Jabahar Mishra Vs State of Odisha

IN THE HIGH COURT OF ORISSA AT CUTTACK WP(C) No.911 of 2021

Dr. Sandip Kumar Raut ..... Petitioner Ms. S. Devi, Advocate on behalf of Mr. S.K. Dash, Advocate -versus- 1) State Of Odisha ..... Opposite Parties 2) State Of Odisha Mr. S.K. Samal, AGA 3) Utkal University Of Culture Mr. S.K. Pattnaik, Sr. Advocate along with Mr. P.K. Pattnaik, Advocate (Opp. Party No. 3) WP(C) No.913 of 2021 Dr. C.V.L. Srinivas ..... Petitioner -versus- 1) State Of Odisha ..... Opposite Parties 2) State Of Odisha 3) Utkal University Of Culture WP(C) No.914 of 2021 Jabahar Mishra ..... Petitioner -versus- 1) State Of Odisha ..... Opposite Parties 2) State Of Odisha 3) Utkal University Of Culture WP(C) No.915 of 2021 Dr. Jagannath Kuanr ..... Petitioner -versus- 1) State Of Odisha ..... Opposite Parties 2) State Of Odisha 3) Utkal University Of Culture WP(C) No.916 of 2021 Dr. Chakradhar Behera ..... Petitioner

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-versus- 1) State Of Odisha ..... Opposite Parties 2) State Of Odisha 3) Utkal University Of Culture WP(C) No.917 of 2021 Dr. Somburu Sovara ..... Petitioner -versus- 1) State Of Odisha ..... Opposite Parties 2) State Of Odisha 3) Utkal University Of Culture WP(C) No.918 of 2021 Prabir Kumar Dalai ..... Petitioner -versus- 1) State Of Odisha ..... Opposite Parties 2) State Of Odisha 3) Utkal University Of Culture WP(C) No.919 of 2021 Manoranjan Pradhan ..... Petitioner -versus- 1) State Of Odisha ..... Opposite Parties 2) State Of Odisha 3) Utkal University Of Culture WP(C) No.922 of 2021 Dr. Itishree Sahoo ..... Petitioner -versus- 1) State Of Odisha ..... Opposite Parties 2) State Of Odisha 3) Utkal University Of Culture

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CORAM:

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THE HON'BLE MR. JUSTICE BIRAJA PRASANNA SATAPATHY

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ORDER

09.04.2024

Order No. 05

This matter is taken up through hybrid mode.

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Heard Ms. S. Devi, learned counsel for the Petitioner appearing on behalf of Mr. S.K. Dash, Mr. S.K. Samal, learned Addl. Govt. Advocate appearing for the State and Mr. S.K. Pattnaik, learned Sr. Counsel appearing for the Opp. Party No. 3 along with Mr. P.K. Pattnaik.

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The present batch of writ petitions have been filed inter alia challenging the communication issued by the Govt.-Opp. Party No. 1 on 05.11.2020 under Annexure-1 and consequential order passed by the University on 04.12.2020 under Annexure-2. Basing on the communication issued under Annexure-1, the House Rent Allowance so received by the Petitioners @ 20% of the Basic Pay & Grade Pay was reduced to 50% of the Basic Pay and Grade Pay w.e.f.09.11.2016 vide order dt.04.12.2020 under Annexure-2.

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Learned counsel appearing for the Petitioners contended that since Utkal University of Culture was functioning at Bhubaneswar, Petitioners were allowed House Rent Allowance @ 20% of Basic Pay and Grade Pay. Even though Utkal University of Culture shifted its office to Madanpur, which comes under Jatni Block, but the University as on date is functioning at Bhubaneswar. Since the University is functioning at Bhubaneswar as on date, Petitioners are eligible to continue with the House Rent Allowance @ 20%. It is contended that without proper appreciation of the fact that the University is still functioning at Bhubaneswar, Govt.-Opp. Party No.

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Page 3 of 9.

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1 issued the impugned letter on 05.11.2020 directing Opp. Party No. 2 to extend House Rent Allowance @ 5% of Basic Pay and Grade Pay in place of 20%, which they were in receipt of. Opp. Party No. 3 without proper appreciation simply carried out the direction with issuance of the order at Annexure-2.

