may be, until issue of orders to
the contrary.
(Authority: Railway Board‟s let No.E(P&A) II-97/HRA-19
dated 3.10.2005)."
It is pertinent to mention that Patna is an „A‟ class city and, therefore, an
employee posted at Patna is entitled to draw HRA @ 15% of his actual
basic pay drawn. As per the case of the employee, the Joint Hindu Family
of which he was a member, had a house/residence and he had occupied the
same on rent at Patna.
8. Relevant portion of the department‟s letter dated 30th June, 2013, which
incorporates special provisions in respect of employees transferred to NF
Railway reads as under:-
"8.2 Special provision in respect of employees transferred to
N.F. Railway.
a. A Railway employee who has all India transfer liability
or, in the exigencies of public service, is posted on transfer to
the N.F. Railway, excluding Katihar Division, will be
permitted to retain railway accommodation allotted to him/her
at the last station or his/her posting, on payment of normal
rent/single flat rate of licence fee/rent for the first two months
and thereafter 1 ½ times the normal rent/flat rate of licence
fee/rent. However, officers posted subsequently to Kathihar
Division will continue to get this benefit on personal basis.
b. Staff posted to the Kathir Division of N.F. Railway will
be governed by the rules and orders, as applicable to the
generality of railway employees in regard to retention of
quarters and payment of licence fee/rent therefor. The
eligibility to these concessions of staff initially posted on
transfer to N.F. Railway Divisions other than Katihar, will
cease if and when they are posted to any station in Katihar
Division."
9. The Railway Board vide letter No. E (P&A)II-83/HRA-29 dated 30th
June, 1984, had examined the question of payment of HRA to railway
employees posted in the States of Assam, Meghalaya, Nagaland, Manipur
etc. and had accorded as under:-
"Sub: Allowance and facilities for Railway employees serving
in the States and Union Territories of North Eastern Region-
Improvements thereof.
The question of payment of House Rent Allowance to railway
employees who are posted in the States of Assam, Mehalaya,
Manipur, Nagaland, and Tripura and the Union Territories of
Arunachal Pradesh, Mizoram and Andaman & Nicober Islands
has been considered and the President is pleased to decide as
follows:-
(a) Railway employees who were in occupation of hired
private accommodation at the last station of posting before
transfer to any of the State/Union Territories mentioned above,
may be allowed to draw House Rent Allowance admissible to
them at that station.
(b) Such railway employees may also be allowed to draw,
in addition to (a) above, House Rent Allowance at the rates
admissible at the new place of posting in the aforesaid
states/Union Territories in case they live in hired private
accommodation.
(c) These orders will take effect from 1st November, 1983
and will remain in force for a period of three years upto 31 st
October, 1986.
3. This issues with the concurrence of the Finance
Directorate of the Ministry of Railways.
4. Hindi version is enclosed."
10. A reading of the special provision 8.2 would elucidate that a railway
employee posted on transfer to NF Railway, except Katihar Division, is
entitled to retain railway accommodation allotted to him/her at the last
station of posting on payment of normal rent/single flat rate of licence
fee/rent for the first two months and thereafter at a rate of one and a half
times the normal rent. Letter of the Railway Board dated 30th June, 1984
relates to railway employees, who are in occupation of hired private
accommodation at the last station of posting before being transferred to the
specified States. Pertinently, there is a clear stipulation that the HRA
admissible to them would be that as was last paid at that station. In other
words, it would be a static or fixed amount at the said place of posting and
would not be enhanced. Clause „b‟ of the said letter postulates that an
employee can also draw HRA at the rates applicable at the new place of
posting. in case he/she lives in a hired private accommodation. Thus, two
HRAs become payable to an employee posted in the said States under
clauses „a‟ and „b‟. The HRA at the place of posting is a matter of right,
whereas HRA at the first place of posting is only by way of a concession.
11. The Railway Board by, a subsequent letter dated 4th September, 1986
has clarified that the aforesaid concession in respect of the last station
posting granted to a railway servant in terms of the letter dated 30 th June,
1984, would not change and would be a fixed sum. Relevant portion of the
said letter reads as under:-
"
SI No. Points raised Clarification
xx xx xx
4 Whether the quantum The concession will
of HRA at the last be available to the
station where the Railways servants,
family continues to without any change,
stay would change till the concerned
with reference to pay Railway servant
of the Railway remain posted in
servants at new place North-Eastern
of posting. Region and
Andaman and
Nicobar Islands and
the family continues
to stay at the last
station.
