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Judgment
S. Parvatha Rao, J.—All these Writ Petitions except Writ Petition No. 800 of 1995 are preferred by various judicial Officers belonging to Andhra Pradesh Higher Judicial , Service and Andhra Pradesh State Judicial Service seeking directions to the respondents in these Writ Petitions to pay House Rent Allowance (for short ''H.R.A.'') to them; some of them in the alternative seek directions to the respondents not to deduct any amount towards rental or maintenance for the houses allotted by the Government and occupied by them.
Writ Petition No. 800 of 1995 is preferred by the Andhra Pradesh Judicial Officers Association (''the Association'' for short) seeking a Writ of Mandamus "declaring that the Andhra Pradesh Public Employment (House Rent Allowance) Rules, 1988 in so far as they relate to the non-payment of House Rent Allowance to the members of the petitioner-Association are concerned as not applicable and to further declare that the members of the petitioner-Association are entitled to receive the House Rent Allowance at the rates admissible at the places of their respective working with effect from 1-4-1994" etc. The General Secretary-cum-Treasurer of this Association gave affidavit in support of this Writ Petition. He states that 700 officers of the Andhra Pradesh Judicial Service, both Higher and Subordinate Judiciary in the cadres of District Judges, Subordinate Judges and District Munsifs are its members. He refers to G.O. (p) No. 19, Finance and Planning (FW.PC.II) Department dated 19-1-1994 under which H.R.A., was fixed and Sub-rule (1) of Rule 2 of the Anders Pradesh Public Employment (House Rent Allowance) Rules, 1988 (for short "The Rules") was amended with effect from 1-1-1994 by providing for payment of H.R.A., as follows:-
"(a) @ 20% of the pay in Twin Cities of Hyderabad & Secunderabad Visakhapatnam, Vijayawada, Warangal, Guntur, Rajahmundry, Nellore, Kakinada, Tirupathi, Nizamabad, Eluru, Cuddapah and Ramagundam;
(b) @ 12 1/2% of pay in all District Head Quarters of the State except those specified above; and
(c) @ 10% of pay in all other places not covered supra."
He also refers to G.O.(P) No. 20, Finance & Planning (FW.PC.II) Department dated 19-1-1994 providing for recovery of rent in respect of Government quarters allotted to Government employees as standard rent fixed in accordance with Fundamental Rule 45-A-IV(b) or 10% of the emoluments, whichever is less, with effect from 1-1-1994. He states that in respect of the members of the Association who have been allotted Government quarters which are occupied by them, the Government of Andhra Pradesh has been withholding H.R.A. (fixed) under Rule 2(1) of the Rules as amended by G.O. (P) No. 19 dated 19-1-1994 and also at the same time recovering rent under G.O.(P) No. 20 dated 19-1-1994. It is contended on behalf of the Association that the Rules applicable to State Government employees for payment of H.R.A., are not applicable to the members of the Association, who are a separate class and that therefore they are entitled to be paid H.R.A., under Sub-rule (1) of Rule 2 of the Rules notwithstanding the fact that they have been allotted Government quarters for which they are paying rents as per the applicable Rules. Similar contentions are raised by the petitioners in the other Writ Petitions.
The main plank on which the petitioners rest their claim made in these Writ Petitions is the decision of the Supreme Court in All India Judges'' Association Vs. Union of India and others, which was reviewed subsequently in All India Judges'' Association and Others Vs. Union of India and Others, . One of the directions given by the Supreme Court in the First AIJA Case is that:
"residential accommodation to every Judicial Officer has to be provided and until State accommodation is available, Government should provide requisitioned accommodation for them by 31-12-1992. In providing residential accommodation, availability of an office room should be kept in view".
In the body of the Judgment, the Supreme Court elaborated as follows:-
"Until adequate governmental accommodation is available, it should be the obligation of the State at the instance of the High Court to provide requisitioned accommodation for every judicial officer according to his entitlement and recovery of not more than twelve and a half per cent of salary of the officer towards rent should be made and the balance should be met by the State Exchequer. We would emphasise the need of provision of a separate and exclusive office room as an indispensable component of every such official residence and the accommodation should take-into account this feature. As a long term measure, Government accommodation should be constructed to meet the need of the judicial Officers at their respective stations."
