THE HON'BLE SRI JUSTICE D.S.R.VARMA AND THE HON'BLE SRI JUSTICE K.C.BHANU

Writ Petition No.25314 of 2007

Date: 21-01-2008

Between

1. Union of India, rep. by the Director General/CISF, Ministry of Home Affairs, 13 CGO Complex, Lodhi Road, New Delhi and another

… Petitioners

and

1. Dr. C.Nagaratnamma W/o. Late Dr. P.Ranga Reddy, Aged about 59 years, Chief Medical Officer (NFSG)(Retd), Central Government Health Scheme, CGHS Dispensary No.XI, Kakatiya Nagar, R/o.12-2-709, B/19 Karol Bagh, Padmanabha Nagar, Mehdipatnam, Hyderabad-500 028

2. The Additional Director, CGHS Hyderabad, K.S. Bhavan, Begumpet, Hyderabad

… Respondents

THE HON'BLE SRI JUSTICE D.S.R.VARMA AND THE HON'BLE SRI JUSTICE K.C.BHANU

Writ Petition No.25314 of 2007

Oral Order: (per the Hon'ble Sri Justice K.C.Bhanu)

Heard Sri A.Rajashekar Reddy, learned Assistant Solicitor General of India appearing for petitioners; Sri A.Tata Rao, learned Counsel appearing for respondent No.1 and Sri Penjuri Venu Gopal, learned Additional Standing Counsel for Central Government appearing for respondent No.2.

2. This writ petition is directed against the order, dated 02-8-2007, in O.A.No.64 of 2007, passed by the Central Administrative Tribunal, Hyderabad Bench, Hyderabad (for short, 'the Tribunal'), wherein and whereby the impugned orders passed by the petitioners herein were quashed in respect of allowing House Rent Allowance (for short, 'HRA') for the period from 12-9- 2003 to 02-12-2004, whereas the application was dismissed in respect of the claim of HRA from 03-12-2004 to 31-7-2005.

3. Respondent No.1 herein (applicant) filed an application before the Tribunal claiming HRA as per Last Pay Certificate issued to that effect. Basing on the audit objection, petitioner No.2 herein ordered for recovery of an amount of Rs.50,792/- paid to the applicant towards HRA for the period from 09/2003 to 09/2004, by order dated 24-12-2004. Prior to that, the applicant made a representation requesting for permission to stay in her own house with relevant HRA, but that application was rejected on 03- 12-2004 on the ground that family quarter was lying vacant and therefore, she was not entitled to claim HRA. On 11-02-2005, the applicant made another representation for permission to draw HRA, but the same was also rejected on 22-02-2005. Therefore, she filed the application before the Tribunal for a direction to the respondents therein to refund the HRA, which was recovered from her from 12-9-2003 to September, 2004.

4. The respondents in the O.A., filed a counter before the Tribunal stating that the applicant was informed on 03-12-2004 that as per Rules, she was not entitled for HRA as a family quarter was lying vacant in National Industrial Security Academy (for short, 'NISA'), Central Industrial Security Force (for short, 'CISF') for earmarked allotment. Therefore, it was contended that she was not entitled for HRA in view of the fact that the family accommodation was available in the Academy and she was not even applied for outliving permission.

5. Having considered the contentions of both the parties, the Tribunal passed the impugned order stating that there is no need to apply for government accommodation and for the first time, the petitioners herein have informed the applicant vide order, dated

03-12-2004 to the effect that the family quarter was available for allotment and till then she is entitled for HRA. Accordingly, the application filed by the applicant was partly allowed.

6. Challenging the same, the present writ petition is filed.

7. The learned Assistant Solicitor General of India appearing for petitioners contended that as per Rule 4(a)(i) of House Rent Allowance and Compensatory (City) Allowance – General Rules and Orders (for short, 'the HRA and CCA Rules'), the applicant has to apply for allotment of quarter and if no allotment is made, then only she is entitled for HRA, that an audit objection was taken and that when an earmarked quarter was available, she has not joined in that accommodation. Unless the applicant applied for accommodation, the question of allotting the quarter may not arise. Since she was staying in her own premises during the relevant point of time, she is not entitled to claim HRA. Hence, he prays to allow the writ petition by setting aside the impugned orders passed by the Tribunal.

8. On the other hand, the learned Counsel appearing for respondent No.1 herein (applicant) contended that the Ministry of Urban Development has not issued any special orders in respect of the accommodation in Hyderabad making it obligatory for the employees concerned to obtain 'no accommodation' certificate, that the petitioners herein straightaway ordered for recovery of HRA without giving any opportunity to the applicant, that in respect

of some other cities, special orders have been issued by the Ministry of Urban Development and that the petitioners herein failed to produce any such special orders in respect of Hyderabad is concerned. Therefore, the Tribunal has rightly passed the impugned order and the same does not call for interference of this Court. Hence, he prays to dismiss the writ petition.

9. The factual matrix is not in dispute. At the relevant point of time of the impugned orders before the Tribunal, the applicant was working as a Chief Medical Officer on deputation in CISF Unit at Hakimpet. Her parent Department is Central Government Health Scheme (for short, 'CGHS'). In view of the fact that the applicant was on deputation with the petitioners herein, she is bound by the rules governing the allotment of residential family accommodation. The dispute is with regard to the payment of HRA for the period from 12-9-2003 to 31-7-2005.

10. In pursuance of the audit objection, petitioner No.2 herein passed an order, dated 22/23-12-2004, ordering recovery of HRA to the tune of Rs.50,792/- on instalment basis at the rate of Rs.5,000/- per month from December, 2004 to September, 2005 and the last instalment would be Rs.5,792/-.