xx xx Xx
"
12. At this stage, we would like to reproduce the reasoning given by
the Tribunal to allow the prayer and hold that the employee would be
entitled to HRA for the last station posting at the enhanced pay scale. The
said reasoning reads:-
"8.2 The Railway Board‟s letter No.E (P&A) II-
83/HRA-29 dated 30.6.1984 contains the decision of the
President that the Railway employees who were in occupation of
hired private accommodation at the last station of posting before
transfer to any of the States of Assam, Meghalaya, Manipur,
Nagaland, and Tripura and the Union Territories of Arunachal
Pradesh, Mizoram and Andaman & Nicober Islands, may be
allowed to draw HRA admissible to them at that station. While
clarifying point no.4, the Railway Board, vide its letter dated
4.9.1986, has not stated that the quantum of HRA at the last
station, where the family of the transferred Railway employee
continues to stay, would not change with reference to pay of the
Railway servant at the new place of posting, nor has it stated that
the Railway servant will not be entitled to HRA with reference to
his pay at the new place of posting. It has only been clarified that
the concession will be available to the Railway servants, without
any change, till the concerned Railway servants remain posted in
North-Eastern Region and Andaman & Nicobar Islands and the
family continues to stay at the last station. That is to say that the
concession which has been granted by the Railway Board, vide
its letter dated 30.6.1984, will be available without any change,
meaning thereby that the terms and conditions for payment of
HRA contained in the letter dated 30.6.1984 will remain
unchanged. The concession which has been granted by the
Railway Board, vide its letter dated 30.6.1984, is that Railway
employees who were in occupation of hired private
accommodation at the last station of posting before transfer to
any of the States of Assam, Meghalaya, Manipur, Nagaland, and
Tripura and the Union Territories of Arunachal Pradesh,
Mizoram and Andaman & Nicobar Islands, may be allowed to
draw HRA admissible to them at that station. It has not been
stipulated in the said letter dated 30.6.1984 that the Railway
employee may be allowed to draw the same quantum of HRA
which he was getting at the last station where his family
continues to stay. As per Government orders/rules pertaining to
payment of HRA to Government employees, HRA is payable
with reference to the pay drawn by them from time to time and
there is no concept of any fixed HRA payable to regular
employees because their pay varies from time to time on grant of
increments and/or promotion from lower post to higher post
and/or reversion from higher post to lower post. Therefore, non-
payment of HRA to the applicant with reference to his pay drawn
in N.F.Railway, Guwahati, at the rate applicable to Patna, does
not stand to reason; besides being contrary to the decision of the
President conveyed in the Railway Board s letter dated
30.6.1984 (ibid)."
It is difficult to appreciate and understand the logic behind the said
reasoning. A reading of the letter dated 30th June, 1984, would indicate
that an employee posted to NF Railways is entitled to two HRAs. The first
HRA is payable as per the place of actual posting. The second HRA is the
same as paid to the said employee at the last station of posting before he
was posted to the States of Assam, Meghalaya, Nagaland, Manipur, Tripura
etc. In other words, the letter grants a concession and indulgence to the
employee as he is paid the HRA at the rate which was being paid at the
place of his last posting. The amount so fixed depends upon the basic pay
being paid to the employee at the place of his last posting, before he was
transferred and posted to the States of Assam, Meghalaya, Nagaland,
Manipur, Tripura, etc. This payment does not deny and the employee
would get the HRA payable to him on his posting to the States of Assam,
Meghalaya, Nagaland, Manipur, Tripura etc. The current HRA would
accordingly depend upon the basic pay being drawn by him at the new
place of posting. In this way, the employee does not suffer and continues
to get HRA on his current basic pay while being posted to the States of
Assam, Meghalaya, Nagaland, Manipur, Tripura etc. This is in terms of
paragraph 1703 of the Indian Railway Establishment Code. By way of
concession, the employee also continues to draw the HRA, which he was
getting at the last place of posting as per the basic pay he was then drawing.
The said concession is certainly not iniquitous and does not fall foul of
Article 14. It also does not fall foul of paragraph 1703 of the Indian
Railway Establishment Code. The said paragraph does not, in fact, permit
payment of two HRAs, which became payable in terms of the Railway
Board letters dated 30th June, 1984 and 4th September, 1986.
