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2012 DIGILAW 164 (HP)

Hem Raj v. State Of Himachal Pradesh

2012-04-05

DHARAM CHAND CHAUDHARY

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JUDGMENT : Dharam Chand Chaudhary, J. The petitioner initially was engaged as a Beldar on daily wage basis by respondent No.3 in the year 1981. He was regularised as such on 18.1.1997, vide Order Annexure A-1, in the pay-scale of Rs. 750-1410, with effect from 1.4.1995, with all consequential benefits. He joined as such in Govt. Food Grain Godown at Dehra. Subsequently, the petitioner, vide order dated 26.2.2001 of respondent No.2, was transferred and posted as Godown Chowkidar in Food Grain Godown, Nagrota Bagwan. Consequently, he reported for duties there. Later on, he made a representation to the third respondent, with a request to release House Rent Allowance (HRA) as per his entitlement. 2. On representation of the petitioner, the Inspector Food and Supplies, Nagrota Bagwan, made an endorsement that the petitioner had not occupied the Chowkidar Hut and that the said hut was being used for storing old record since long, but the same had adequate facility for being occupied by anyone. The representation of the petitioner was forwarded to the third respondent vide Annexure A-2. According to the petitioner, irrespective of the Inspector, Food & Supplies, Nagrota Bagwan having made endorsement to the effect that the Chowkiodar hut was not vacant and rather was being used as record room since long and moreover there was no adequate facility in the said hut for being occupied by anyone, he was denied the payment of HRA, informing him vide Annexure A-4 that such allowance was not admissible to him as he was entitled to occupy earmarked accommodation existing there and also that he had never sought permission to occupy private accommodation at Nagrota Bagwan. 3. Petitioner then filed reply Annexure A-5 to Annexure A-4, on which the second respondent, vide Annexure A-6, directed the third respondent to settle the dispute at his own level. The third respondent ultimately denied the payment of HRA to the petitioner vide Annexure A-7, on the ground that he had not stayed in any private accommodation at Nagrota Bagwan and rather used to go to his native place daily. 4. Further grievance of the petitioner is that he was not released the benefit of proficiency step-up on completion of 8 years service, in terms of Clause 2(i)(a)&(b) of the Assured Career Progression Scheme (Annexure A-8). 5. 4. Further grievance of the petitioner is that he was not released the benefit of proficiency step-up on completion of 8 years service, in terms of Clause 2(i)(a)&(b) of the Assured Career Progression Scheme (Annexure A-8). 5. In view of the above submissions, the petitioner has sought the following reliefs in this petition, which initially was filed before the erstwhile Himachal Pradesh Administrative Tribunal and on its abolition came to be transferred to this Court for disposal: "i) that the respondents may be directed to release the arrears of HRA w.e.f. April 2001 to Sept. 2003 forthwith. (ii) That the orders dated 18.3.2004 vide Annexure A-7 issued by the respondent No.3 denying arrears of HRA may kindly be quashed and set aside. (iii) That the respondents may be directed to release the benefit of proficiency increment and higher scale after 8 years of service from 1.4.2003 (as applicant served under the respondent No.3 trill Sept. 2003 before coming to the HPAT on secondment) with all arrears forthwith. (iv) That the respondents may be directed to release of HRA and the pay fixation benefit under ACP scheme alongwith interest from the due dates @ 18% per annum till realisation forthwith." 6. In reply, the respondents have come up with the version that the ear-marked rent free accommodation was available at Nagrota Bagwan, but the petitioner intentionally did not occupy the same and rather used to go to his native place everyday, without seeking permission of the competent authority. Annexure R-1 to the reply is relied upon in this behalf. 7. As regards the benefit of ACP Scheme, it is submitted that on regularisation of the petitioner as Godown Chowkidar w.e.f. 1.4.1995, he resumed is duties on 29.1.1997, after production of a medical fitness certificate as required under FR-10 (Chapter -I II of FRSR Part-I General Rules), Annexure R-2 and eight years service, mandatory for grant of such benefit, has to be reckoned from 29.1.1997. While producing FR-10 in the reply, it has been further submitted as under: "In view of the provision of FR 10 the case of the applicant including other Godown chowkidars has been referred to the Govt. While producing FR-10 in the reply, it has been further submitted as under: "In view of the provision of FR 10 the case of the applicant including other Godown chowkidars has been referred to the Govt. for relaxation under F.R. by the replying respondent Department on dated 10.7.23003 and as and when the relaxation is received from the Govt., the applicant will be granted 8 years benefits under Assured Career Progression Scheme w.e.f. 1.4.2003 or as the case may be. Thus nothing wrong has been done with the applicant, as alleged in this para." The petition has thus been sought to be dismissed. 