Ujamben Devabhai Chauhan vs State Of Gujarat
2021 Latest Caselaw 7535 Guj

     C/SCA/11548/2017                                 ORDER DATED: 02/07/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 11548 of 2017
                                 With
             R/SPECIAL CIVIL APPLICATION NO. 11550 of 2017
                                 With
             R/SPECIAL CIVIL APPLICATION NO. 12790 of 2017
                                 With
             R/SPECIAL CIVIL APPLICATION NO. 13148 of 2017
                                 With
             R/SPECIAL CIVIL APPLICATION NO. 13149 of 2017
                                 With
             R/SPECIAL CIVIL APPLICATION NO. 13150 of 2017

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                        UJAMBEN DEVABHAI CHAUHAN
                                  Versus
                        STATE OF GUJARAT & 3 other(s)
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Appearance:
MR MM TIRMIZI(1117) for the Petitioner(s) No. 1
DS AFF.NOT FILED (N)(11) for the Respondent(s) No. 2,3,4
MR K.M.ANTANI, AGP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                              Date : 02/07/2021

                                ORAL ORDER

Heard learned advocate Mr.M.M.Tirmizi for the petitioners and learned Assistant Government Pleader Mr.K.M.Antani for the respondent-State through video conference.

1. All these petitions involve identical questions of facts and law and they are heard analogously and are being disposed of by this common order. Special Civil Application No.11548 of 2017 is treated as lead matter.

C/SCA/11548/2017 ORDER DATED: 02/07/2021

2. The petitioners have prayed for the following reliefs :

"(A) The Honourable Court be pleased to issue writ of Mandamus or any other appropriate writ order or direction directing the respondent authorities to pay the HRA @ 20 % and CLA as per basic salary of the petitioners by holding that the petitioners are serving at a place covered under the Greater Ahmedabad Urban Agglomeration which includes the extended limit of Ahmedabad Urban Development Authority as per the definition of Urban Agglomeration in the interest of justice;

(B) Pending hearing and final disposal of the present petition, the Honourable Court be pleased to direct the respondent authorities to pay HRA @ 20 % and CLA as per the basic salary of the petitioners from the date of their appointment and as per the resolution of 2009 of the Finance Department State of Gujarat accepting the norms of the Sixth Pay Commission),w.e.f.01 /04/2009, in the interest of justice.

(C) Pending hearing and final disposal of the present petition, the Honourable Court be pleased to direct the respondents to release the arrears, which is payable to the petitioners as per the recommendation of the sixth pay commission in the interest of justice.

(D) The Honourable Court be pleased to grant prayer in terms of Prayer [B] on such condition which the Honourable Court may deem fit in the interest of justice.

(E) Any other and further order that this Honourable Court may deem fit be passed in the interest of justice."

3. Brief facts of the case are as under :

3.1. By Government Resolution dated 15.12.1975, the State Government has laid down a Policy that if any employee serving in the village is not in a position to get accommodation in such village because of non availability of suitable accommodation in such village and because of that if he has to resides in a city which is within 8 Kms. of the place of employment, such employee is entitled to house rent allowance (HRA).

    C/SCA/11548/2017                                            ORDER DATED: 02/07/2021




3.2.     Subsequently              by   Government             Resolution            dated
28.10.1987            it     was    provided            that      the        employees

stationed at Gandhinagar will continue to draw the HRA and CLA at the revised rates.

3.3. The Finance Department granted HRA from 1998 for the employees who are residing in the non classified areas. However, the State Government by resolution dated 25th September, 2000 withdrew the benefits of HRA to the employees who are residing within 8 Kms.

3.4. By filing this petition, the petitioners have prayed to direct the respondent authorities to pay the HRA @ of 20% and CLA as per the basic salary of the petitioners on the ground that the petitioners are serving at a place covered under the Greater Ahmedabad Urban Agglomeration which includes the limit of Ahmedabad Urban Development Authority as per the definition of Urban Agglomeration.

4.1. At      the           outset       learned         advocate           Mr.Tirmizi
submitted        that         similar         issue       has       already            been
considered        by        this    Court         in     the     case        of      other
similarly        situated           petitioners.              Learned          advocate

Mr.Tirmizi referred to the order passed by this Court (Coram :Hon'ble Ms.Justice Sonia Gokani, J.) in Special Civil Application No.18497 of 2015 and other allied matters as well as Special Civil Application No.1017 of 2017 decided on 24th January, 2017 and Special Civil Application No.4856 of 2017.

C/SCA/11548/2017 ORDER DATED: 02/07/2021

4.2 Learned advocate Mr.Tirmizi also submitted that similar facts in identical issue containing similar prayers came to be decided by the common judgment dated 05.07.2016 in the case of Nitinkumar C. Patel Vs. State of Gujarat being Special Civil Application No.1791 of 2007 and other allied matters which is followed subsequently in the aforesaid decisions.

5. Relevant portion from the common judgment in the case of Nitinkumar C. Patel (Supra) is therefore required to be reproduced for ready reference, which is as under :

"31 The petitioners, in the present proceedings, are seeking directions for payment of the H.R.A. and C.L.A. as per the circular of the State Government. In this regard, the case of the State Government, according to the existing policy, is that the cities are classified under the urban agglomeration, by which, a government, employee would be entitled for the H.R.A. and C.L.A. In this regard, those cities not falling under the classified urban agglomeration would not get any benefit of the H.R.A. and C.L.A. It is submitted that the cities, which are not falling under the radius of the eight kilometers, would not be qualified in the urban agglomeration.

