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Madhya Pradesh High Court · body

2011 DIGILAW 849 (MP)

Chunnilal Sen v. State of M. P.

2011-08-01

K.K.TRIVEDI

body2011
ORDER K.K. Trivedi, J. 1. Since common questions is involved in these writ petitions they were heard together. This order shall also govern the disposal of W.P. No. 9218/2006 (S) and W.P. No. 9219/2006 (S). The facts and documents referred in this order are taken from W.P. No. 9524/2007. 2. By this petition under Article 226 of the Constitution of India, the petitioner has challenged the validity of order dated 15-3-2007 passed by respondent No. 2 by which the House Rent Allowance (hereinafter referred to as 'HRA') has been denied to the petitioner, stating that in terms of the instructions issued by the respondent No. 1 HRA is not included in the pay and, therefore, the petitioner will not be entitled to the same. It is the contention of the petitioner that he was being paid the HRA but all of a sudden such orders have been issued withholding the HRA. It is further contended by the petitioner that by filing O.A. No. 598/2002 before the M. P. Administrative Tribunal Bench at Bhopal claiming the benefit of minimum of the pay of the post of Lower Division Clerk/ Assistant Grade-III from the date of his appointment of the said post was claimed by the petitioner. The petitioner brought to the notice a decision of the Tribunal rendered in the case of Bharat Darshan Shrivastava vs. State of M.P. The said original application came before this Court after closer of the Tribunal and was registered as W. P. No. 26702/2003. The said matter was listed before this Court on 4-11-2004 and this Court after considering the order passed by the Tribunal in Bharat Darshan Shrivastava and others (supra) disposed of the writ petition with a direction to the respondents to consider the claim of the petitioner within a period of six months and if his case was identical to the case of Bharat Darshan Shrivastava (supra), pass an appropriate order and grant the benefit as per the order passed by the Tribunal in the aforesaid case. It is the contention of the petitioner that the claim with respect to HRA was also considered in the case of Bharat Darshan Shrivastava (supra) by the Tribunal and it was categorically held that, since the matter relating to grant of such benefit to daily wagers also, has travelled upto the Apex Court and all such orders of the Tribunal have been affirmed, and since the persons like Bharat Darshan Shrivastava were living in their own houses they be granted the benefit of HRA along with the salary. It is contended by the petitioner that in view of the aforesaid the order was passed in his favour on 3-6-2004 and he was extended all the benefits of the minimum of the pay scale available to the post of Assistant Grade-III and other allowances payable with the said scale. Accordingly, the petitioner was getting the HRA also. Now contending that the HRA is not the part of the allowances which are sanctioned along with the pay, petitioner will not be entitled to such benefit, the order impugned has been passed which is contrary to the law settled by the Tribunal, affirmed by this Court as also by the Apex Court. Therefore, the prayer is made for quashing of the order impugned. 3. The respondents in their return have contended that the definition of 'pay' as given in Fundamental Rule 9(21) means only the pay, other than special pay or the pay granted in lieu of his personal qualifications, which has been sanctioned for the post held by him substantively or in an officiating capacity or to which he is entitled by reason of his position in a cadre. According to them HRA is not including in the pay and, therefore, as per the aforesaid definition, the person like petitioner will not be entitled to the benefit of HRA. However, relying on the case of Secretary, State of Karnataka and others vs. Uma Devi and others, 2006 (4) SCC 1 , it has been contended by the respondents that while issuing the directions to make the scheme for regularization of daily wagers, it has been said that the persons like petitioners would be given a minimum of the pay scale of the post on which they are working as daily wagers. It is therefore, submitted by the respondents that the petitioner will not be entitled to the benefit of HRA. It is therefore, submitted by the respondents that the petitioner will not be entitled to the benefit of HRA. Thus, it is contended that the petition is misconceived and is liable to be dismissed. 