8. In the rejoinder, the petitioner has denied the contentions to the contrary being wrong and reiterated his case as set out in the petition. 9. I have heard Shri Ranjan Sharma, Advocate, learned counsel, representing the petitioner and Shri J.K. Verma, learned Deputy Advocate General, on behalf of the respondents and also gone through the record. 10. As noticed supra, the points in issue, which need redressal in this petition, are qua the entitlement of the petitioner to the benefit of proficiency step up on completion of 8 years service on regular basis under Assured Career Progression Scheme, 1998 (Annexure R-2/1) and the release of HRA for the period from April 2001 to September 2003, when the petitioner remained posted as Godown Chowkidar at Nagrota Bagwan. 11. So far as the grant of 8 years benefit under Assured Career Progression Scheme is concerned, the controversy in this behalf has been set at rest by the respondents as the case of the petitioner, including similarly situated Chowkidars, has already been referred to the competent authority on 10.7.2003, for relaxation of provision contained in FR 10. It has been so stated by the respondents in reply to para 3 of the writ petition, reproduced hereinabove. Respondents have rather undertaken to release such benefit to the petitioner as and when relaxation sought in the matter is received from such competent authority. The benefit under ACP Scheme might have been received by the petitioner by now. However, the learned counsel, on both sides, had no instruction in this behalf. 12. Respondents have rather undertaken to release such benefit to the petitioner as and when relaxation sought in the matter is received from such competent authority. The benefit under ACP Scheme might have been received by the petitioner by now. However, the learned counsel, on both sides, had no instruction in this behalf. 12. Anyhow, in view of the admission of the respondents qua this aspect of the matter, it is held that nothing in this behalf is now left to be adjudicated upon in this writ petition, save and except a direction to the respondents to expedite the relaxation as sought in this behalf and release such benefit to the petitioner forthwith, if not already released. 13. Now coming to the question of entitlement of the petitioner to payment of HRA for the period from April, 2001 to September, 2003, undisputedly, there was a chowkidar hut situated adjoining to the Food Grain Godwon at Nagrota Bagwan. The petitioner being appointed as Godown Chowkidar was expected to have occupied the said hut. He, however, claimed HRA vide his application, Annexure A-2 made to third respondent, on the ground that he had not occupied the said accommodation (chowkidars hut), as there was no provision for electricity & water facilities therein. 14. The petitioner made another application Annexure A-3 to the third respondent to release the arrears of HRA w.e.f. April, 2001 to September, 2003. His request was turned down by the third respondent vide Annexure A-4, on the ground that in view of there being an ear-marked accommodation available for the Chowkidar at Nagrota Bagwan and also on account of the requisite information sought from the petitioner, vide letter dated 30.1.2004, having not been made available by him, he was not entitled to HRA, as per the policy of the Government. 15. In reply Annexure A-5 to Annexure A-4, the petitioner has reiterated his entitlement to the release of HRA for the period, in question, on the ground that the chowkidar hut at Nagarota Bagwan, as per the report of Inspector, Food & Supplies, was not having any facility for being occupied by anyone and rather was being used as store to keep old records therein. The petitioner seems to have made a similar request to the second respondent also, who vide letter Annexure A-6, asked the third respondent to settle such claim of the petitioner, after verification at his own level. The petitioner seems to have made a similar request to the second respondent also, who vide letter Annexure A-6, asked the third respondent to settle such claim of the petitioner, after verification at his own level. In turn, the third respondent had informed the second respondent, vide letter Annexure A-7 that the petitioner was not entitled to the grant of HRA, as he did not occupy the rent free Government accommodation and rather had been going to his native place everyday either by train or sometime in the trucks of Food Corporation of India. The claim of the petitioner was, thus, rejected and a copy of Annexure A-7 was endorsed to him. 16. It is in the above scenario that the issue regarding payment of HRA to the petitioner is to be determined. 