High Court · 2009

This writ petition is directed against the order dated 16.12.200 5 passed by the learned Vice Chairman, Central Administrative Tribunal, Guwahati Bench in OA No.230/2004 holding that the respondents/original applicants are en titled to get House Rent Allowance (in short HRA) at the rate applicable to ’B’ class cities as per the 4th Pay Commission recommendation up to 03.10.1997 and d irecting the writ petitioners to consider the question of applicability of Claus e-3 of the office Memorandum dated 03.10.1997 issued by the Joint Secretary to t he Government of India, Ministry of Finance (Department of Expenditure), and to pass appropriate orders thereon within a period of 4(four) months from the date of receipt of the said order and further to ascertain the rate applicable to ’B’ class cities as per the 4th Pay Commission report with further direction that i f, on verification, it is found that the present respondents (applicants in the OA) were paid at the rates applicable to ’B’ class cities as per the 4th Pay Com mission report, there shall be no question of recovery and on the other hand, if the rate as per the 4th Pay Commission report effective from 01.10.1986 is less than what is paid, then with a further direction not to recover any amount from the respondents, as, such amount was not paid to them on the basis of any misre presentation or fault on their part. It has further been directed by the said or der that if Clause-3 of the office Memorandum dated 03.10.1997 existed and conti nued, then the respondents shall be entitled to get higher rate of HRA and the s ame shall be paid to them without delay.

2. The respondents herein filed a writ petition before the Kohima Bench of this Court, which had been registered and numbered as WP(C) No.149(K)/2002 chall enging the communication dated 14.01.2002 issued by the Desk Officer, Government of India, Ministry of Home Affairs to the Director, Intelligence Bureau, Minist ry of Home Affairs, conveying the sanction of the President for recovery of Rs.4 ,03,708/- on account of the overpaid amount of HRA from March, 1991 to September , 1997 and also the consequential Memorandum dated 31.01.2002 issued by the Assi stant Director to that effect, with a further prayer to direct the respondents t herein (the writ petitioners) to allow them to draw the HRA at the rate applicab le to ’B’ class cities w.e.f. 01.03.1991 along with arrear. The said writ petiti on was subsequently transferred to the learned Tribunal vide order dated 07.09.2 004 as the Tribunal had the jurisdiction to decide the issues raised in the said writ petition and accordingly the same has been registered and numbered as OA N o.230/2004.

3. The respondents herein, who are working in Subsidiary Intelligence Burea u (in short SIB) in Nagaland, have filed the said application contending that th ey being entitled to HRA at the rate applicable to ’B’ class cities, since Nagal and is treated as ’B’ class city, were paid such HRA at the rate applicable to ’ B’ class cities till issuance of the order of recovery and they shall continue t o be entitled to HRA at the said rate, in view of Clause-3 of the Office Memoran dum dated 03.10.1997, even though the 5th Pay Commission recommend Kohima and Di mapur in the State of Nagaland for classification as ’C’ class cities, which has been accepted by the Govt. of India and as such the orders for recovery cannot be sustained in law. In the written statement filed, the present writ petitioner s contended that the respondents are entitled to HRA only at the rate applicable to general category and they are being paid HRA at the rate of 7.5%, which is c ontinuing by virtue of the order dated 03.10.1997 passed by the Government pursu ant to the 5th Pay Commission report treating Kohima and Dimapur as ’C’ class ci ties. It has further been contended in the said written statement that since by misinterpretation of the order passed by the Tribunal dated 22.08.1995 in OA No. 37/1995, HRA at the rate applicable to ’B’ class cities was paid, the orders for recovery of such excess payment from March, 1991 to September, 1997 has been pa ssed.

4. The learned Tribunal upon hearing the learned counsel for the parties an d on appreciation of the materials available on record passed the impugned order , as noticed above, and hence the present writ petition.

5. We have heard Mr. R. Sharma, the learned Asstt. Solicitor General of Ind ia appearing for the writ petitioners. None appeared on behalf of the respondent s.

6. It has been contended on behalf of the writ petitioners that though the respondents herein were entitled to HRA at the rate of 7.5% i.e. the rate applic able to ’C’ class cities in terms of the recommendation of the 4th Pay Commissio n and at the same rate as per the office Memorandum dated 03.10.1997 issued afte r acceptance of the recommendation of the 5th Pay Commission, since by mistake t hey were paid the HRA at higher rate applicable to ’B’ class cities, it necessit ated issuance of the impugned orders for recovery of excess amount paid. It has further been contended that the decision of the Apex Court dated 18.02.1993 in C ivil Appeal No.2705/1991 (Union of India & ors. Vs. Shri S.K. Ghosh & ors.) bein g in respect of the employees of P&T Department, the benefit of the said judgmen t cannot be extended to the employees working in SIB in the State of Nagaland.

