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2020 DIGILAW 889 (JHR)

Jai Prakash Dubey v. State of Jharkhand

2020-09-15

DEEPAK ROSHAN

body2020
JUDGMENT : DEEPAK ROSHAN, J. 1. Heard learned counsel for the parties through V.C. 2. The instant application has been preferred by the petitioner for following reliefs:- (i) To quash/set aside the decision as contained in memo no. 157 dated 29.01.2011 whereby and whereunder the House Rent Allowance of the petitioner has been stopped by District Superintendent of Education, East Singhbhum (respondent no. 3). (ii) To hold and declare that the petitioner is entitled for House Rent Allowance despite his wife (Smt. Alka Kumari) being in government service and posted as a Teacher in the same district but in different educational blocks and the distance in between the school of the petitioner and the school of his wife is about 50 kilometers. (iii) For a direction commanding upon the respondents to re-start the House Rent Allowance to the petitioner immediately which has been stopped from February, 2011 and pay the arrears from February, 2011 onward along with 12% interest thereon till the date of actual payment. (iv) For any other appropriate relief or reliefs to which the petitioner is found to be entitled in the facts and circumstances of this case as also to do conscionable justice to the petitioner. 3. The facts of the case lie in a narrow compass. The petitioner is an Assistant Teacher in Indurmati Primary School, Jamshedpur and his wife-Smt. Alka Kumari, is also posted as Assistant Teacher in Bhuridih Primary School, Jamshedpur. The petitioner and his wife were getting House Rent Allowance till January, 2011. However, suddenly a decision has been taken by the District Superintendent of Education, Singhbhum East, Jamshedpur under memo no. 157 dated 29.01.2011, whereby the House Rent Allowance of the petitioner was stopped. The Headmaster In-charge of Government Middle School, Karandih, Jamshedpur, Singhbhum East, who was the Drawing and Disbursing Officer of the petitioner was directed that till the guideline is received from the office of the Director, Primary Education, Human Resources Development Department, the House Rent Allowance of the petitioner which was being paid shall remain stayed. Immediately thereafter, the petitioner represented before the concerned respondent and pursuant to that the District Superintendent of Education, East Singhbhum, Jamshedpur vide its letter no. 813 dated 04.11.2011 requested the Director, Primary Education, respondent no. 2 to give guidelines with respect to the petitioner and his wife as to whether both are entitled for House Rent Allowance or not. Immediately thereafter, the petitioner represented before the concerned respondent and pursuant to that the District Superintendent of Education, East Singhbhum, Jamshedpur vide its letter no. 813 dated 04.11.2011 requested the Director, Primary Education, respondent no. 2 to give guidelines with respect to the petitioner and his wife as to whether both are entitled for House Rent Allowance or not. The petitioner again represented respondent no. 3 to restart House Rent Allowance; however no order was passed on his representation. 4. A counter affidavit has been filed in this case, wherein it has been stated inter-alia that since the petitioner and his wife-Smt. Alka Kumari is a government servant working as Assistant Teacher in same revenue block-Jamshedpur as such, they are not entitled in view of the Government Rules. At this stage it is pertinent to mention here that no such Government Rule has either been annexed or produced before this Court during course of hearing. 5. Learned counsel for the petitioner submits that the action of the respondent authority is arbitrary and without any basis of law. She further submits that when there is no rule to that effect, then there is no justification to hold the House Rent Allowance of either the spouse, if both spouses are entitled to avail House Rent Allowance. She further relied upon the judgments passed by the Hon’ble Patna High Court in the case of Abala Biswas @ Smt. Abala Bose vs. State of Bihar, 1995 (2) PLJR 34 . She further relied upon the judgment passed by this Court in the case of Nirupma Chaudhary vs. State of Jharkhand and Others, 2016 (4) JLJR 639 , wherein this Court has held in paragraphs 6 and 7 as under: “6. In the present case, admittedly, though both the petitioner and her husband are Government servants, they are not residing in any government quarter, rather they are residing together in their own flat. Admittedly, the petitioner had not claimed any HRA for the period, they were residing together in Government's quarter allotted to her husband. It is only after surrendering the Government's quarter and shifting in their own accommodation, the petitioner has claimed the HRA. Admittedly, the petitioner had not claimed any HRA for the period, they were residing together in Government's quarter allotted to her husband. It is only after surrendering the Government's quarter and shifting in their own accommodation, the petitioner has claimed the HRA. In the entire Rule placed by learned counsel for the State, there is no provision to show that, when both the spouses are Government servants and they are living together in their own house, and if one of the spouses is getting the House Rent Allowance, the other shall not be entitled to the same. Thus, in my considered view, the submission of the learned counsel for the State that the petitioner is not entitled to the HRA, has no legs to stand. 7. In view of the aforementioned discussions, the respondent authorities are directed to release the admissible HRA to the petitioner w.e.f. the month of February 2008, after the petitioner and her husband left the Government quarter and they are living together in their own flat. The respondents are directed to make the payment of the arrears of admissible HRA, together with the current admissible HRA to the petitioner, positively within the period of two months after communication/production of this Order.” Relying upon the aforesaid judgments learned counsel for the petitioner contended that in absence of any rule, the impugned order is fit to be quashed and set aside. 6. Learned counsel for the respondent-State reiterated its stands mentioned in the counter affidavit and further referred to Annexure-D to their counter affidavit that in one similar case the concerned department has taken a decision that when both husband and wife are posted in same revenue block and residing in one quarter then only one person will be entitled for the House Rent Allowance. 7. Having heard learned counsel for the parties and after looking to the documents and averments made in the counter affidavit, it appears that the main ground for issuing the impugned order is that the petitioner and his wife-Alka Kumari; who was also Assistant Teacher and both are government servants working as Assistant Teacher in same revenue block of Jamshedpur and therefore the claim of House Rent Allowance of the petitioner has been denied. Though it has been stated in paragraph no. Though it has been stated in paragraph no. 7 that as per the Government Rule if wife and husband are working as government servant in the same place/revenue block, only one of them is entitled for House Rent Allowance but unfortunately no such rule/regulation has been placed on record or produced before this Court during course of arguments. 8. The instant issue was decided way back in the case of Abala Biswas @ Smt. Abala Bose (supra) and subsequently by the judgment of this Court in the case of Nirupma Choudhary (supra). 9. At the cost of repetition, since there is no rule to deny the claim of House Rent Allowance to either of the spouse who are employees and working in the same block, the stand of the Government cannot be sustained in the eye of law. Even otherwise, any allowances or service benefits is attached to the post unless there is specific rule to the effect of denial. 10. In view of the aforesaid facts and discussion made hereinabove, the impugned order as contained in memo no. 157 dated 29.01.2011, whereby the House Rent Allowance of the petitioner has been stopped, is hereby quashed and set aside and the petitioner is entitled for the same. The respondent authority is directed to pay the arrear of House Rent Allowance within a period of three months from the date of receipt/production of a copy of this order/representation. It is made clear that if the arrear of House Rent Allowance will not be paid within the aforesaid stipulated period then the petitioner will be entitled for interest over and above the arrear of House Rent Allowance @ 7% from the date of stoppage of till the date of payment. 11. With the aforesaid directions, the instant writ application is hereby allowed and disposed of.