17. The petitioner is not justified in submitting that as per the report by the Inspector, Food and Supplies, Nagrota Bagwan, rent free accommodation (Chowkidar Hut) adjoining to the Food Grain Godown at Nagrota Bagwan was not having adequate facility for being occupied by anyone, for the reason that Food Inspector had only reported that old record had been kept in that hut, but the same was having adequate facility for being occupied by anyone. While the petitioner claims that the facility of electricity and water etc. was not there in the hut, the Food Inspector, without specifically pointing out availability of such facilities, had made a general report about the availability of all facilities. Neither the petitioner approached the respondent with the prayer that facilities of electricity and water may be provided in such accommodation so that he could occupy the same nor is it the case of the respondents that the provision for electricity and water was already there in the hut or that the provision thereof was made and the petitioner could have occupied the same. 18. The fact, however, remains that the petitioner did not occupy the Government accommodation and rather had been going to his native place everyday during his posting at Nagrota Bagwan, because there is no denial thereto in the rejoinder. Rather, he came forward with a plea that an employee is entitled to the payment of HRA irrespective of the fact whether he/she resides at his/her place of posting or not. 19. Admittedly, the chowkidars hut was existing there adjoining to the Food Grain Godown. Rather, he came forward with a plea that an employee is entitled to the payment of HRA irrespective of the fact whether he/she resides at his/her place of posting or not. 19. Admittedly, the chowkidars hut was existing there adjoining to the Food Grain Godown. The petitioner being posted as Godown Chowkidar should have made a request to the respondents to remove the old record kept therein and occupy the same. So far as the provision of electricity and water is concerned, the accommodation being ear-marked for a Chowkidar, the petitioner should have made an application for making the provision thereof in the hut. Had on the request of the petitioner the respondents not removed the old records and taken the requisite steps for making provision of electricity and water in the accommodation, in question, it was only in that eventuality that he would have been entitled to claim HRA. 20. Above all, had the accommodation not been habitable, the petitioner could have sought the permission of the respondents to allow him to live in private accommodation, including his own house at his native place. He, however, did not obtain any such permission. Thus, the over all conduct and various acts on the part of the petitioner lead to the only conclusion that he was not interested to occupy the accommodation, in question. 21. At this juncture, it would be appropriate to make reference to OM No. Fin(C)-B (7)-36/77 of the year 1983, referred to by the petitioner himself in para 14 of the rejoinder. As per this provision, a Government servant who either is in occupation of an accommodation provided by the Government or who refuses accommodation offered by the Government or who leaves such accommodation is not entitled to the payment of HRA. Similar provision finds mention in Rule 4 of Chapter (HRA and CCA-General Rules and Orders) Swami's Compilation of FRSR, Part-V, which reads as under: "4(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." 22. 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." 22. The petitioner is not justified in claiming that the accommodation was never allotted to him nor was he ever directed to occupy the same, for the reason that the accommodation being ear-marked, no formal orders of its allotment to the petitioner were required to be issued. As observed supra, it was for the petitioner himself to have occupied the same, after getting the records kept therein shifted from the respondents to some other place. He instead of doing so, refused to occupy the same on the pretext that facilities such as electricity and water etc. were not available therein, which part of his case, has appropriately been dealt with hereinabove. 23. The present is, thus, a case of implied refusal to occupy the accommodation on the part of the petitioner. He, on the other hand, at his own and without seeking any permission from the competent authority, was residing somewhere else and may be at his native place, because there is no denial to this part of respondents' case in the rejoinder filed to the reply. This Court need not enter into this controversy, as it was for the respondents to have taken appropriate action at an appropriate stage against the petitioner for such misconduct, if any, on his part. 24. In the light of the above position, the only inescapable conclusion would be that the respondents have rightly refused the benefit of HRA for the period from 1.4.2001 to September, 2003 to the petitioner. The impugned order Annexure A-7, thus, neither suffers from any infirmity nor can it be held to be illegal. 25. For the foregoing reasons, this petition partly succeeds and the same is accordingly allowed. Consequently, the respondents are directed to pay the amount due and admissible to the petitioner, on account of completion of eight years service, under Assured Career Progression Scheme, within three months from today, if not already paid, failing which it shall carry interest @ 6% per annum from the date of institution of this petition till realisation thereof. So far as the prayer of the petitioner for payment of HRA for the period in question is concerned, the same is rejected. 26. So far as the prayer of the petitioner for payment of HRA for the period in question is concerned, the same is rejected. 26. The writ petition stands disposed of, in the aforesaid terms.