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1995 DIGILAW 130 (PAT)

Swadesh Kumari Verma v. State Of Bihar

1995-02-24

RADHA MOHAN PRASAD

body1995
Judgment 1. In both the writ applications namely, CWJC, No. 1136/94(R) and CWJC No. 1298/94 (R) (hereinafter referred to as the first case and second case respectively) the petitioners have prayed for questing of the same order of the District Education Officer, Ranchi, contained in Memo No. 15048 dated 1st October, 1993, which is purported to have been issued pursuant to the order of the Director, Secondary Education circulated by the District Education Officer. Ranchi, vide memo no. 6334 dated 13th April, 1993 in implementation of which, the payment of house rent allowance to the petitioners have been stopped by the respondent principal, S.J. Doranda Girls High School, who is respondent No. 4. 2. In short, the case of the petitioners in the first writ applications is that the petitioners, who are Assistant Teachers in the said school were getting house rent allowance regularly uptill the impugned order, contained in annexure 1 was issued since the school was taken over by the Government of Bihar, except petitioner No. 1, who was transferred to the school in question in the year 1983 and since thereafter she was getting the house rest allowance continuously till October, 1993 when the impugned order was passed. It is stated that the husband of the petitioner not of the first case is Senior Auditor in the office of the Accountant General, Audit, Bihar, Ranchi and the husband of the petitioner No. 1 is an employee of the Central Government working as Accountant in the office of the Accountant General. According to the petitioners, the husband or wife none of them has been provided with accommodation or quarters. The petitioners also have not been provided with accommodation or a quarters by the State Government and both the petitioners are residing with their husbands in their houses owned by their husbands. The case of the petitioners is that initially they were in a rental house and were being paid house rent allowance as per the rules prevalent. Their further case is that in the Financial Rules of the Central Government, it is provided that if both the husband and wife have been posted in the same place and accommodation has not been provided to either of them and if they reside in the rented house or in their own house, the house rent allowance will be allowed to both of them. 3. 3. In the second case the facts are more or less identical, except that the husband of the petitioner No. 1 is a University Professor of Agrinomy in Birsa Agriculture University, Ranchi and the husband of petitioner No. 1 is Professor of Botany in Ram Lakhan Singh Yadav College, Ranchi, which is in Ranchi University and husband of petitioner No. 3 is an employee of Heavy Engineering Corporation, Ranchi posted as Supervisor in Engineering Section. The case of the petitioners in the second case also is that they are living with their husbands in the houses either belonging to their father or in a rented house and that their husbands have not been provided with any Government accommodation. They were also getting the house rent allowance as per the prescribed rate. But since after the impugned order was passed the payment of house rent allowance to them were stopped by the Principal respondent No. 2. 4. Counter affidavits have been filed on behalf of District Education Officer, Ranchi and Principal of the school (respondent Nos. 3 and 4 respectively) in both the writ applications. The facts aforementioned have not been controverted in the said counter affidavits. However, it has been contended in the said counter affidavits that the Government of Bihar has framed house Rent Allowance Rules in exercise of powers under Article 309 of the Constitution of India vide notification No. 3/A1-3-5/83-5678F dated 13th June. 1980. According to the respondents under rule 8(1) a Government servant living in a house owned by him, his wife, children, father or mother shall also be eligible for house rent allowance on the basis of gross rental value of the house or if he is not in occupation of the entire house or the portion of the house actually occupied by him. gross rental value of the house has to be ascertained in respect of the portion of the house actually occupied by him/her as per the assessed value for municipal purpose or other work. It is contented that the petitioners are entitled to their house rent allowance only on the basis of the gross rental value of the house, in respect of which the petitioners have not furnished any information as per the provisions of the rules referred to above to their superior officers and as such they are not entitled to house rent allowance. 5. 5. I am unable to appreciate this new plea taken in the counter affidavits. From the impugned order on the basis of which the payments of house rent allowances to the petitioners have been admittedly stopped by the Principal, it appears that it has been done pursuant to the direction of the Director. Secondary Education, Bihar, contained in annexures 1 and 3 respectively to the writ applications. According to the said direction, if both husband and wife, who are in State Government service are posted at the same place and if any one of them has not been allotted with a Government quarter, then only one of them will be entitled to receive house rent allowance and that the rule applicable to the employees of the Central Government in that regard shall not be applicable in the case of the employees of the State Government. Here the admitted position is that the petitioners and their husbands both are not in the State Government services. The petitioners are in the State Government service, where as their husbands are either in the Central Government services or in the services of the University or in the service of the Government of India Undertaking. 6. Thus, in my opinion, the instructions issued by the Director will have no application to such Government Servants, where, amongst the husband and wife one of them is only in the State Government Service and the other is in the service of other then the State Government. In any case, it is not a case of the respondents in the counter affidavit that the husband of the petitioners have been receiving house rant allowance. Thus, also the aforementioned direct of the Director of Secondary Education will have no application to the case of the petitioners. 7. It is well settled that an order passed by the authority giving reasons cannot be allowed to be supplemented by way of affidavits filed by the said authority. A reference in this regard may be made to the decision of the Supreme Court in the case of Mohindar Singh Gill & others V/s. Chief Election Commissioner & others reported in AIR 1978 SC 851 . 8. A reference in this regard may be made to the decision of the Supreme Court in the case of Mohindar Singh Gill & others V/s. Chief Election Commissioner & others reported in AIR 1978 SC 851 . 8. Thus, in my opinion, the plea taken in the counter affidavits that as the petitioners have not furnished the information as per the provisions of the rules contained in the Bihar State Employees (House Rent Allowance) Rules, 1980 is of no avail to the respondents to support the impugned order of the District Education Officer and the action taken pursuant there to by the Principal of the said school. 9. Accordingly, the writ applications are allowed and the respondents are directed to release up-to-date house rent allowances to the petitioners forthwith according to the rate prescribed under the rules.