4. In the considered opinion of this Court the entire stand taken by the respondents is incorrect and rests on wrong interpretation of word 'pay'. In fact what is required to be seen is the emoluments which an employee gets as a salary every month. This particular aspect was already considered by the Tribunal in an application filed before the said Tribunal by Bharat Darshan Shrivastava and specific order was passed in O.A. No. 400/94 on 15-12-1997. From the order passed in M.A. No. 71/1998 by the M. P. Administrative Tribunal Bench at Bhopal Annexure P-3 to the writ petition, it is clear that order passed by the Tribunal was assailed before the Division Bench of this Court by respondents/ State but the said writ petition was dismissed. The respondents/State preferred a Special Leave Petition before the Supreme Court but the same was also dismissed. Therefore, the decision rendered by the Tribunal becomes final and binding on the State. The very same decision was relied by the petitioner. The orders passed in aforesaid M.A. No. 71/1998 further indicates that the word 'HRA' was interpreted properly and it was categorically held that those daily wagers who were granted benefit of minimum of the pay scale, by virtue of the aforesaid orders, were also entitled to grant of HRA. This being so, the petitioner was also given the same order by the respondents on their own on 3-6-2004. By a subsequent order said to be issued by the respondent No. 1 with reference to a case of a different person which could not have been made applicable to the case of the petitioner the benefit of HRA has been withdrawn by the respondents, by the impugned order, from the petitioner. What was the circumstances in the said case, whether the case of Shri. Sudip Trivedi, who filed the Original Application before the Tribunal was identical or different, nothing has been indicated. How and why the said person was not entitled to grant of HRA is also not clear. What was the circumstances in the said case, whether the case of Shri. Sudip Trivedi, who filed the Original Application before the Tribunal was identical or different, nothing has been indicated. How and why the said person was not entitled to grant of HRA is also not clear. If the person was specifically granted the benefit of order passed by the Tribunal in the case of Bharat Darshan Shrivastava (supra), he was entitled to HRA also which according to the order of respondent issued on 3-6-2004 was made available to the petitioner. 5. The entire confusion is, whether an employee is entitled to grant of HRA or not? HRA is a special allowance prescribed under a scheme made by the State to grant benefit of allowances, in case such employees are not allotted the Government accommodation. Looking to the number of employees, it is quite difficult for the State to provide residential accommodation or quarters to all employees engaged by the State. The scheme of HRA is therefore introduced to grant some benefit to those employees, who are living in their own houses and are working for the State. This being so, this allowance has not been specifically mentioned under Fundamental Rules or under other service Rules but the scheme is squarely applicable to all employees of the State. Therefore, it was not right on the part of the respondents/State to say that since under definition of 'pay' as given under Fundamental Rules, HRA is not added, the petitioner will not be entitled to the same. Secondly, in case of Uma Devi (supra) the Apex Court has granted solace or some sort of relief for those employees who are said to be working as daily wagers for a period of more than 10 years but are not being considered for regularization for one reason or another. The Apex Court has simply said that those who were working as daily wagers for a long period be given certain benefit or the minimum of the pay scale. That by itself will not amount as if the Supreme Court has denied the grant of other allowances to such daily wager employees. It is only a direction to the competent authority to make the scheme in this respect. This being so, the reliance placed by the respondents in the case of Uma Devi (supra) is totally misconceived. That by itself will not amount as if the Supreme Court has denied the grant of other allowances to such daily wager employees. It is only a direction to the competent authority to make the scheme in this respect. This being so, the reliance placed by the respondents in the case of Uma Devi (supra) is totally misconceived. The said decision will not be attracted in the present cases. 6. For the reasons aforesaid, the order passed by respondents cannot be sustained and therefore, the order impugned dated 15-3-2007 (Annexure P-5) is hereby quashed. The respondents are directed to pay the HRA to the petitioner which he was getting from the date the benefit of regular pay scale was made available to him on the fixation of salary as is indicated in document (Annexure P-4) it was specifically said that the petitioner was being paid HRA ' Rs. 244/-per month. The arrears of HRA be paid to the petitioner within a period of two months from the date of receipt of certified copy of the order passed today and to continue to pay the said benefit to the petitioner. 7. With the aforesaid directions, the writ petition is allowed and disposed of but with no order as to costs.