Allowed

Rameshwar Namdeo Dahate v. the State of Maharashtra and Ors.

Bombay HC29 Aug 2018WP/523/2008

Case brief

AI extract

What is this about?

Petitioner challenged recovery of Rs. 29,767 as rent and HRA by Tribunal. Court held petitioner, as Commandant of State Reserve Police Force, entitled to rent-free quarter under Clause 259 of Bombay Police Manual. Refund ordered with deduction for one month post-retention.

What did the court decide?

Impugned order quashed; respondents directed to refund Rs.29,767 with deduction for one month's rent.

Rameshwar Namdeo Dahate Vs the State of… — Pension and Retirement Benefits | Bombay HC (2018)

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204-wp-523-2008

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(1)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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204 WRIT PETITION NO. 523 OF 2008

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Rameshwar S/o. Namdeo Dahate,
Age : 64 Years, Occu. Retired,
Resident of Survey No.139/4,
Shirsoli, Pra-Bornar, Pachora Road,
Taluka & District Jalgaon. ..PETITIONER

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VERSUS

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1. The State of Maharashtra Though Secretary Home Department, Mantralaya, Mumbai;

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2. Director General of Police, State Police Head Quarters, Shahid Bhagatsingh Road, Mumbai-400039;

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3. Special Inspector General of Police, State Reserve Police Force, State Police Head Quarters, Shahid Bhagatsingh Road, Mumbai-400039;

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4. Divisional Commissioner, Nagpur Division, Nagpur;

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5. Executive Engineer, Public Works Department, Division No.1, Civil Lines, Nagpur. ..RESPONDENTS

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Mr. K. C. Sant, Advocate for the Petitioner.
Mr. V. S. Badakh, AGP for Respondent-State.

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CORAM : S. V. GANGAPURWALA &

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 S. M. GAVHANE, JJ.

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 DATED : 29th AUGUST, 2018.

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(2)

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204-wp-523-2008

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ORAL JUDGMENT (Per S. V. Gangapurwala, J.):-

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1.Mr. Sant, learned counsel for the
petitioner submits that the only dispute between
the parties is with regard to the claim of
respondents for an amount of Rs.29,767/- recovered
by the respondents from the petitioner on the
ground of house rent allowance.

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2.Mr. Sant, learned counsel further submits
that the petitioner was working as a Deputy
Commissioner of Police, Nagpur City from 18.02.1998
and he was alloted the P.W.D. quarter bearing
no.54/4 situated in Civil Lines Area, Nagpur.
Thereafter on 09.10.2001 he was given posting as a
Commandant in the State Reserve Police Force,
Maharashtra State, Nagpur and was allowed to retain
the same quarter and thereafter he retired on
30.04.2004. The learned counsel submits that as
per Clause 259 of Bombay Police Manual, 1959, the
Commandant of the State Reserve Police Force is
entitled for rent free accommodation. In fact, if
the respondents claimed that the petitioner was not
allotted quarter, then petitioner is entitled for
house rent allowance from the respondents for the
period 09.10.2001 to 30.04.2004. The same is not
paid to the petitioner. On the contrary the
recovery is claimed from the petitioner for the
said period the petitioner was occupying the said
quarter, the same is erroneous. It is deducted
from the retiral benefits of the petitioner.

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(3)

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204-wp-523-2008

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3.Mr. Badakh, learned A.G.P. submits that
the petitioner never made a claim for allotment of
quarter. He was residing in the P.W.D. quarter and
not the quarter of the respondents. The petitioner
as such was liable to pay the license fee / rent
for occupying the said P.W.D. quarter. The
Government dues can be recovered from the retiral
benefits as per Rules 132 and 133 of the
Maharashtra Civil Services (Pension) Rules 1982.
The petitioner at no material point of time had
made the claim for house rent allowance. Clause
259 of the Bombay Police Manual is in the nature of
executive instruction and not a Rule. The Tribunal
has rightly considered the aspects and rejected the
claim of the petitioner.

