Dismissed

Akhil Jharkhand Prathmik Shikshak Sangh through Its Organising Secretary Krishna Sharma and Anr. v. Finance

Jharkhand HC5 Nov 2018WPC/150/2014

Case brief

AI extract

What is this about?

Writ petition seeking quashing of Finance Department letter reducing House Rent Allowance for employees near municipal limits. Court held the differential rate applicable to unclassified places under statutory rules was not discriminatory or arbitrary and dismissed the petition.

What did the court decide?

Writ petition dismissed as devoid of merit.

Akhil Jharkhand Prathmik Shikshak Sangh… — Pension and Retirement Benefits | Jharkhand HC (2018)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (S) No. 150 of 2014

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Akhil Jharkhand Prathmik Shikshak Sangh through its Organising Secretary (Sangathan Maha Mantree) Krishna Sharma s/o Sri Janeshwar Sharma resident of Kishore Ganj, Road No.7, P.O-G.P.O, P.S-Sukhdeonagar, District-Ranchi.

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Krishna Sharma s/o Sri Janeshwar Sharma resident of Kishore Ganj, Road No.7, P.O-G.P.O, P.S-Sukhdeonagar, District-Ranchi.

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….. Petitioners

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Versus

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The State of Jharkhand,

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The Secretary, Department of Finance Govt. of Jharkhand, Ranchi, Project Building, H.E.C Campus, P.O. & P.S-Dhurwa, District-Ranchi.

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The Deputy Commissioner, Ranchi, near Civil Court, P.O.-G.P.O, P.S.Sadar, District-Ranchi.

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The Accountant General, Jharkhand, P.O. & P.S-Doranda, DistrictRanchi. ... Respondents

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CORAM : HON'BLE MR. JUSTICE PRAMATH PATNAIK

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For the Petitioners : Mr. Saurav Arun, Advocate For the Respondent-State : Mr. Jai Prakash, A.A.G & Mr. Yogesh Modi, A.C to A.A.G For the Respondent No.4 : Mr. S. Shrivastava, Advocate

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CAV on 02/05/2018 Pronounced on 05/11/2018

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Per Pramath Patnaik, J.

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In the captioned writ application, the petitioner no.2 in the individual as well as in representative capacity has sought for quashing the letter dated 02.02.2013 by which the respondents have issued direction upon Deputy Commissioner of Ranchi/Jamshedpur/Dhanbad that the

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employees whose offices situated within 8 K.M of the periphery of municipal limits of classified town, their rate of house rent allowance will be paid as fixed for unclassified place according to Claus-15(D) of memo dated 28.02.2009 issued by Finance Department, ignoring the resolution taken by the Finance Department vide memo dated 29.06.2010 that the rest of all terms & conditions of House Rent Allowance Rules, 1980 (including Rule 4(b)(ii) as provided in memo No.660 dated 28.02.1999) shall remain same. Further prayer has been made to direct upon the respondents not to adopt pick and choose method for payment of house rent allowance and to apply uniform policy of house rent allowance to members of the petitioner no.1 in general and petitioner no.2 in particular at the rate of 20% which is being paid to others.

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2. The petitioner no.1 is registered Sangh and petitioner no.2 is organizing Secretary (Sangathan Maha Mantree) of the Sangh working as Assistant Teacher who spouses in common clause on behalf of Sangh and on his own behalf. The erstwhile State of Bihar, Finance Department on 13.06.1980 framed rule namely, The Bihar State Employees (House Rent Allowance) Rules, 1980. It has been stated that the Government of Bihar has followed the similar provisions made by the Government of India so far as payment of house rent allowance of the employees are concerned. In pursuance to the aforesaid rule, the Finance Department, Government of Bihar vide letter dated 04.08.1984 decided to give house rent allowance who were working within 8 KM from the municipal limits of the classified city. Dispute arose with regard to applicability of the rate of house rent allowance which was raised by filing of the W.P.C No.819 of 2003 and which was disposed of vide order dated 07.01.2009 with a direction to the respondents to take a decision. On the basis of the said order of the Hon’ble Court, the Deputy Commissioner, Ranchi vide letter dated 03.08.2009, vide Annexure-4 to the writ application issued direction for payment of house rent allowance at the rate of 20% to all employees of the Block office as well as Circle Office of Ratu. The Finance Department vide resolution dated 28.02.2009 revised the pay

