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Judgment
K. Chandru, J.—In these writ petitions, the questions raised are identical. As to whether a Government servant, who was allotted quarters
by the Government was entitled to refuse to pay HRA or to allow the HRA to be recovered on the ground that the Government servant staying on
his own accommodation or that the quarters are not properly maintained.
In W.P. No. 3546 of 2008, the case of the Petitioner was that the residential quarters was not allotted to the Petitioner and therefore, he is not
liable to pay any HRA.
On notice from this Court, a counter affidavit has been filed and the Respondent is represented by Mr. K.M. Vijayakumar, learned Additional
Government Pleader, has also produced a typed set of papers containing order dated 27.04.2007 in which the quarters Kurunchi-I, No. 3 was
allotted to the Petitioner. Counter affidavit also prescribes the nature of quarters allotted to the Petitioner and that the Petitioner did not make use
of such allotment.
In the other writ Petitioners are Assistant Agricultural Officers under the control of the Assistant Director of Agriculture. They have come
forward to challenge the actions of the Respondents in deducting the amounts towards HRA on the ground that the Government quarters is not fit
for living and they are living in private accommodation. On notice from this Court, the Respondents have also filed counter affidavits.
In all the writ petitions, the question with reference to the unfitness of the quarters, was denied. It is also claimed that unless the quarters were
certified that the quarters were unfit for living by an appropriate Engineer from the Public Works Department, the Petitioners cannot disown the
liability to pay the HRA.
In an identical circumstance, similar matters came up before this Court in W.P. No. 25633 of 2008 in P. Kasimaayan and Ors. v. The Director
of Agriculture, Chennai-5 and Ors. and the claim of the Petitioners was rejected by an order dated 08.02.2010.
More or less in an identical circumstance, the Supreme Court dealing with the recovery of HRA even for an unallotted accommodation in a
decision in Director, Central Plantation Crops Research Institute v. M. Purushothaman 1995 Supp (4) SCC 633 held in paragraphs 5 and 6 as
follows:
It is clear from the aforesaid provisions that paragraphs 4(a)(i) and (ii) lay down the procedure for making application for accommodation.
Paragraph 4(b)(i) lays down the consequences on refusal to accept the accommodation when offered. There is no doubt that paragraphs 4(a)(i)
and (ii) state that an application has to be made to secure accommodation. However, that does not mean that the Government or the organisation
such as the Appellant-Organisation to which the said provisions apply, cannot on their own offer accommodation to the employees. Hence the
reason given by the Tribunal that it is only if the employee applies for such accommodation and he refuses to accept the same when offered that he
would be disentitled to HRA, is not correct. It must be remembered in this connection that the Government or the organisation of the kind of the
Appellant spends huge public funds for constructing quarters for their employees both for the convenience of the Management as well as of the
employees. The investment thus made in constructing and maintaining the quarters will be a waste if they are to lie unoccupied. HRA is not a matter
of right. It is in lieu of the accommodation not made available to the employees. This being the case, it follows that whenever the accommodation is
offered the employees have either to accept it or to forfeit HRA. The Management cannot be saddled with double liability, viz., to construct and
maintain the quarters as well as to pay HRA. This is the rationale of the provisions of paragraph 4 of the said Government Office Memorandum.
It is for this reason again that paragraph 4(b)(i) provides that HRA shall not be admissible to those who occupy accommodation provided for
them as well as to those to whom accommodation has been offered but who have refused to accept it. The provisions of paragraph 4(b)(i) are
independent of the provisions of paragraphs 4(a)(i) and (ii). Whereas paragraphs 4(a)(i) and (ii) speak of procedure to be followed by the
employees who are in need of accommodation, paragraph 4(b)(i) provides for the forfeiture of HRA even when the accommodation has been
offered on its own by the Management whether the application for the same has been made or not. There is no distinction made in this provision
between those who have applied and those who have not applied for accommodation. Even otherwise, we are of the view that the distinction
sought to be made by the Tribunal is, on the face of it, irrational, particularly taking into consideration the resources spent on constructing the
quarters.
(Emphasis added)
With reference to the scope of judicial review in the matter of housing accommodation, once again, the Supreme Court in State of Orissa and
Others Vs. Gopinath Dash and Others, in paragraphs 5 to 8 held as follows:
While exercising the power of judicial review of administrative action, the Court is not the Appellate Authority and the Constitution does not
permit the Court to direct or advise the executive in the matter of policy or to sermonise qua any matter which under the Constitution lies within the
sphere of the legislature or the executive, provided these authorities do not transgress their constitutional limits or statutory power. See Asif
Hameed v. State of J&K and Shri Sitaram Sugar Co. Ltd. v. Union of India. The scope of judicial enquiry is confined to the question whether the
decision taken by the Government is against any statutory provisions or it violates the fundamental rights of the citizens or is opposed to the
provisions of the Constitution. Thus, the position is that even if the decision taken by the Government does not appear to be agreeable to the
Court, it cannot interfere.
The correctness of the reasons which prompted the Government in decision-making taking one course of action instead of another is not a
matter of concern in judicial review and the Court is not the appropriate forum for such investigation.
The policy decision must be left to the Government as it alone can adopt which policy should be adopted after considering all the points from
different angles. In the matter of policy decisions or exercise of discretion by the Government so long as the infringement of fundamental right is not
shown the courts will have no occasion to interfere and the Court will not and should not substitute its own judgment for the judgment of the
executive in such matters. In assessing the propriety of a decision of the Government the Court cannot interfere even if a second view is possible
from that of the Government.
The Court should constantly remind itself of what the Supreme Court of the United States said in Metropolis Theater Co. v. City of Chicago:
The problems of government are practical ones and may justify, if they do not require, rough accommodations, illogical it may be, and unscientific.
But even such criticism should not be hastily expressed. What is the best is not always discernible, the wisdom of any choice may be disputed or
condemned. Mere errors of government are not subject to our judicial review.
In the light of the above, all the writ petitions stand dismissed. No costs. Consequently, connected miscellaneous petitions are closed.