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2017 DIGILAW 768 (GAU)

Vivek Paliwal v. Union of India

2017-06-09

L.S.JAMIR

body2017
JUDGMENT AND ORDER : L.S. Jamir, J. 1. Heard Ms. R. Borah, learned counsel for the petitioner. Also heard Mr. Z. N. Ngullie, learned C.G.C appearing for all the respondents. 2. On being selected by the Union Public Service Commission, the petitioner joined Border Road Organization (BRO) as Medical Officer Grade-2 on 09-03-2000. He was posted to HQ CE (P) Beacon located in Srinagar under Kashmir Valley on 03-11-2007. While being posted under the Kashmir Valley, the petitioner was covered by the Kashmir Valley Package provided by the Office Memorandum dated 27-03-2009. The petitioner was allotted Government Married Accommodation with effect from 17-11-2007 and he had resided with his family at the Kashmir Valley. Thereafter, on 09-03-2011, as provided under the Office Memorandum dated 27-03-2009, the petitioner opted for the Selected Place of Residence (hereinafter referred to as "SPR") on 09-03-2011 and declared Lucknow as his SPR. The declared SPR (Lucknow) was permitted by the respondents and therefore, the petitioners kept his family at Lucknow. While the petitioner was keeping his family at the declared SPR, he was posted out from Srinagar on 02-04-2011 to report to HQ 763 BRTF located at Tawang (Arunachal Pradesh). After his arrival at Tawang, the petitioner was allotted single officer accommodation for the full tenure i.e. from 02-04-2011 to 13-01-2014. By a communication dated 14-02-2011 written by the Headquarters 763 BRTF, the petitioner was also informed that the station is lacking married accommodation and schooling facility. Thereafter, the petitioner was further posted out from Tawang to Headquarter CE (P), Sewak, Dimapur on 14-01-2014. While the petitioner was posted at Tawang, no HRA was granted to the petitioner as provided by the Office Memorandum dated 22-07-1998. Being aggrieved, the petitioner has filed the present writ petition. 3. Ms. R. Borah, learned counsel for the petitioner submits that while the petitioner was posted at Kashmir Valley, he was covered under the Kashmir Valley Package as provided by Office Memorandum dated 27-03-2009 and therefore, at the fag end of his tenure in the Kashmir Valley, he had opted for the SPR and kept his family at Lucknow which was also permitted by the respondents. Thereafter, on his posting from the Kashmir Valley to Tawang, the petitioner was also informed that there was only single officer accommodation and no schooling facility and therefore, the petitioner continued to keep his family at Lucknow (SPR) and as such, the petitioner is entitled to HRA as provided under the Office Memorandum dated 22-07-1998. It is submitted that prior to his posting out from Kashmir Valley and as permitted by the respondents, the petitioner had exercised his option to keep his family at Lucknow (SPR). Therefore, in terms of the Office Memorandum dated 22-09-1998, the petitioner is entitled to HRA during his tenure at Tawang inasmuch as, he has been posted from the Kashmir Valley to the North Eastern Region and that his family was kept in his last place of posting/SPR. 4. Mr. Z. N. Ngullie, learned C.G.C appearing on behalf of all the respondents on the other hand, submits that while the petitioner was being posted at the Kashmir Valley, he was provided Government Accommodation and he resided in the Kashmir Valley with his family. Therefore, as he has been posted to the North-Eastern Region, the petitioner is not entitled to HRA inasmuch as, the Office Memorandum dated 22-07-1998 provides only for those civilian central employees who are posted from outside the North-Eastern Region and who continue to keep the family at the last duty station shall be entitled to HRA. In the present case, as the last place of posting of the petitioner is Kashmir Valley and as his family is not being kept in the last duty station, the petitioner is not entitled to HRA. He further states that on his posting from Tawang to Dimapur, the petitioner has been provided with family accommodation and he is residing with his family at Dimapur. In that view of the matter, the petitioner is not entitled to HRA for his tenure while being posted at Tawang/763 BRTF. 5. I have heard the submissions forwarded by the learned counsel for the parties. 6. It is an admitted fact that the petitioner was posted to the Kashmir Valley on 03-11-2007. While being posted in the Kashmir Valley, the petitioner was covered by Office Memorandum dated 27-03-2009. The relevant portion of the Office Memorandum dated 27-03-2009 is reproduced herein below:- "Details of package of Concession/Facilities to Central Government employees working in Kashmir Valley in Attached/Subordinate Offices or PSUs. While being posted in the Kashmir Valley, the petitioner was covered by Office Memorandum dated 27-03-2009. The relevant portion of the Office Memorandum dated 27-03-2009 is reproduced herein below:- "Details of package of Concession/Facilities to Central Government employees working in Kashmir Valley in Attached/Subordinate Offices or PSUs. falling under the control of Central Government:- (A) Employees posted to Kashmir Valley: (i) These employees have an option to move their families to a selected place of their choice in India at Government expense. T.A for the families allowed as admissible in permanent transfer inclusive of transportation of personal effects, lump-sum payment for packing etc. (ii) Departmental arrangements 'for stay, security and transportation to place of work for employees (iii) HRA as for Class 'A' city applicable for employees exercising option at (i). Such employees will be eligible for drawing the normal HRA as well at their place of posting provided Departmental arrangement is not made for his/her stay. (iv) The period of temporary duty extended to six months. For period of temporary duty daily allowance at full rate is admissible, apart from departmental arrangements for stay, security and transportation." 