Nishitendu Chaudhury, J. 1. Heard Mr. N. Sailo, learned senior counsel assisted by Mrs. Dinari T. Azyu, learned counsel for the petitioners and Mr. Aldrin Lallawmzuala, learned Addl. A.G., Mizoram appearing on behalf of the State. This is an application under Article 226 of the Constitution of India by 15 Government employees challenging Memorandums dated 20.7.2012 and 29.11.2010 issued by the Government of Mizoram. By the said office Memorandums, it has been held that if a Government employee is staying in the quarter allotted to his/her spouse or parents or brothers or sisters he/she is not entitled to House Rent Allowance (in short HRA). Pursuant to the said office Memorandums, the Government also issued various letters to the employers of the present petitioners demanding recovery of whole amount of money from the petitioners which were paid to them during the entire service period towards HRA. One such order is at Annexure-5 of this writ petition issued on 6.6.2012. By the said letter, the Directorate of Information and Public Relation was directed by the General Administrative Department to inform as to whether P.C. Lalrinthangi, UDC working in the establishment was residing in Government quarter allotted to his/her husband/wife/sister/brother/mother/father Mr. Lalsangzuala Ralte w.e.f. 1.10.2008. A list was annexed to the said letter containing names of all those employees who are alleged to be staying in government quarter allotted to their spouse/parents/brother or sister and yet they are drawing HRA from the government The names of all the petitioners appear in the said list and respective dates are given since when HRA is being received by them. The name of the petitioner, namely, H. Ramthianghlima appears at Sl. No. 22 and it is shown as if he has been drawing HRA since the said date. Direction has also been issued thereby for deduction of arrear HRA already drawn w.e.f. 16.6.2005. It is the case of the writ petitioners that before creation of Union territory or the State of Mizoram, the employees posted in this part of the country were drawing the benefit of HRA even if the employees used to reside in the Government quarters allotted to his/her spouse or parents or brothers or sisters and only the person in whose name the said quarter was allotted was not permitted to draw HRA and rather some fees were collected from him/her for maintenance. The same system continued even after the area had attained the status of Union territory and thereafter as a full-fledged State. But all on a sudden, by the Notification in question, the official respondents have adopted an adverse view. The respondents have sought not only to discontinue paying them HRA on the ground that they have been residing in the Government quarters with their spouse, parents or others but also for recovery of the whole amount in arrear drawn by them so far since beginning. Drawing my attention to Sl. No. 2 of Annexure-5, the learned senior counsel submits that the petitioner, namely, H. Ramthianghlima was initially appointed as subject teacher for higher secondary school on contract basis on 16.6.2005 and was regularly appointed w.e.f. 1.3.2008 yet by the impugned letter under reference a demand for recovery has been made w.e.f. 16.6.2005. Fact remains that no teacher on contractual appointment is entitled to HRA and so the said petitioner No. 1 did not avail any benefit of HRA till there was recovery on 8.3.2008 and such decision of the Government to make recovery from his salary w.e.f. 16.6.2005 is unauthorized and beyond jurisdiction. According to the learned senior counsel the Notification dated 29.11.2010 annexed as Annexure-7 to this writ petition was never circulated among the employees and no one was aware as to whether such a decision was taken by the Government disentitling from claiming HRA even if they stay with their spouse/parents in the Government allotted quarter. It came to light only after Memorandum dated 20.7.2012 was issued proposing punitive action of recovery. According to the learned senior counsel, the petitioners did not make any demand for payment of HRA but the same was paid to them as a routine measure by the concerned Drawing and Disbursing Authority and such routine practice was going on for over a long time as mentioned above. The learned senior counsel has relied on a note under FRSR part IV in regard to Dearness Allowance and HRA. The said Rule is quoted below: "CONDITIONS FOR DRAWAL OF HOUSE RENT ALLOWANCE 5. The learned senior counsel has relied on a note under FRSR part IV in regard to Dearness Allowance and HRA. The said Rule is quoted below: "CONDITIONS FOR DRAWAL OF HOUSE RENT ALLOWANCE 5. (a) *** (b) *** (c) A Government servant shall not be entitled to House Rent Allowance, if- (i) he shares Government accommodation allotted rent-free to another Government servant; or (ii) he/she resides in accommodation allotted to his/her parents/son/daughter by the Central Government, State Government, an Autonomous Public Undertaking or semi-Government Organization such as a Municipality, Port Trust, Nationalized Banks, Life Insurance Corporation of India, etc. (iii) his wife/husband has been allotted accommodation at the same station by the Central Government, State Government, an Autonomous Public Undertaking or semi-Government