13. It is also difficult to perceive and accept the argument that payment
of the second HRA on the basis of pay last drawn at the earlier place of
posting is iniquitous or absurd. There is a rationale behind the said
formula, which is perceptible and clear. The employee is paid additional
HRA, equal to the fixed sum which he was already getting. This payment
continues and is not stopped. The employee would be paid the HRA as
applicable at the new place of posting in the States of Assam, Meghalaya,
Nagaland, Manipur, Tripura etc. The said HRA at the new place of posting
would depend upon his current/new basic pay. Fixation of pay scales etc.,
are matters of policy, which take into account several factors. Normally,
Courts do not interfere in fiscal matters like fixing rates of HRA etc., unless
the policy is ex facie arbitrary and displays apparent discrimination. The
criteria for payment of two HRAs in the present case would be identical
and equally apply to all employees, who get posted in the specified States.
Paragraph 1703 of the Indian Railway Establishment Code quoted above
shows that HRA can vary from 5% to 30% of the actual basic pay drawn. It
is dependent upon the place of posting and the pay scale. Transfers are
incidents of employment and not by way of punishment. If we accept the
reasoning of the Tribunal, then rates of HRA should be identical or the rate
of HRA should also change if the family of the employee takes a rented
accommodation at another or a different place. Mere possibility of
incongruities in some odd situations would not make the policy/letter
violative of Article 14 of the Constitution, as was observed by the Supreme
Court in State of Karnataka & Another v. Mangalore University Non-
Teaching Employees Association & Others (2002) 3 SCC 302:-
"10. ..... The complaint based on Article 14 of the Constitution
cannot be judged by adopting a doctrinaire approach or by having
regard to individual cases. It is not prudent or pragmatic to insist
on a mathematically accurate classification covering diverse
situations and all possible contingencies in view of the inherent
complexities involved in fixing the scales of allowances based on
the places of work.....
While formulating such rules it is difficult to envisage all
situations and facts peculiar to a few places here and there. A
legislative provision or an executive order of general application
does not become unconstitutional merely because, in its actual
application, it turns out to be disadvantageous or inequitable to
certain individuals or a small section of people. Government
should not take note of individual cases of hardship and afford
relief wherever such relief is genuinely needed; but the rule or
the provision does not become bad or obnoxious to Article 14 for
the reason that the criterion adopted in the case of an „A‟ Class
city is not extended to a „B‟ or „C‟ Class city."
In light of the aforesaid, the policy of the Railways as expressed in the
letters cannot be held to be discriminatory or arbitrary.
14. A reading of the order dated 15th January, 2008 passed in CWJC
No.10123 of 2006, Union of India & Ors. Vs. Ashes Kiran Prasad &
Anr. would indicate that the challenge in the writ petition was to the order
of the Central Administrative Tribunal dated 1st December, 2014, by which
the employee was directed to be paid HRA for occupation of the house at
Patna at the rate applicable to house rent allowance at Patna, though, the
employee was posted at Hajipur. The Court noticed that the employee had
been permitted to hire an accommodation at Patna due to paucity of
government accommodation at Hajipur. In these circumstances, the
employee had submitted that he had taken a house on rent at Patna, which
belonged to a Joint Hindu Family/ Hindu Undivided Family of which he
was a member and, therefore, he was entitled to payment of HRA.
Attention was drawn to one line in the said order to the effect that "The
House Rent Allowance for the permissible occupation of own house at
Patna should commensurate with that", we would observe is not the sole
basis of making the said finding and granting relief to the employee. The
primary consideration was that the employee, though posted at Hajipur,
Bihar, could not be provided accommodation due to paucity of government
accommodation at Hajipur. It cannot be said that this judgment or decision
re-writes all principles of HRA or has the effect of negating paragraph
1703 of the Indian Railway Establishment Code. The decision should be
confined to its own facts.
15. There is another reason why the writ petition filed by the Union of
India should succeed. As noticed above, the employee was posted and had
remained at Gauhati, from 30th October, 2003 till 26th October, 2007. The
OA claiming the arrears was filed under Section 19 of the Administrative
Tribunal Act, 1985, in the month of December, 2013. The prayer for
payment of arrears of enhanced HRA for the aforesaid period was clearly
barred by limitation. Section 21 of the aforesaid Act states that a Tribunal
shall not admit an application under clause (a) and (b) if they are barred by
limitation, i.e. not filed within one year from the date on which the final
order is made, or where an appeal or representation is made as mentioned
in clause (b) of sub-section (2) to section 20 and a period of six months has
expired without final order being made, and within one year from the date
of expiry of the said period of six months.
16. The employee, in view of the aforesaid position, had relied on the
decision in Union of India and Ors. Vs. Tarsem Singh, (2008) 8 SCC 648,
which examines principles underlying continuing wrongs and
recurring/successive wrongs. A "continuing wrong" refers to a single
wrongful act which causes a continuing injury. "Recurring/successive
wrongs" are those which occur periodically, each wrong giving rise to a
distinct and separate cause of action. In Balakrishna S.P. Waghmare vs.
