Sreemoyee Kar & Ors. v. State of West Bengal

a) The Audit Memo dated November 16, 2017 and Memo No. 2554/G-SE dated December 28, 2017 are held to have been issued without authority of law and is set aside on the grounds of being issued on irrelevant considerations and being manifestly arbitrary/discriminatory, in effect as per the law laid down in Subhasis Negel (supra). b) Pertaining to the State(cid:0)s access to limited pool necessitated this purported rejig of policy in the first place, such argument stands self-demolished for the reason that employees of State aided colleges and universities are getting the full benefits of drawal of HRA, notwithstanding that their spouses might be engaged in private employment. With a lack of a certain legitimate objective being met by the State, this therefore, becomes a clear case of unreasonable classification and hence is violative of the tenets of equality enshrined under Article 14 of the Constitution of India. c) Notwithstanding the unreasonable classification which was carried out in the case of the petitioners which is patently violative of Article 14 of the 3 The furnished impugned, Constitution of India, no technical or expert findings or relevant factors had the State Respondents to justify the need for the alleged modification of such policy concerning the drawal of HRA, by the petitioners. There is no demonstration as to the extent of fiscal prudence sought to be achieved by the State by purportedly bringing into consideration the HRA of the spouses (engaged in private employment) of those employees who are serving in nonGovernment/ Aided/Sponsored educational institutions, to trigger the common ceiling under the ROPA Memorandum of 2009 and thereby specifying the quantum of funds saved, public exchequer. Therefore, such an irregular policy decision merits an interference of this Court as per the principles laid down in Subhasis Negel (supra) and Federation of Railway Officers Association (supra). d) clarificatory Corrigendum dated December 27, 2018 read with the Finance Department Memo No. 5839-F(P) dated July 9, 2012 is applicable in the matters of grant of HRA to a state government employee, who are governed by the altogether separate West Bengal Service (ROPA) Rules, 2009 issued vide Memo No. 1691-F dated February 23, 2009 and for the self- same reason, it is inapplicable to the category of employees employed in nongovernment sponsored institutions, who are governed by the ROPA Memorandum of 2009 for Non- Governmental Educational Institutions, issued by Memo. 46-SE(B) dated February 27, 2009. e) clarificatory corrigendum dated December 27, 2018 (which was issued post the initiation of the present litigation) in so far as it is inconsistent by including within its ambit employees who are serving in non- Government/Aided/Sponsored educational institutions is liable to be struck down for being violative of the Finance Department Memo No. 5839-F(P) dated July 9, 2012. The impugned, clarificatory corrigendum could not have risen above its source and is accordingly set aside impugned, The 4 to such degree of inconsistency as aforesaid. ceiling envisaged

#49. In view thereof, the State Respondents are hereby directed to ensure complete conformity in the payment of HRA which is payable to the petitioners in accordance with ROPA Memorandum of 2009 which is applicable to them along with any connected memos, that maybe applicable. If in any case, the payment of such HRA has been stopped in pursuance of the Audit Memo dated November 16, 2017, Finance Department Memo No. 5839- F(P) dated July 9, 2012, and Memo No. 2554/G- SE dated December 28, 2017 or other similar memos that have been issued by the various District Inspectors of Schools (S.E) across the State of West Bengal, the arrears of the same must be paid to the petitioners within six weeks from the date of this judgment.” Counsel for the State would argue that an appeal has been preferred by the State being MAT No. 1023 of 2021 against the said judgment and order, which is since pending. The said judgment dated 16th March, 2021, has not been stayed by the Division Bench. The said judgment is therefore in force and holds good even as on date. This Court is in complete agreement with the views expressed by His Lordship of a Co- ordinate Bench in the case of Mousumi Biswas (supra). In that view of the matter, this Court directs the State to first release HRA benefits to the petitioners in terms of the applicable rules (excluding the impugned Memos), together with complete arrears till date. Any recoveries already 5 made, shall be refunded to the petitioners, within a period of six weeks from date. Any order of recovery still pending, shall remain automatically stayed. The petitioners shall continue to receive HRA as if the impugned Memos are not in force. Needless to mention, the aforesaid order shall abide by the final result of MAT No. 1023 of

#2021. For the purpose of complying with the aforesaid order, both the School authorities shall forthwith send appropriate requisition/bills and/or calculations to the D.I. of Schools, who shall release payment, within the time stipulated hereinabove. With the aforesaid observations, the writ petition shall stand disposed of. There shall be no order as to costs. All parties shall act on the server copy of this order duly downloaded from the official website of this Court. (Rajasekhar Mantha, J.)