7. The contention of the respondents herein before the learned Tribunal was that they are entitled to HRA at the rate applicable to ’B’ class cities as, Ko hima and Dimapur in the State of Nagaland in which they are working, were classi fied as ’B’ class cities by virtue of the 4th Pay Commission report, which has b een accepted by the Government of India. According to them though pursuant to th e 5th Pay Commission report, Kohima and Dimapur were subsequently classified as ’C’ class cities, by virtue of Clause-3 of the office Memorandum dated 03.10.199 7, they are entitled to receive the HRA at the rate applicable to ’B’ class citi es, since no further orders in that regard has been passed by the Government of India as stipulated in the said office Memorandum. It was the further contention of the respondents herein that the Apex Court in Civil Appeal No.2705/1991 havi ng held that the employees of P&T Department, based in Nagaland, are entitled to HRA applicable to ’B’ class cities, they being the employees of the Govt. of In dia are also entitled to the benefit of the said judgment.

8. The Apex Court in Civil Appeal No.2705/1991 (Union of India & ors. Vs. S hri S.K. Ghosh & ors.) vide order dated 18.02.1993 while considering the claim o f Group-C and D employees of Postal & Telecommunication Department posted in the State of Nagaland claiming HRA at the rate as admissible to the employees poste d in ’B’ class cities, referring to the Presidential order dated 08.01.1962, had held that those employees are entitled to HRA at the rate which had been prescr ibed by the 4th Pay Commission recommendations for ’B’ class cities w.e.f. 01.10 .1986. It is not the case of the writ petitioners herein that the said President ial order dated 08.01.1962 granting HRA, to the P&T staff posted in the State of Nagaland, at the rate applicable in ’B’ class cities has been withdrawn. The si milarly placed employees having been allowed the HRA at the said rate, the same cannot be denied to the respondents herein, they being posted in the State of Na galand.

9. It also appears that some of the present respondents earlier approached the learned Tribunal in OA No.279/1997 claiming that they are entitled to HRA at the rate applicable to ’B’ class cities w.e.f. 01.03.1991, which was disposed o f by the learned Tribunal vide order dated 31.05.2001 allowing the said prayer i n terms of the earlier order of the learned Tribunal dated 22.08.1995 passed in OA No.37/1995 and batch. The said order dated 31.05.2001 was passed as agreed to by the parties that the applicants are entitled to such claim, in view of the o rder dated 22.08.1995 passed in OA No.37/1995 and batch. By the order dated 22.0 8.1995 passed in OA No.37/1995 and batch, the learned Tribunal has held that the applicants therein are entitled to HRA at the rate applicable to the Central Go vernment employees in ’B’ class cities w.e.f. 01.03.1991 onwards and they shall be paid accordingly. The said orders of the learned Tribunal have not been chall enged by the present petitioners, who were the respondents therein, in the highe r forum.

10. Since the present respondents, who are posted in Kohima and Dimapur in t he State of Nagaland, are entitled to the HRA at the rate applicable to the empl oyees in ’B’ class cities, they are to be paid HRA in the same rate, in view of Clause-3 of the office Memorandum dated 03.10.1997, until further orders are pas sed by the Central Government in that regard. For better appreciation Clause-3 o f the Office Memorandum dated 03.10.1997 is reproduced below:- (cid:28)3. The cities/towns which have been placed in a lower classification in the above mentioned lists, as compared to their existing classification shall conti nue to retain the existing classification until further orders and the Central G overnment employees working therein will be entitled to draw the rates of CCA an d HRA accordingly. (cid:29)

11. The learned Tribunal, apart from holding that the respondents herein are entitled to HRA at the rate applicable to the ’B’ class cities, in the absence of any material on record relating to the passing of any order by the Central Go vernment in terms of Clause-3 of the Office Memorandum dated 03.10.1997, has als o directed the writ petitioners to consider the question of applicability of Cla use-3 of the office Memorandum dated 03.10.1997 in the case of the respondents h erein and to pass necessary orders thereon within a period of 4(four) months, wi th further direction that there should not be any recovery, even if it is found that they were paid the HRA more than to which they are entitled to, after 03.10 .1997, as such payment was not made due to misrepresentation on the part of the present respondents. The further direction has also been issued directing that i f it is found that Clause-3 of the office Memorandum dated 03.10.1997 still exis ted and continued, in the case of the present respondents, then they shall be en titled to get higher amount of HRA and accordingly they shall be paid the same. Such findings and directions, in view of the aforesaid discussion, have rightly been recorded and issued by the learned Tribunal, which requires no interference .

12. The writ petition, therefore, stands dismissed. No cost.