Shree Dhyaneshwar Maharaj Sansthan, AIR 1959 SC 798, it was
observed that the very essence of a continuing wrong is that the offending
act creates a continuing source of injury and renders the doer of the act
responsible and liable for continuance of the said injury. If the wrongful
act causes an injury which is complete, there is no continuing wrong even
though the damage resulting from the act may continue. In this connection,
it is necessary to draw a distinction between injury caused by a continuing
act and what may be described as the effect of the said injury. Thereafter,
reference was made to M.R. Gupta Vs. Union of India, (1995) 5 SCC 628,
wherein it is observed that so long as an employee is in service, a fresh
cause of action arises every month, when he is paid monthly salary on the
basis of a wrong computation made contrary to the rules and in such cases,
he would be entitled to get his pay properly fixed for the future and the
question of limitation would arise for recovery of the arrears. His
consequential claims such as promotion etc. may be subject to
laches/limitation. In Tarsem Singh (supra), it was held as under:-
"7. To summarise, normally, a belated service related claim
will be rejected on the ground of delay and laches (where
remedy is sought by filing a writ petition) or limitation (where
remedy is sought by an application to the Administrative
Tribunal). One of the exceptions to the said rule is cases 5
relating to a continuing wrong. Where a service related claim
is based on a continuing wrong, relief can be granted even if
there is a long delay in seeking remedy, with reference to the
date on which the continuing wrong commenced, if such
continuing wrong creates a continuing source of injury. But
there is an exception to the exception. If the grievance is in
respect of any order or administrative decision which related to
or affected several others also, and if the re-opening of the
issue would affect the settled rights of third parties, then the
claim will not be entertained. For example, if the issue relates
to payment or re-fixation of pay or pension, relief may be
granted in spite of delay as it does not affect the rights of third
parties. But if the claim involved issues relating to seniority or
promotion etc., affecting others, delay would render the claim
stale and doctrine of laches/limitation will be applied. In so far
as the consequential relief of recovery of arrears for a past
period, the principles relating to recurring/successive wrongs
will apply. As a consequence, High Courts will restrict the
consequential relief relating to arrears normally to a period of
three years prior to the date of filing of the writ petition."
The aforesaid decision does not support the employee and would go against
him. The present case is not of a continuing cause of action. As noticed
above, a distinction has to be drawn between an injury caused by a
wrongful act and what may be described as the effect of the said injury.
The alleged wrongful act, as per the employee, had occurred during the
period 30th October, 2003 till 26th October, 2007 when the "correct" HRA
was not paid to him. There was no continuance or recurrence thereafter,
though the effect of the "short" payment would continue, till payment as
claimed, is made. The OA in question was filed only in December, 2013
and was, therefore, clearly barred by limitation. Even if there was
recurrence reccurrence, limitation of three years would apply.
17. We are conscious and aware that the plea of limitation was not
specifically raised by the Union of India in their reply, which to us was
perplexing and confusing. What is, however, apparent is that the employee
in the OA had mixed up two causes of action, which included the second
relief regarding the HRA payable consequent to the employee‟s posting to
Jaipur in North-Western Railway with effect from 27th October, 2007. The
second relief prayer is the subject matter of W.P. (C) No.4679/2015 titled
Ashes Kiran Prasad vs. Union of India & Ors. We find that the impugned
order is silent and does not examine and decide the contentions raised
before us on the question of payment of double HRA to the employee at
Jaipur. We do not know whether the said contention, in so many words as
raised before us, was in fact raised before the Tribunal. However, we can
treat the prayer as rejected as the same has not been allowed, albeit without
discussion and elucidation.
18. In these circumstances, we would remit the question raised before us
relating to payment of HRA for the period after 27th October, 2007 to the
Tribunal, for a fresh decision on merits. We clarify that we have not
expressed any opinion on the said aspect. Thus, an order of remand would
be justified, for the Tribunal is the court of the first instance. We would,
however, clarify that the question of payment of HRA with regard to the
period between 30th October, 2003 to 26th October, 2007, when the
employee was posted at Gauhati in NF Railway would not be examined as
we have allowed WP(C) No. 6202/2015 filed by the Union of India and
held that the employee Ashes Kiran Prasad would not be entitled to
enhanced or higher HRA.
19. The writ petitions are accordingly disposed of. In the facts of the
present cases, there will be no order as to costs.
-sd-
(SANJIV KHANNA)
JUDGE
-sd-
(NAJMI WAZIRI)
JUDGE
FEBRUARY 29, 2016
NA/ssn