32 On behalf of the State Government, it is submitted that the cities are classified into the different categories and based on the classification of cities under the different categories, the payment of the H.R.A. and C.L.A. would be decided. Therefore is no provision in the policy of the State Government for making up and down and that the writ applicants are required to stay at the place of occupation.

33 On behalf of the State Government, it is submitted that a huge burden to the public exchequer would follow once the payments of H.R.A. and C.L.A. are increased. Even though the writ applicants have produced undertakings on record, it would be difficult for the respondents State to decide the entitlement of each of the Teachers as many have retired.

34. &..

35 In the course of the hearing of the matters, it was suggested on behalf of the State Government that the entire issue may be asked to be looked into by a High Power Committee that the State Government may constitute. All the learned counsel appearing for the writ applicants agreed to this and submitted that six or seven persons amongst the writ applicants shall appear before the committee for the purpose of submissions and they will also file written representation in this regard with the necessary materials. I am also of the opinion that the State Government will have to reconsider the entire issue a fresh, more particularly, in the wake of the recent developments, and for that purpose, the decision of the State Government, to

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constitute a High Power Committee, appears to be quite just and proper. I could have adjudicated the controversy on merits without referring the issue for being considered by a High Power Committee, but as the State Government itself wants to have a re- look or reconsider the issue in the wake of subsequent developments, then I should permit the State Government to adopt the course of action they have proposed.

36 It is understood that the State Government will constitute a committee consisting of the following member.

(i) Chief Secretary of the State.

(ii) Principal Secretary General Administration Department

(iii) Principal Secretary Education Department

(iv) Principal Secretary Finance.

v. An Educationist familiar with the subject that the State may choose.

37. The list of representatives, who would be appearing before the committee, is as under :

Sr. No Name of Representatives appearing before the Committee on behalf of the writ applicants 1 Narendra Gohel President, Ahmedabad District P.T.F. (Primary Teachers Federation) Bareja Primary School, Daskroi. 2 Ashvinbhai R Patel Teachers Representative Cluster Research Centre (CRC) Co-ordinator CRC Dhamatran Taluka, Daskroi. 3 Hareshbhai G. Patel Principal, Higher Secondary Sharda Shikshan Tirth High School, Paldi, Kankaj, Taluka Daskroi, Member of Principal Federation 4 Jagjivanbhai Patel Secretary, Ahmedabad District Primary Teachers Federation Garodiya Primary School, Sanand, Ahmedabad. 5 Karansinh Bihola Head Clerk, Shrimati Manekba Krushi Vidhyalaya, Adalaj, Dist: Gandhinagar 6 Jayendrabhai Bhatt Clerk, Sarvajanik Vidhyalaya, Kanbha, Taluka :

Daskroi, Ahmedabad

38 In view of the above, I pass the following order:

(I) The State Government will constitute a committee, as noted above, at the earliest, and the committee shall make all possible endevours to see that an appropriate decision is taken within a period of six months from the date of the constitution of the committee.

(II) The representatives of the writ applicants shall appear before the committee and make their submissions.

(III) The committee shall hear those representatives on behalf of the writ applicants.

(IV) It shall be open for the representatives to file their written submissions with the necessary materials in that regard.

C/SCA/11548/2017 ORDER DATED: 02/07/2021

(V) The ad-interim relief, which is operating in favour of each of the writ applicants, shall continue till an appropriate decision is taken by the committee, and the report is filed before the State Government. The ad-interim relief shall also continue thereafter i.e. after the report of the committee for a further period of two months.

(VI) The undertakings given earlier by the writ applicants shall continue to operate till the decision is taken by the committee.

VII.The committee shall give detailed reasons in support of its conclusion.

39 With the above observation and directions, all these writ applications are disposed of in the above terms. It is clarified that if ultimately the writ applicants are dissatisfied, in any manner, with the decision of the State Government, which may be taken, on the basis of the report of the committee, then it shall be open for the writ applicants to once again avail of an appropriate legal remedy before the appropriate forum in accordance with law. I clarify that I have otherwise not gone into the merit of the matter"

6. In view of the above judgment which is followed subsequently and as the facts of the petitioners of these petitions being similar, observations and directions in paragraph Nos.36 to 38 as reproduced above would govern the petitioners also.

7. Interim-relief is granted in similar other petitions being Special Civil Application No.10617 of 2016, Special Civil Application No.1017 of 2017, Special Civil Application No.12075 of 2016, Special Civil Application No.4856 of 2017 and other allied matters. Hence, the relief is also granted to the present petitioners on the same lines directing the respondents to pay HRA and CLA claimed by petitioners subject to appropriate conditions which may be levied.

8. Accordingly, the rights of the petitioners shall be governed by the decision in the case of Nitinkumar C. Patel (Supra). The petitioners shall

C/SCA/11548/2017 ORDER DATED: 02/07/2021

file undertaking to the effect that in the event of any loss they shall refund the amount with 9% interest.

9. If the petitioners are dis-satisfied immediately after decision with the State Government, it will be open for them to available appropriate legal remedy in accordance with law. It is clarified that this Court has not entered into the merits of the case. All the petitions accordingly stand disposed of in the above terms. Notice is discharged.

Direct service is permitted.

(BHARGAV D. KARIA, J) PALAK