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4.1. It is also contended that this Court while issuing notice of the matter vide order dtd.15.01.2021 passed an interim order that no recovery pursuant to Annexure-1 be made from the Petitioners subject to the Petitioners filing undertaking by way of an affidavit that in the event they lose, they shall deposit the entire amount along with interest @ 6% per annum within a period of ten (10) days from the date of order to be passed by this Court. However, it is vehemently contended that since as on date the University is functioning at Bhubaneswar, reduction of the HRA to 5% is not sustainable in the eye of law.

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Mr. S.K. Pattnaik, learned Sr. Counsel appearing for the University-Opp. Party No. 3 along with Mr. P.K. Pattnaik on the other hand made his submission basing on the stand taken in the counter affidavit so filed by Opp. Party No. 3. Basing on the stand taken in the counter affidavit, learned Sr. Counsel contended that in terms of the office memorandum issued by the Finance Department on 26.12.2008 under Annexure-A to the counter, House Rent Allowance @ 20% is admissible in respect of employees working in BBSR & Cuttack (Urban Area). It is 10% in respect of other places, which have been declared as Urban Area and 5% in respect of all other places.

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Page 4 of 9.

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5.1. It is contended that in terms of the notice issued by the University on 07.11.2016, the Administrative Block of the University was shifted to its permanent campus at Madanpur, which comes under Jatni Block and which is not an Urban Area. Accordingly, basing on the direction issued by Opp. Party No. 1 vide communication dtd.05.11.2020 under Annexure-1, wherein Govt.-Opp. Party No. 1 held the Petitioners eligible to get the benefit of House Rent Allowance @ 5% of the Basic Pay and Grade Pay, consequential order was passed on 04.12.2020 under Annexure-2 in each of the cases by holding the Petitioners eligible to get House Rent Allowance @ 5% w.e.f.09.11.2016 i.e. from the date of shifting of the University to its permanent campus at Madanpur. While issuing such an order, since it was indicated that Petitioners will be eligible to get HRA @ 5% of the Basic Pay and Grade Pay w.e.f.09.11.2016, it was apprehended that recovery of the excess amount drawn @ 20% will be recovered till passing of the order on 04.12.2020 w.e.f.09.11.2016.

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5.2. It is also contended that this Court while issuing notice of the matter vide order dtd.15.01.2021 though passed an interim order by holding that no recovery can be made, but with the condition that an undertaking by way of an affidavit is to be filed to the effect that in case Petitioners lose the case, they shall deposit the entire amount along with interest @ 6% per annum within a period of 10 days from the date of receipt of the order, but no such affidavit was ever filed. It is contended that in terms of the said order, an undertaking though was filed before Opp. Party No. 3-University, but it is not in terms of the order dtd.15.01.2021.

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Page 5 of 9.

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5.3. Mr. Pattnaik, learned Sr. Counsel accordingly contended that since the Administrative Block of the University has since been shifted to Madanpur, which is not coming within an Urban Area, pursuant to the letter issued by the Govt.-Opp. Party No. 1 on 05.11.2020 under Annexure-1, Petitioners were held eligible to get the benefit of House Rent Allowance @ 5% w.e.f.09.11.2016. It is accordingly contended that Annexure-2 since was issued basing on the direction issued by the Govt.-Opp. Party No. 1 under Annexure1, no illegality can be found with the University for taking such action with issuance of the order at Annexure-2.

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Mr. S.K. Samal, learned Addl. Govt. Advocate on the other hand made his submission basing on the materials available on record. Even though no counter affidavit has been filed by the State, placing reliance on the stand taken in the counter affidavit filed by the University, it is contended that since entitlement of an employee to get the benefit of House Rent Allowance comes within the guideline issued by the Finance Department in its Office Memorandum dtd.26.12.2008 under Annexure-A to the counter filed by Opp. Party No. 3, Petitioners because of shifting of the University to Madanpur, which is not an Urban Area, became entitled to get House Rent Allowance @ 5% of the Basic Pay and Grade Pay. Since the University continued with payment of House Rent Allowance @ 20%, even after shifting of the University in terms of Annexure-B notice dt.07.11.2016, the communication under Annexure-1 was issued on 05.11.2020 while considering the request made by the University vide letter dtd.13.07.2020 under Annexure-F to the counter.