Organization such as Municipality, Port Trust, etc., whether he/she resides in that accommodation or he/she resides separately in accommodation rented by him/her. (d) *** (e) As an exception to sub-paragraphs (a) and (b) above, Government servants other than a Government servant who is living in a house owned by him shall be eligible for House Rent Allowance at the rates specified in Paragraph 1 above even if they share Government accommodation allotted to other Government servants [excluding those mentioned in (c) above] or private accommodation of other Government servants [including those mentioned in (c)(ii) and (c)(iii) above] subject only to the condition that they pay rent or contribute towards rent or house or property tax but without reference to the amount actually paid or contributed. As an exception to Para. 7, the grant of House Rent Allowance to a Government servant living in his/her own house or to a Government servant living in a house owned by a Hindu Undivided Family in which he is a coparcener, will be without reference to the amount of the gross rental value as assessed by the Municipal authorities. *** NOTE.- In cases where husband/wife/parents, children, two or more of them being Central Government servants or employees of State Governments, Autonomous Public Undertakings or semi-Government Organizations like Municipality, Port Trust, Nationalized Banks, Life Insurance Corporation of India, etc., share accommodation allotted to another Government servant, House Rent Allowance will be admissible to only one of them, at their choice." 2. According to the learned senior counsel the petitioners are covered by the note under the said clause and as such they are entitled to HRA by way of choice. 3. According to the learned senior counsel the petitioners are covered by the note under the said clause and as such they are entitled to HRA by way of choice. 3. Per contra, Mr. Aldrin Lallawmzuala, learned Addl. A.G., Mizoram submits that note under clause 5(e) cannot be applied to the present petitioners and they are definitely covered by the Provision of 5(c)(iii) above which provides that in case a Government employee stays in the quarter of his/her spouse who has already a Government employee he/she will not be entitled to HRA. The learned Addl. A.G., Mizoram also pressed the statements made in the affidavit-in-opposition whereby it has been stated that the present petitioners did not make mention of the real fact and it is one of the reasons for which they were paid this benefit so long. According to learned Additional Advocate General, since the payments were made to the petitioners wrongly they are bound to refund the same in 20 installments and as such there is no scope to exercise power of judicial review. 4. I have gone through the submissions made in the writ petition as well as the affidavit-in-opposition and the affidavit-in-reply available on record. 5. While it is true that neither under the FRSR nor under the Notification under consideration a Government employee staying with his/her spouse or parents or brother or sister in an allotted Government quarter is not entitled to the benefit of HRA. The claim made by the learned senior counsel appearing on behalf of the petitioners that they are covered by the note under rule 5(e) of FRSR as referred to above is not acceptable. Rule 5(c)(iii) quoted above is clear and unambiguous and hence there is no scope to interpret the same. The petitioners are covered by said rule and as such they are not entitled to get HRA till they avail the benefit of government quarter. Now the question arises as to how far the stand taken by the government to recover the amounts already paid to the petitioners over years is tenable, it is discernible from the pleadings of the parties that the practice of giving HRA as a matter of routine to these or this class of employees is coming down for long years since before the State of Mizoram attained Statehood and since the time it was a part of Assam. The government did not look in this aspect of the matter earlier and the practice went on. Under such factual situation the question of making any misrepresentation by the present petitioners does not arise. Moreover, no material has been placed on record to show that the present petitioners who are UDC or driver or holding similar post except petitioners, namely, Mr. H. Ramthianghlima, Dr. Cecilia Lalramhlui and Mrs. Lalramthari were aware of the Government circular issued in the year 2010 or thereafter. It was the incumbent upon the Government to bring it to the notice of the employee as to their entitlement. Had the same been brought to the notice of Government employee who has his/her spouse in the Government service that none of them would be entitled to HRA if any of them is allotted with a Government quarter, then perhaps they would have opted for shifting to a rented accommodation so that both of them could get the benefit of HRA. This is because when a Government employee occupies a quarter allotted by the Government not only a fixed amount is deducted from his/her salary, he/she is also duty bound to make regular payment towards fee/maintenance charge. In a given case, it is conceivable that if both the spouses living in Government quarter opt to stay to their own accommodation/rented accommodation they may be gaining more benefits than availing Government accommodation. So, otherwise also it is not possible on the materials available on record to come to a finding that the present petitioner or similarly situated employees have been deriving the benefit of HRA by way of misrepresentation or that they are playing fraud with the Government. Fact remains that they are not entitled to HRA if they stay in the Government quarter along with their spouse or parents or brothers or sisters but from the pleadings of the parties and after hearing learned counsel it appears that the petitioners were under a bona fide impression that they are entitled to get benefit of HRA in view of note appended to clause 5(e) referred to above. 