Satish Kumar s/o Shri Bishambhar Dayal vs Union Of India

Heard learned counsel for the parties.

The reasoned order passed by the Central Administrative

Tribunal is dated 7th August, 2012 by which Original Applications

filed by the writ petitioners of Civil Writ Petition No.14792/2015

and 2775/2016 were dismissed. The order dated 7 th September,

2012, challenged in Civil Writ Petition No.2774/2016, follows the

order dated 7th August, 2012.

Thus, learned counsel for the parties concede that the

legality of the order dated 7th August, 2012 needs to be

considered.

Issue concerns entitlement of House Rent Allowance to the

petitioners, all of whom are employees of the Union of India.

Concededly, the writ petitioners reside in buildings owned by

them. Concededly, all were allotted a government quarter without

an application being submitted by them. All writ petitioners

refused to shift to the government accommodation. The

respondents stopped disbursement of House Rent Allowance from

the date government accommodation was allotted to the writ

petitioners.

Relying upon the Fundamental Rules and House Rent

Allowance Rules, the writ petitioners approached the Tribunal

challenging the decision taken by the Union of India.

After noting the various applicable rules the Tribunal noted

that the issue raised before it was conclusively set at rest by a

decision of the Supreme Court reported as 1994(3) S.L.J. 237,

Director, Central Plantation Crops Research Institute,

Kasagargod & Ors. vs. M. Purushothaman & Ors. Paragraphs

3, 4, 8 & 9 of the decision pronounced by the Supreme Court have

been quoted in paragraph 13 of the impugned order dated 7 th

August, 2012. The said paragraphs are being reproduced by us in

our decision they read as under:

"3. It cannot be disputed and it does not appear to have been disputed before the Tribunal that it is para 4 of the Office Memorandum dated 27.11.1965 of the Government of India, Ministry of Finance which would govern the present case. The relevant portion of the said paragraph reads as follows: "4. The grant of house rent allowance shall be subject to the following conditions:- (a)(i) To those Government servants who are eligible for Government accommodation, the allowance will be admissible only if they have applied for such accommodation in accordance with the prescribed procedure, if any, but have not been provided with it, in places where due to availability of surplus Government accommodation, special orders are issued by the Ministry of Works and Housing from time to time making it Obligatory for employees concerned to obtain and furnish ''no accommodation'' certificate in respect of government residential accommodation at their place of posting. In all other places no such certificate is necessary. (ii) Government servants posted in localities where there is at present no residential accommodation in the general pool owned or requisitioned by the Central Government for allotment to them, need not apply for government residential accommodation in order to become eligible for house rent allowance. But where Government quarters are available far the staff of specified Departments or for specified categories of staff, the procedure for applying for accommodation will be regulated under the rules of allotment of the Department concerned or of the local office of the Central Public Works Department, as the case may be. [b](i) The allowance shall not be admissible to those who occupy accommodation provided by Government or those to whom accommodation has been offered by Government but who have refused it. In the latter case, the allowance will not be admissible for the period for which a Government servant is debarred from further allotment of Government accommodation under the allotment rules applicable to him. (ii) The house rent allowance drawn by a Government servant, who accepts allotment of Government accommodation, shall be stopped from the date of occupation, or from the eight day after the date of allotment of Government accommodation, whichever, is earlier. In case of refusal of allotment of Government accommodation, house rent allowance shall cease to be admissible from the date of allotment of Government accommodation. In case of surrender of Government accommodation, the

house rent allowance, if otherwise admissible, will be payable from the date of such surrender." 4. 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 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 the 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. The 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 the HRA, The management cannot be saddled with double liability, viz., to construct and maintain the quarters as well as to pay the HRA.

This is the rationale of the provisions of paragraph 4 of the said Government Office Memorandum.

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 hot 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. We wish the Tribunal had perused the definition of "pay and compensatory allowance" given in the Fundamental Rules before pronouncing that the HRA is a part of the wages or pay and, therefore, cannot be disturbed. 9. For both these reasons, therefore, we are unable to accept the conclusion of the Tribunal."

The ratio of law laid down by the Supreme Court has been

highlighted by us while reproducing para 4 of the decision of the

Supreme Court.

Learned counsel for the petitioners has reiterated the

arguments which were advanced before the Tribunal. Called upon

to show to us whether the decision of the Supreme Court can be

distinguished, learned counsel for the petitioners is unable to do

so.

Since the controversy has been settled by the Supreme

Court and the decision of the Tribunal follows the law declared by

the Supreme Court, we dismiss the writ petitions but without any

order as to cost.