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2021 DIGILAW 6 (TRI)

Union of India v. Mr. Deepak Sharma

2021-01-11

AKIL KURESHI, S.G.CHATTOPADHYAY

body2021
JUDGMENT Akil Kureshi, CJ. - This appeal is filed by the Union of India to challenge the judgment of the learned Single Judge dated 13th December, 2016 in WP(C) No.667/2018. 2. Brief facts are as under : The respondent herein original petitioner was holding the post of Deputy Inspector General(DIG), Central Reserve Police Force(CRPF) at the relevant time. From his previous posting at Guwalior, he was sent to Tripura on promotion on 31st December, 2016. He did not carry his family members with him at Tripura and in terms of Government of India policy, sought double House Rent Allowance(HRA). The authorities rejected the request on the ground that on the previous place of posting also the family of the employee was not residing with him. He, thereupon, filed the said writ petition which was allowed by the learned Single Judge by the impugned judgment. The learned Judge referred to the Government of India policy allowing double HRA under certain circumstances when an employee is posted in north-eastern region. Though the case of the petitioner did not falls strictly within this policy, since the family of the employee was not residing with him at the place of previous posting, the learned Single Judge interpreted the policy liberally on the ground that it was a benevolent provision made by the Government of India and the benefit should not be denied on technical reasons. In the process, the learned Judge referred to and relied upon a decision of the Single Judge of the Delhi High Court in case of Sh. R. S. Misra Vs. Union of India (UOI) and Ors. dated 19th September, 2007. 3. We have heard learned counsel for the parties. Undisputed facts are that when the petitioner was moved to Greater Noida from Agartala in July 2013, he had shifted his family at a rented accommodation in Ghaziabad. However, subsequently, when he was transferred to Suratgarh in Rajasthan, his family did not accompany him. This, according to him, was on account of non-availability of proper accommodation and schooling. Be that as it may, in April 2015, he was transferred to Gwalior and stayed there till his transfer on promotion to Tripura in December, 2016. During this period of more than year and a half also the family of the petitioner was not residing with him at Gwalior. Be that as it may, in April 2015, he was transferred to Gwalior and stayed there till his transfer on promotion to Tripura in December, 2016. During this period of more than year and a half also the family of the petitioner was not residing with him at Gwalior. He has, however, cited the reason of non-availability of proper official accommodation where he could bring his family to stay with him. 4. Eventually, when the petitioner was once again transferred to Tripura, he applied for grant of double HRA for the period between 31st December, 2016 to 30th June, 2017. For such purpose, the petitioner relied on office memorandum dated 24th September, 2003 issued by Government of India. This office memorandum reads as under : "6. Benefit of Two HRAs Central Government employees posted to the specified States/Union Territories from outside the N-E. Region who are keeping their families in rented houses or in their own houses at the last place of posting outside the N-E. Region, will be entitled to HRA admissible to them at the old station, and also at the rates admissible at the new place of posting in case they live in hired private accommodation irrespective of whether they have claimed transfer T.A. for family or not subject to the condition that hired private accommodation or owned house at the last station of posting is put to bona fide use of the members of the family. These concessions are admissible also to those posted to Andaman and Nicobar Islands Lakshadweep and ladakh. The benefit of two HRAs is admissible also to those employees who on their transfer keep their families in the previous station in own/hired accommodation after vacating Government accommodation due to their transfer to N-E. Region, etc. - OMNo.2(38)/2001-E.II(B), dated24-9-2003. " 5. As per this office memorandum, a Central Government employee posted to north-eastern region from outside and who was keeping the family in rented house or in their own house at the last place of posting, would be granted double HRA. The last paragraph of this office memorandum clarifies that the benefit of two HRAs would be admissible even if the employee keeps their family in the previous station on the own or hired accommodation after vacating Government accommodation due to transfer to north-eastern region. The last paragraph of this office memorandum clarifies that the benefit of two HRAs would be admissible even if the employee keeps their family in the previous station on the own or hired accommodation after vacating Government accommodation due to transfer to north-eastern region. In plain terms thus, this office memorandum would apply in a case where a Central Government employee is transferred to north-eastern region from outside and who on account of hardships and long distance is unable to shift the family with him or her from the last place of posting from where the employees transferred to north-eastern region. Essential requirement for applicability of this office memorandum is that the family members of the employee must be residing with the employee at the previous place of transfer before being sent to north-eastern region. This benefit of double HRA would not be available in a case where even when the employee was not posted at north-eastern region, his family had not accompanied him at the station where he was discharging his duties. 6. In the present case, after the petitioner was moved out of Ghaziabad, the petitioner did not move his family along with him either at Suratgarh in Rajasthan or at Guwalior in Madhya Pradesh. For nearly 3 years before the petitioner was sent to north-eastern region, his family was residing separately at Ghaziabad. The fundamental requirement of the said office memorandum to enable the petitioner to draw double HRA, therefore, was not fulfilled. 7. The decision of Delhi High Court in case of Sh. R. S. Misra Vs. Union of India (UOI) and Ors. (supra) was rendered in very different factual background. It was a case in which the employee was posted at Rajkot when his service was terminated. He challenged the termination order before the High Court which was allowed. He was to be reinstated. The Letter Patents Appeal(LPA) was dismissed by the High Court. Pursuant to such judgment of the High Court, he was reinstated but transferred to Imphal. The petitioner was a resident of Gurgaon. When the question of payment of double HRA arose the department raised a contention that since the family of the employee was not residing at Rajkot at the time of transfer he cannot claim the double HRA. Pursuant to such judgment of the High Court, he was reinstated but transferred to Imphal. The petitioner was a resident of Gurgaon. When the question of payment of double HRA arose the department raised a contention that since the family of the employee was not residing at Rajkot at the time of transfer he cannot claim the double HRA. The Single Judge of the High Court observed that after the termination of the employee he had no reason to remain in Rajkot and therefore, to disallow the benefit of double HRA on the ground that his family did not stay at Rajkot during the period when he was at Imphal was wholly unjust. As noted above, these facts are different and peculiar. 8. In the result, impugned judgment of the learned Single Judge is reversed. Petition is dismissed. Pending application(s), if any, also stands disposed of.