6. So, what transpires from above is that the petitioners are not entitled to HRA as long as they stay in the government quarters allotted to their spouse, parents, brothers or sisters who are Government employees. 6. So, what transpires from above is that the petitioners are not entitled to HRA as long as they stay in the government quarters allotted to their spouse, parents, brothers or sisters who are Government employees. It also transpires that they have been deriving the benefit of HRA as a bona fide claim of right though not sustainable. They did not commit any misrepresentation and did not play any fraud on the Government for deriving the same. There was no initiative from the side of the State of Mizoram to give any fair chance to the employees in general to acquaint them with this position as to their entitlement vis-a-vis the age old practice. The pro-forma annexed to the writ petition only shows that when a Government employee claims accommodation he/she is to furnish information as to whether he was previously occupying any quarter and whether he has got his own residential accommodation in the place in question. Even the affidavit-in-opposition which is otherwise detailed in nature does not contain any statement that such pro-forma was distributed among the employee in general so as to make them aware of the legal position of HRA. 7. Learned senior counsel Mr. N. Sailo has placed reliance in the case of Syed Abdul Qadir & Ors. vs. State of Bihar & Ors reported in (2009) 3 SCC 475 . The learned counsel has drawn my attention to the paragraphs 57, 58 and 59 of the said judgment of the Hon'ble Supreme Court and the same is quoted below:- "57. This Court, in a catena of decisions, has granted relief against recovery of excess payment of emoluments/allowances if (a) the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee and (b) if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous. 58. The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. 58. The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess. See Sahib Ram vs. State of Haryana, 1995 Supp. (1) SCC 18, Shyam Babu Verma vs. Union of India, [1994] 2 SCC 521; Union of India vs. M. Bhaskar, [1996] 4 SCC 416; V. Ganga Ram vs. Regional Jt., Director, [1997] 6 SCC 139; Col. B.J. Akkara [Retd.] vs. Government of India & Ors. (2006) 11 SCC 709 ; Purshottam Lal Das & Ors., vs. State of Bihar, [2006] 11 SCC 492; Punjab National Bank & Ors. vs. Manjeet Singh & Anr., [2006] 8 SCC 647; and Bihar State Electricity Board & Anr. vs. Bijay Bahadur & Anr., [2000] 10 SCC 99. 59. Undoubtedly, the excess amount that has been paid to the appellants - teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the appellants-teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the appellants-teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellants-teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellants-teachers should be made." 8. Upon perusal of the aforesaid judgment of the Hon'ble Supreme Court it appears that the question of recovery of monetary benefit availed by an employee will arise if such benefit was availed by making misrepresentation or playing fraud. But in a case were the monetary benefit was enjoyed as a routine manner either without demanding for it or without nothing he/she is not entitled to the benefit in that event there is a scope of judicial discrimination in absorbing the employees in question or action of recovery from their salaries in respect of the benefit held thereon. Such judicial discrimination appears to be found in a catena of decisions of the Hon'ble Supreme Court including the one referred to above. Even in the case in hand, the State respondents failed to make out a case that the petitioners avail the benefit of HRA indicate that they are entitled to get it or that they made any misrepresentation or that they made any fraud for getting the benefit. In that view of the matter I hold that the petitioners shall not be entitled to continue getting benefit of HRA henceforward if they share the Government quarter allotted to his/her/parents/brothers/sisters. But the respondents shall not make any recovery from their salaries of the amounts already paid to them by way of HRA in view of the fact that there is nothing on record to come to finding that the petitioners availed this benefit by making misrepresentation or by playing fraud and rather the benefit was given to them as routine course since long time. With these observations, this writ petition is disposed of. However, no order as to costs.