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scale of Government employee and Clause 15(d) of the said resolution speaks about the house rent allowance that on the basis of classification of cities/towns as applicable in the Government of India will be payable. Finance Department also passed a resolution dated 29.06.2010 wherein the Government decided to make partial modification in Clause 15(d) of the said resolution of Finance Department dated 28.02.2009 to the effect that in place of municipal area substituted by ‘Y’ as classified town according to list of Ranchi, Dhanbad and Jamshedpur the same will be paid to the classification of town with effect from 01.09.2008 and clarified that rest all terms & conditions of the House Rent Allowance Rules, 1980 (including Rule 4(b)(ii) as well as the terms and conditions provided in memo dated 28.02.1999 will remain same/unchanged. The Deputy Commissioner, Ranchi vide letter dated 25.10.2012 sought for clarification from the Finance Department and the Finance Department vide letter dated 02.02.2013 clarified that note-2 of Rule 4(b)(ii) of the Bihar State Employees (House Rent Allowance) Rules, 1980 is not applicable to those offices whose house rent allowance are admissible under any other rules. It has further been observed that when the rule came into force at that time house rent allowance was payable to the city of category A, B-1, B-2 & C and it was not admissible to those employees working beyond the said category and that is why note-2 of Rule 4(b)(ii) was not given effect to for those employees who were working in the offices situated within 8 Km from municipal area but in the year, 1986 situation changed when the Finance Department vide memo dated 24.12.1986 amended the said rule and enhanced the house rent allowance as fixed for unclassified places and further referred the resolution dated 08.09.1987 in which it was said that unclassified place is not only mean town/city, it means rural area also. It has further been observed that in view of above two notifications, rate of house rent allowance for the employees working in the offices situated within 8 Km is automatically fixed and lastly, observed that those employees in such offices which are situated within periphery of 8 Km, the house rent allowance at the rate of unclassified city is

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applicable as fixed in Clause 15(d) of the memo dated 28.02.2009 issued by the Finance Department as evident from Annexure-10 to the writ application. Being aggrieved by the said letter dated 02.02.2013, the petitioners represented vide Annexure-11 series to the writ application. It has further been submitted that the employees of the State of Bihar are getting house rent allowance in terms of Rule 4(b)(ii) at the same rate as applicable to classified city. In case of State of Jharkhand, the employees are entitled to the rate as applicable to unclassified city which is discriminatory in nature. It has further been averred that Bihar State Employees (House Rent Allowance) Rules, 1980 which has been made by the Government in exercise of powers conferred under Article 309 of the Constitution of India and the said provision cannot be changed by any executive order/letter as has been done by letter dated 02.02.2013 which is liable to be quashed. It has further been submitted that the respondent authority without giving opportunity of show cause vide letter dated 02.02.2013 stopped the payment of house rent allowance at the rate of 20% and the Government has acted in a very arbitrary manner in not extending the benefit of house rent allowance and transport allowance as the rate applicable for employees working in classified area with those of the employees working in the offices situated within 8 Km from the municipal area. Being aggrieved by the impugned letter dated 02.02.2013, the Akhil Jharkhand Parathmik Shikshak Sangh in its meeting dated 15.12.2013 took a decision for challenging the aforesaid order by filing the present writ application under Article 226 of the Constitution of India.

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3. Learned counsel for the petitioner has canvassed his arguments by submitting that the executive order/letter dated 02.02.2013 appears to have overriding effect for the Bihar State Employees (House Rent Allowance) Rules, 1980 which has been promulgated under Article 309 of the Constitution of India and the Rule-4(b)(ii) interalia provides for grant of House Rent Allowance to the Government servants whose place of duties is in the proximity of a qualified city. Learned counsel for the petitioner further submits that interpretation

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given in letter dated 02.02.2013 is not legally tenable since the Central Government is paying House Rent Allowance at the same rate which is applicable for employee working in the classified city and the employees who are working within 8 KM from the municipal area. Learned counsel for the petitioner further submits that the respondents seems to have misconstrued the Clause-15(d) of resolution dated 28.02.2009 vide Annexure-6 to the writ application and Clause-15(d) of resolution clearly speaks that House Rent Allowance would be applicable to the State Government Employees. Learned counsel for the petitioner further submits that the action of the respondent by issuing letter dated 02.02.2013 smacks of illegality and malafide exercise of power without affording any opportunity of show-cause. Learned counsel for the petitioner to strengthen his argument has referred to the decision (2001) 5 SCC 482 (Dr. Rajinder Singh Vs. State of Punjab And Others) at paragraph- 7 , (2003) 8 SCC 204 (Punit Rai Vs. Dinesh Chaudhary) at paragraph- 45 , (2003) 4 SCC 289 (Federation of Railway Officers Association And Others Vs. Union of India) at paragraph- 12 .

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4. A counter-affidavit has been filed by the respondent no.2 repelling the contentions raised in the writ application. In the counter-affidavit, it has been submitted that in terms of objection of the Accountant General, Jharkhand, Ranchi, the Department of Finance issued the impugned letter making it clear that the employees whose offices are situated in the periphery 8 KM of classified cities shall be paid House Rent Allowance as per Clause-15(d) of Finance Department Resolution dated 28.02.2009 fixed for class ‘C’ and unclassified place. The basic reason behind the issuance of letter dated 02.02.2013 issued by the Department of Finance is that as per Rule-4(b)(ii) of the Bihar State Employee (House Rent Allowance) Rules, 1980, Government Servant having place of duty within 8 KM of the periphery of municipal limits of qualified city was also granted House Rent Allowance admissible for that city if they had to reside in the qualified city for want of accommodation near the place of their duty. Note-2 of appended Rule-4(b)(ii) clarifies that Rule-4(b)(ii) will not apply to