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Page 6 of 9.

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6.1. Mr. Samal, learned AGA contended that since the University is functioning at Madanpur since 09.11.2016 pursuant to the notice issued by the University on 07.11.2016 under Annexure-B to the counter, Petitioners are not eligible to get the benefit of House Rent Allowance @ 20%. It is accordingly contended that no illegality has been committed by the Govt.-Opp. Party No. 1 while issuing Annexure-1.

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To the submission made by the learned Sr. Counsel appearing for the University and the submission made by the learned State Counsel, Ms. Devi, learned counsel for the Petitioners made further submission basing on the stand taken in the rejoinder affidavit. It is contended that even though the University has been shifted to Madanpur, but Petitioners are taking their classes at Bhubaneswar more particularly, in Unit-II, Bhubaneswar. It is contended that since the Petitioners are discharging their duty at Bhubaneswar, in view of Annexure-A, they are eligible to get the benefit of House Rent Allowance @ 20%.

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Having heard learned counsel for the Parties and after going through the materials available on record, this Court finds that Utkal University of Culture shifted its Administrative Block and started functioning at Madanpur in terms of the notice issued on 07.11.2016 under Annexure-B. After such shifting of the University of its Permanent Campus to Madanpur, a letter was issued by the University on 13.07.2020 to the Govt.-Opp. Party No. 1 with regard to entitlement of the Petitioners to draw their House Rent Allowance @ 20% of the Basic Pay & Grade Pay. On receipt of the request made by the University vide letter dtd.13.07.2020 under Annexure-

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Page 7 of 9.

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E and basing on the memorandum issued by the Finance Department on 26.12.2008 under Annexure-A, Govt.-Opp. Party No. 1 issued the communication on 05.11.2020 under Annexure-1 by holding that since the University is located at Madanpur, which is a Panchayat Area under Jatni Block, Petitioners are eligible to get House Rent Allowance @ 5% of Basic Pay and Grade Pay and not @ 20%, which they were earlier getting because of the functioning of the University at Bhubaneswar, which comes within Urban Area in terms of the office memorandum issued by the Finance Department on 26.12.2008.

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8.1. Since in terms of the notice issued under Annexure-B to the counter affidavit, the University is functioning at Madanpur, which is not an Urban Area, placing reliance on the guide line issued by the Finance Department in its office memorandum dtd.26.12.2008 under Annexure-A, this Court is of the view that the Petitioners are eligible to get House Rent Allowance @ 5% of the Basic Pay and Grade Pay. Accordingly, this Court finds no illegality or irregularity with the direction issued by Opp. Party No. 1 in its communication dtd.05.11.2020 under Annexure-1 and consequential order issued by the University on 04.12.2020 under Annexure-2. Accordingly, this Court is not inclined to interfere with either the communication issued by the Govt.-Opp. Party No. 1 on 05.11.2020 under Annexure-1 or the office order dtd.04.12.2020 issued by the University under Annexure-2.

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8.2. The stand taken by the Petitioner that the University is still functioning at Bhubaneswar is not acceptable, in view of the notice issued by the University on 07.11.2016 under Annexure-B as well as

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Page 8 of 9.

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the stand taken by the University in the counter affidavit. No document is also forthcoming at the instance of the Petitiones that in spite of the shifting, the University is functioning at Bhubaneswar. In view of the same, this Court is not inclined to interfere with the communication issued by Opp. Party No. 1 on 05.11.2020 under Annexure-1 and consequential order issued by Opp. Party No. 2 on 04.12.2020 under Annexure-2 and accordingly dismiss all the writ petitions. The University is free to take action in terms of the interim order passed on 15.01.2021.

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All the writ petitions are disposed of accordingly.

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Photo copy of the order be placed in the connected case records.

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( BIRAJA PRASANNA SATAPATHY) Judge

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Sneha

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Signature Not Verified

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Digitally Signed Signed by: SNEHANJALI PARIDA Designation: Sr. Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 11-Apr-2024 13:28:41

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Page 9 of 9.

Jabahar Mishra v. State of Odisha

Case brief

What is this about?

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Jabahar Mishra v. State of Odisha

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Procedural history

Parties & counsel

Coram

Case details

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