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4.We have considered the submissions
canvassed by the learned counsel for the respective
parties.

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5.Clause 259 of the Bombay Police Manual
reads thus:

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“Normal Housing Arrangements – (1) The
Commissioner of Police, Bombay, Deputy
Commissioners of Police, Greater Bombay,
Deputy Inspector General of Police, C.I.D.,
Superintendent of Police, S.B., C.I.D.,
Bombay, Deputy Superintendents of Police,
C.I.D., Bombay, Principals, Police Training
Schools, Nasik and Junagadh, Principal,
RegionalTrainingSchool,Baroda;
Superintendent, Constables Training School,

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(4) 204-wp-523-2008

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Nagpur; the two Deputy Superintendents of
Police on the instructional staff of the
Police Training School, Nasik; the
probationary Assistant Superintendents of
Police and Deputy Superintendents of Police
under training, the Commandants, Assistant
Commandants and Adjutants of the State
Reserve Police Force Groups and the
Superintendents of Police in Greater Bombay
are entitled to rent-free accommodation.”

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6.Reading the said Clause, it is manifest
that the petitioner being a Commandant of the State
Reserve Police Force is entitled to rent free
accommodation. At the time when the petitioner was
working as Deputy Commissioner of Police of Nagpur
City, he was occupying the quarter bearing no.54/4
at Civil Lines Area, Nagpur. On 09.10.2001 he was
given posting as a Commandant in the State Reserve
Police Force, Maharashtra State, Nagpur and was
allowed to retain the same quarter till he retired
on 30.04.2004.

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7.The Tribunal has gone on the premise that
Clause 259 of the Bombay Police Manual is merely an
executive instruction and not the Rule.

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8.Even, if we assume that Clause 259 of
Bombay Police Manual is in nature of executive
instruction, still no Rule is pointed out to
suggest that the petitioner is not entitled for
rent free accommodation nor it is pointed out that
the said executive instruction is contrary to any
Rule, Regulation or statute. In absence thereof,

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(5) 204-wp-523-2008

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the executive instruction would be binding upon the
parties. The executive instruction was issued so
as to evolve uniform instruction.

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9.No contrary Rules are pointed out. In
absence thereof, the executive instruction would be
guiding factor. The compilation of the order and
the Rules contained in the Bombay Police Manual are
unless otherwise specifically stated under any
rules framed or orders issued by the Government
applicable to all areas. In view of that the same
would be binding.

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10.As observed supra the petitioner is
entitled for rent free accommodation and he was
allotted the quarter bearing no.54/4. In view of
that, the respondents would not be entitled to
recover the rent from the petitioner for the period
09.10.2001 to 30.04.2004.

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11.It appears that, the petitioner had
retained the quarter for a period of two months
after his retirement. It has been observed by the
Tribunal that Government Servant is entitled to
retain the quarter for a period of one month after
his retirement. As the petitioner had retained the
quarter for the period of two months, the
petitioner will be liable to pay rent for the
period of one month.

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(6) 204-wp-523-2008

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12.In light of the above, the impugned order
passed by the Tribunal is quashed and set aside.
The respondents shall refund the amount of
Rs.29,767/- recovered from the petitioner for his
occupation for the period 09.10.2001 to 30.04.2004
after deducting the amount towards house rent
allowance for one month which the petitioner had
retained even after one month of his retirement.

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13.In view of the above, Rule is accordingly
made absolute in above terms. No costs.

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(S. M. GAVHANE) (S. V. GANGAPURWALA) JUDGE JUDGE

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Devendra/August-18

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Devendra Nandkumar Kale

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Digitally signed by Devendra Nandkumar Kale Date: 2018.09.03 13:22:18 +0530

Rameshwar Namdeo Dahate v. the State of Maharashtra and Ors.

Case brief

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Rameshwar Namdeo Dahate v. the State of Maharashtra and Ors.

Case brief

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What the court decided

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