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establish entitlement to House Rent Allowance under any other provision of the rule or other general or special order. It has further been submitted that in the year 1980 when the said rule came into force, House Rent Allowance was not admissible for other places except A, B-1, B-2 and C Class towns. Later on situation changed in the year 1986, when House Rent Allowance was made admissible for unclassified places also. So according to Note-2, the employees having place of their duty within periphery of 8 KM of classified city are not entitled for House Rent Allowances at the rate fixed for that city, rather they are entitled for HRA at the rate admissible for unclassified place. Therefore, the impugned letter of the Finance Department cannot be discriminated between association and other employees of the State Government.

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5. Learned Additional Advocate General on behalf of State apart from reiterating the submissions made in the counter-affidavit, has assiduously submitted that on perusal of the impugned letter dated 02.02.2013, it would be evident that the Rule-4(b)(ii) of the Bihar State Employees (House Rent Allowance) Rules, 1980 read with Note-2 interalia makes a provision for issuance of any general or special order and accordingly, by notifications dated 24.12.1986 and 08.09.1987, provision has been made in the Jharkhand Gazette (Extraordinary) dated 28.02.2009 for revised classification of House Rent Allowance of Cities/town as applicable to Government of India in tabular form. Therefore, whatever House Rent Allowance is admissible as per the classification of cities and towns would be made applicable to the petitioners. Learned counsel for the State submits that on conjoint reading of Rule-4(b)(ii) read with Government Notification dated 24.12.1986 and the Jharkhand Gazette Notification dated 28.02.2009, it would appear that no House Rent Allowances are applicable to all employees at the rate fixed therein irrespective of cities and towns.

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6. Having heard learned counsel for the respective parties and perusal of the records, this Court is not inclined to accept the prayer of the petitioner due to following facts and reasons:

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(I) For better appreciation, it would be relevant to refer to Rule4(b)(ii) the Bihar State Employees (House Rent Allowance) Rules, 1980 and Rule-4(b)(ii) by providing Note-2 which is quoted hereinbelow:

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“Note 2.-Rule 4(b)(ii) will not apply to establishments entitled to house rent allowance, project allowance, remote locality allowance, hill allowance or other such allowances under any other provision of this rule or other general or special orders.”

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(II) The Finance Department of erstwhile State of Bihar vide notification dated 24.12.1986 has interalia enhanced the House Rent Allowances and the said notification was necessitated because 1980 Rule was not admissible for other places except ‘A’, ‘B-1’, ‘B-2’ and ‘C’ due to change in situation. House Rent Allowance was also made applicable to unclassified places. Therefore, those employees who were not entitled to House Rent Allowance at the rate fixed for the city become eligible to be entitled for HRA at the rate admissible for unclassified place. The said notification has been issued in pursuance to the Rule-1980.

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(III) The resolution of the Finance Department dated 28.02.2009 which pertains to revision of scale will be payable to the State Government

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Employees and Clause-15(d) deals with allowances provides as under:

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Revised classification of cities And towns on population criteria	Revised of ci revised of	classification ties/ towns classification	Rates of HRA as percentage of pay in the pay Band + Gradepay
50 lakhs & above	(earlier A-1)	X classified as	30%
50-5 Lakhs	(Earlier A,B-1	Y classified as &B-2)	20%
Below 5 lakhs	(earlier C and u	classified as nclassified)	10%

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(IV) So far as challenge of the petitioner to the impugned letter dated 02.02.2013 vide Annexure-10 to the writ application is concerned, the same has taken note of the rule of Bihar State Employees (House Rent Allowance) Rules, 1980 as well as Government Notification dated 24.12.1986 and 08.09.1987 as well as Finance Department resolution

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dated 28.02.2009 more particularly, Clause-15 (d). Therefore, on conjoint reading of the aforesaid provisions and taking holistic view, this Court is of the considered view that the impugned order dated 02.02.2013 does not suffer vires of discrimination nor the same smacks of arbitrariness. (V) So far as the decision cited by the learned counsel for the petitioners is concerned, there is absolutely no quarrel over the propositions and ratio enunciated therein and I am in respectful agreement with the ratio decided therein but in the facts and circumstances of case, those decisions cited by the counsel for the petitioners are absolutely not applicable.

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In view of the reasons stated in the forgoing paragraphs and as logical sequitur to the aforesaid reasons, this Court is not inclined to accede to the prayer of the petitioners. Accordingly, the writ petition is dismissed being devoid of any merit.

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RKM N.A.F.R

Akhil Jharkhand Prathmik Shikshak Sangh through Its Organising Secretary Krishna Sharma and Anr. v. Finance

Case brief

What is this about?

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Akhil Jharkhand Prathmik Shikshak Sangh through Its Organising Secretary Krishna Sharma and Anr. v. Finance

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