The Supreme Court further observed as follows:-
"A judicial officer who is not provided residential accommodation is obliged to go in for rented accommodation. In view of the prevailing rate of rent, the smallest accommodation that can be taken may often cost 75 per cent to 100 per cent of the monthly salary, a situation which cannot be countenanced by any logic. It is absolutely necessary that appropriate conditions should be provided for the judicial officer and he should have reasonable mental peace in order that he may perform his duties satisfactorily. Rendering Justice is a difficult job. It is actually a divine act. Unless the judicial Officer has a reasonably worry free mental condition, it would be difficult to expect unsoiled Justice from his hands.
Very often building projects are undertaken for providing residential accommodation to public officers but the requirement of the judicial officer is not taken into account for one reason or the other. Control of the State purse is in the hands of the Executive. As appropriate share of construction expenses is not being provided towards accommodation of judicial Officers, they do not have any quota in the building projects. As a result of this over the years at several places throughout the country residential accommodation for judicial Officers has turned out to be scanty. Many judicial Officers dread postings in Metropolitan towns as residential accommodation is not available and the rental would be exorbitant in respect of private accommodation. The cost of living also becomes heavy."
In view of these circumstances, the Supreme Court held that "provision of an official residence for every judicial Officer should be made mandatory."
In a review petition filed against the Judgment in the First AIJA Case (1 supra), the Judges'' demand for rent-free accommodation was objected to by several States "on the ground that the rent-free accommodation was not given to the members of the other services and that the house rent allowance given was sufficient to meet the needs of the Judges." The Supreme Court clarified in Second AIJA case (2 surpa) as follows:-
"It may be noted in this connection that the direction is not to provide rent-free housing accommodation but accommodation at a rental not exceeding 12 1/2 per cent of the salary of the occupant. We, therefore, reiterate the said direction and reject the objections of the petitioners". (Objecting States).
The Supreme Court did not say anything about the H.R.A. However, the learned counsel for the petitioners rely on the following observations of the Supreme Court in that case while dealing with the question of uniform pay scales:
"Hence we reiterate the importance of such separate commission (Pay Commission) and also of the desirability of prescribing uniform pay scales to the Judges all over the country. Since such pay scales will be the minimum deserved by the judicial Officers, the argument that some of the States may not be able to bear the financial burden is irrelevant. The uniform service conditions as and when laid down would not, of course, affect any special or extra benefits which some States may be bestowing upon their judicial Officers."
The learned counsel contend that H.R.A. is an extra allowance given under the Rules to the Judicial Officers and therefore anything said by the Supreme Court in these two Judgments cannot be relied upon for denying the Judicial Officers that benefit. In support of this, the learned counsel also seek to rely upon the observations of the Supreme Court in the Second AIJA case (2 supra) as regards the distinction between the Judicial service and the other services and that:
"The Judges, at whatever level they may be, represent the State and its authority unlike the administrative executive or the members of the other services. The members of the other services, therefore, cannot be placed on par with the members of the judiciary either constitutionally or functionally."
These observations are sought to be relied upon for contending that even though H.R.A. may be denied to the members of the other services on the ground that they have been provided with Government accommodation, H.R.A. cannot be denied in the case of members of judicial service even though Government accommodation is provided for them because that is an additional benefit which cannot be denied to them merely on the ground that residential accommodation has been provided.
We find that the contention has no merit whatsoever. In one breath, it is sought to be urged that the Rules have no application to members of judicial services and in another breath H.R.A., is claimed by the petitioners under the Rules. It is obvious that the argument that the Rules do not apply to members of Judicial Services is self-defeating because the petitioner''s claim for H.R.A. can only rest on Rule 4 of the Rules. If the petitioners rely on Rule 4 of the Rules, they cannot avoid the operation of Rule 6 contending that the Rules cannot be applied to them on the ground that judicial service is different from other services. Rule 4(1) states that:
"Every Government employee, shall be eligible to draw the allowance at the rates specified in Sub-rules (1), (2) and (3) of Rule 2, as per the place of duty referred to therein."