11. No doubt, as rightly pointed out by the learned Counsel appearing for applicant that the said order was not preceded by any notice and thereby depriving the applicant an opportunity to give an explanation.

12. In this regard, as already noticed by us, on 04-11-2002 the applicant sought indulgence of the petitioners herein to stay outside the earmarked family quarter on health and personal grounds and thereafter, when the impugned order of recovery came to be issued by petitioner No.2 herein as against the applicant, she made a representation to the petitioners and upon

such representation, the petitioner authorities had considered and passed detailed order rejecting the same. Therefore, no apparent prejudice had been caused to the applicant, inasmuch as, the representation made by her had been considered. She also knew well that the family quarter was available at Hakimpet.

13. Be that as it may, the order, dated 22/23-12-2004, passed by petitioner No.2 herein was not under challenge before the Tribunal. Therefore, the question of validity of that order cannot be decided and determined even by the Tribunal. Even before that, the applicant made a representation on 04-11-2004 stating that she was not paid HRA for the month of October, 2002, that she is a widow having only son studying in Badruka Degree College, Hyderabad, that she may fall sick at any time, that her son's studies would get disturbed in case she shifts her family to Hakimpet, which is far away from city and therefore, she may be permitted to stay in her own house and pay HRA.

14. From the above representation, it can be said that the accommodation is available at Hakimpet and inspite of the said fact, the applicant sought permission to stay in Hyderabad. That application was rejected by order dated 03-12-2004 on the ground that as per the HRA and CCA Rules, as family quarter was lying vacant in NISA/CISF for earmarked allotment.

15. Now, the rules governing the allotment of quarter are -- Rules 4(a)(i) & (ii) of the HRA and CCA Rules, which read as follows:

"4. The grant of House Rent Allowance shall be subject to the following conditions :-

(a)(i) To those Government servants who are eligible for Government accommodation, the allowances will be admissible only if they have applied for such accommodation in accordance with the prescribed procedure, if any, but have not been provided with it, in places where due to availability of

surplus Government accommodation, special orders are issued by the Ministry of Urban Development from time to time making it obligatory for employees concerned to obtain and furnish 'no accommodation' certificate in respect of Government residential accommodation at their place of posting. In all other places, no such certificate is necessary.

(ii) Government servants posted in localities where there is at present no residential accommodation in the General Pool owned or requisitioned by the Central Government for allotment to them, need not apply for Government residential accommodation in order to become eligible for House Rent Allowance. But where Government quarters are available for the staff of specified Departments or for specified categories of staff, the procedure for applying for accommodation will be regulated under the rules of allotment of the Department concerned or of the local office of the Central Public Works Department, as the case may be."

16. No doubt, as seen from Rule 4(a)(i) of the HRA and CCA Rules, as rightly contended by the learned Counsel appearing for applicant that an application for accommodation by the Government servant is required to be made when special orders are issued by the Ministry of Urban Development from time to time making it obligatory for employees concerned to obtain and furnish 'no accommodation' certificate in respect of Government residential accommodation at their place of posting. Admittedly, the petitioners herein have not filed any special orders issued by the Ministry of Urban Development before the Tribunal. Rule 4(a) (ii) of the HRA and CCA Rules postulates that when no residential accommodation in the General Pool owned or requisitioned by the Central Government for allotment, then only the Government servant need not apply for Government residential accommodation to become eligible for HRA. Both the Rules 4(a)(i) and 4(a)(ii) have to be read in juxtaposition, as they have got to be read even in the absence of any other special orders from the Ministry of Urban Development. However, where no residential accommodation in General Pool is available, then only the

Government servant need not apply for residential accommodation.

17. As seen from the audit objection, the plea taken by the petitioners herein in the counter filed before the Tribunal reads as follows:

"During the month of October, 2004, AG, AP, Audit party carried out audit of accounts of this Academy. During the course of audit, it was observed that the petitioner was paid HRA for the period from 09/2003 to 09-2004. Whereas as per rules HRA can't be granted as family quarter was lying vacant in NISA, CISF for earmarked allotment."

18. So, from a perusal of the above, it is very clear that an earmarked quarter was lying vacant and available for the medical officer to stay at Hakimpet. When such is the case, the question of staying outside the earmarked family quarter does not arise. If any Government servant wanted to stay outside other than the earmarked family quarter, then certainly he is not entitled for HRA.

19. The other contention of the learned Counsel appearing for applicant is that her predecessors-in-office have been paid HRA. Therefore, she is also entitled to claim HRA. Under what circumstances they were paid HRA and the other particulars relating to the HRA are not made part of the record even before the Tribunal. Therefore, the case of the present applicant cannot be equated with the case of her predecessors-in-office. Even otherwise, there is estoppel against the statute and the statutory rules made thereunder. Therefore, the Tribunal misinterpreted Rules 4(a)(i) and (ii) of the HRA and CCA Rules, which govern the grant of HRA. If Rules 4(a)(i) and (ii) of the HRA and CCA Rules have to be read together, certainly it is obligatory on the part of the Government servant to make an application for allotment of residential quarter. Admittedly, there was no pleading that the

applicant made an application to the Government for allotment of residential quarter. Furthermore, when an earmarked family quarter is available, there is no other option to the Government servant except to stay in the residential family quarter, which is earmarked for allotment. Thus, the Tribunal went wrong in quashing the order of recovery of HRA partly for the period from 12-9-2003 to

02-12-2004.

20. Therefore, the impugned order passed by the Tribunal is set aside and the application filed by the applicant before the Tribunal is dismissed.

21. In the result, the writ petition is allowed, at the stage of admission, in the circumstances, no costs.

JUSTICE D.S.R.VARMA

___________________

___________________ JUSTICE K.C.BHANU

21 st January, 2008. Ak