7. In terms of the Office Memorandum dated 27-03-2009, the petitioner declared his SPR as Lucknow on 09-03-2011. This has been stated in para 3 of the affidavit-in-opposition filed by the respondents. Further, in the same affidavit, it is also stated that the petitioner was posted out from Srinagar on 02-04-2011. This would indicate that the petitioner had opted for the SPR as Lucknow prior to his transfer to Tawang. It is also not disputed that the declaration of the SPR was also allowed by the respondents. In that view of the matter, as the petitioner had already declared Lucknow as his SPR and has kept his family there, it shall be deemed that he has kept his family in his last place of posting i.e. Lucknow/SPR prior to his transfer to the North-Eastern Region. 8. The Office Memorandum dated 22-07-1998 which is the package for the civilian central employees on being transferred to the North-Eastern Region has also been considered by this Court. 8. The Office Memorandum dated 22-07-1998 which is the package for the civilian central employees on being transferred to the North-Eastern Region has also been considered by this Court. For a proper appreciation of the matter, the Office Memorandum dated 22-07-1998 is reproduced below:- "G.I., O.M. No. 11016/1/E.11 (B)/84, dated 29-3-1984 and O.M. No. 11/2/97 E.11 (B), dated 22-7-1998 Subject:-Allowances and facilities for civilian employees of the Central Government serving in the States and Union Territories of North-Eastern Region-Improvements thereof. The under signed is directed to refer to Para 5 of this Ministry's O.M. No. 20014/3/83-E IV, dated the 14th December, 1983 on the subject noted above, and to state that the question of payment of House Rent Allowance to Central Government civilian employees who are posted in the States of Assam, Meghalaya, Manipur, Nagaland and Tripura and the Union Territories of Arunachal Pradesh, Mizoram and Andaman and Nicobar Islands has been considered and the President is pleased to decide as follows:- (a) Central Government employees who were in occupation of hired private accommodation at the last station of posting before transfer to any of the State/Union Territories mentioned above may be allowed to draw House Rent Allowance admissible to them at that station. (b) Such Central Government civilian employees may also be allowed to draw, in addition to (a) above, House Rent Allowance at the rates admissible at the new place of posting in the aforesaid States/Union Territories in case they live in hired private accommodation (c) The benefits mentioned in (a) and (b) above will also be admissible to Central Government employees who get transferred from one station b of a State/Union Territory of the North-Eastern Region to another State/Union Territory of the North-Eastern Region mentioned above. Applicable to Lakshadweep and Sikkim also-The orders contained in the above OM will also mutatis muntadis apply to the Central Government employees posted in Lakshadweep and Sikkim (G.I., M.F., O.M NO.11 (2)/97-E.II (B), dated the 22nd July, 1998) Point Raised-whether benefit of HRA would be admissible under Para 1 (c) of the above-mentioned OM to those civilian Central Government employees in the North-Eastern Region, who have not been posted from outside N-E Region but have been transferred within North-Eastern Region and keep their families at the last duty station. Clarification-The benefit of HRA under Para, 1 (c) of this Ministry's OM, Dated 29th March, 1984, is admissible only to those Central Government civilian employees who are transferred from outside North-Eastern Region and who continue to keep their families outside N-E Region at the last duty station. These Central Government employees, on subsequent transfer to another State/Union Territory, within the North-Eastern Region would continue to be entitled to this benefit, provided their families continue to stay in the same place of outside the North-Eastern Region. Those employees who have not been posted to the North-Eastern Region from outside the North-Eastern Region will not be entitled to this benefit. 9. On a consideration of the Office Memorandum dated 22-07-1998, more particularly, the clarification given therein, it is seen that civilian employees who are transferred from outside North-Eastern Region and who continue to keep his families outside North-Eastern Region at the last duty station shall be entitled to HRA. In the present case in hand, the petitioner prior to his transfer from Kashmir Valley to Tawang had declared Lucknow as his SPR which was also permitted by the respondents and therefore, it shall be deemed that the petitioner had keep his family outside the North-Eastern Region in his declared SPR. This Court has also considered the communication dated 14-02-2011 written by the HQ 763 BRTF and addressed to the petitioner wherein, it has been clearly stated that the HQ 763 BRTF is lacking married accommodation and Schooling facility. It was for this reason that the petitioner had no option but to keep his family in his earlier declared SPR i.e. Lucknow. 10. There is no dispute at the bar that at HQ 763 BRTF, Tawang there is no family accommodation or schooling facility. Further, considering that while he was covered by Office Memorandum dated 27-03-2009, he had declared his SPR as Lucknow and further taking into consideration the Office Memorandum dated 22-07-1998, this Court is of the considered opinion that the petitioner has been deprived of HRA as provided under Office Memorandum dated 22-07-1998. In that view of the matter, it is declared that the petitioner shall be entitled to HRA for his full tenure at HQ 763 BRTF, Tawang, Arunachal Pradesh. 11. In that view of the matter, it is declared that the petitioner shall be entitled to HRA for his full tenure at HQ 763 BRTF, Tawang, Arunachal Pradesh. 11. The respondents are now directed to forthwith take steps to pay the arrear HRA to the petitioner during his posting period at HQ 763 BRTF, Tawang, Arunachal Pradesh with effect from 02-04-2011 to 13-01-2014 within a period of six months from today. 12. Writ petition is allowed. 13. No costs.