Judicial Officers can claim H.R.A. only as Government employees under Rule 4(1). Rule 6 states when H.R.A. is not admissible to a Government employee. So far as Judicial Officers are concerned, they are dealt with separately in Rule 6 under Sub-rules (4), (5) and (6) and thus, they are dealt with as separate services distinct from other Government services which have been dealt with under Sub-rules (1) and (2). Sub-rules (4), (5) and (6) of Rule 6 are as follows:-
"(4) The allowance shall not be admissible to the Judicial Officers including Subordinate Judges, District Munsiffs, Judicial Second Class Magistrates and other Judicial (Subordinate) Officers who are provided with Government Quarters.
(5) The allowance shall not be admissible to the District and Sessions Judges whose basic pay is Rs. 3,880/- and below in Revised Pay Scales,1986 and who are eligible for rent free quarters and provided with such quarters.
(6) The allowance shall not be admissible to the District and Sessions Judges whose basic pay is above Rs. 3880/- in Revised Pay Scales, 1986 and who are provided with Government Quarters."
Admittedly, the petitioners in all these Writ Petitions (excepting in Writ Petition No. 800 of 1995, which is by the Association) are in the occupation of Government allotted quarters and therefore, they are directly attracted by these Sub-rules and we do not see how they can wriggle out of reach of these Sub-rules. We have also to point out in this connection that H.R.A. cannot be treated as part of salary. That has been clarified by the Supreme Court in Director, C.P. Crops Research Institute v. M. Purushothaman, AIR 1994 SC 2541. The Supreme Court referred to the definition of ''Pay'' in Fundamental Rule 9(21) and observed:
"It is obvious from this definition that H.R.A. is not part of ''pay''. Further, Fundamental Rule 44 defines Compensatory Allowance'' as follows:-
''F.R. 44. Compensatory allowances.-Subject to the general rule that the amount of compensatory allowance should be so regulated that the allowance is not on the whole a source of profit to the recipient, the Central Government may grant such allowances to any Government servant under its control and may make rules prescribing their amounts and the conditions under which they may be drawn."
The HRA would be covered by the definition of Compensatory Allowance. It is compensation in lieu of accommodation. This definition itself further makes it clear that compensatory allowance is not to be used as a source of profit. It is given only to compensate for the amenities which are not available or provided to the employee. The moment, therefore, the amenities are provided or offered, the employee should cease to be in receipt of the compensation which is given for want of it."
Recently we had an occasion to refer to this decision of the Supreme Court and followed the same in D. Peri Reddy and Others Vs. Govt. of A.P., Finance and Planning Department and Others, . It is not necessary for us to further dilate on this matter because Sub-rules (4), (5) and (6) of Rule 6 of the Rules are clear, unambiguous and categorical in this regard i.e., that H.R.A., cannot be admissible to those judicial Officers who are provided with Government Quarters.
A weak contention is also advanced on behalf of the petitioners that the Rules do not provide for deduction of any percentage towards rent and that therefore, the same cannot be deducted when H.R.A., is denied to them under the Rules. But the deduction towards rent is under F.R. 45-A-IV(b), which reads as follows:-
"F.R. 45-A-IV:-When a Government supplies an officer with a residence leased or owned by Government, the following conditions shall be observed:-
(a) ..... ..... .....
(b) Unless in any case it be otherwise expressly provided in these rules, he shall pay (i) rent for the residence, such rent being the standard rent as defined in Clause III above or 10 per cent of his monthly emoluments, whichever is the less, and (ii) municipal and other taxes payable by Government in respect of residence not being in the nature of house or property tax."
It is not in dispute that the rent that is being deducted in respect of quarters allotted to the petitioners is standard rent or 10% of the monthly salary. It is stated mat as a fact only salary is taken and not ''emoluments'' for the purpose of calculating the 10%. G.O. (P) No. 20 only reiterates that position and does not modify it except in respect of employees who have taken House Building Advance and constructed houses or are in occupation or purchased ready built houses within or outside Twin Cities or in occupation of Government Quarters in the City or in the Districts. We need not say anything in this regard because this deduction is less than what is mentioned by the Supreme Court in the First and Second A1JA cases (1 and 2 supra).
In the result, the Writ Petitions are dismissed. No costs. We make it clear that any interim directions granted pending these Writ Petitions shall stand vacated and it will be open to the respondents to effect recoveries in accordance with Rule 7 of the Rules.