1 wp7931-10.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO.7931/2010 Kantilal Singa Paradke and others. .. Petitioners Versus 1] The State of Maharashtra and others ... Respondents .... Mr.A.G.Magare, Adv.for petitioners. Mr.D.R.Korde,AGP for Respondent no.1 & 2 Shri D.S.Bagul,Adv.for Respondent no.4 ... WRIT PETITION NO.3848/2009 Shri Dilip Hunya Pawara and others .. Petitioners Versus The State of Maharashtra and others. .. Respondents. .... 2 wp7931-10.odt Mr.A.G.Magare, Adv.for petitioners. Mr.D.R.Korde,AGP for Respondent no.1 & 2 Shri D.S.Bagul,Adv.for Respondent no.4 .... CORAM : NARESH H.PATIL AND T.V.NALAWADE, JJ. ORDER RESERVED ON : 15/12/2011 ORDER PRONOUNCED ON : 20/12/2011 ORAL ORDER : [PER NALAWADE,J.] 1] Both these petitions are filed under Article 226 of the Constitution of India to challenge the order passed by Divisional Controller, M.S.R.T.C. Dhule Division, Dhule in pursuance of circular dated 23/7/2008 issued by General Manager, M.S.R.T.C. Mumbai and another circular of the State Government dated 22/9/2006 [Tribal Development Department, Maharashtra State,Mumbai]. The prayer is made to issue direction to the respondents to provide sufficient and proper accommodation or residential quarters to the petitioners at Akkalkuwa depot of M.S.R.T.C. Dhule Division. The prayer is made for issuing direction 3 wp7931-10.odt against the respondents that they should pay to the petitioners the arrears of encouragement allowance of the petitioners on the basis of one Government Resolution from the period from 1/7/2002 till 9/11/2005. Prayer is made to prevent the respondents from recovering the amount already paid as the allowance to the petitioners under Government Resolution dated 9/3/1990. 2] Both the sides have filed relevant record. This Court has perused the record and both sides are heard. 3] The petitioners are working on posts like Driver, Conductor, Helper, Traffic Controller, Mechanic, Ticket Checker etc. with M.S.R.T.C. It is their contention that they are posted at Akkalkuwa depot of M.S.R.T.C. which is covered by Taloda project and it is declared as Naxalite area. It is contended that by G.R. dated 9/3/90, the State Government had declared that amount of 15% of the basic pay would be given as encouragement allowance to the officers and employees working in Naxalite areas and extra sensitive areas and the petitioners are entitled to claim 4 wp7931-10.odt benefit of this G.R. It is made clear by G.R. dated 6/8/2002, that the aforesaid G.R. was to be implemented from 1/7/2002. It is contended that inspite of such G.Rs., the respondents are not giving allowance. It is contended that representations were made by petitioners in the year 2007 and then the respondents started paying such allowance w.e.f. 9/11/2005. It is contended that they are entitled to get the allowance w.e.f. 1/7/2002. 4] It is the case of petitioners that on 4/8/2008, in pursuance of circular of General Manager of M.S.R.T.C. and the circular of the State Government, [Tribal Development Department] dated 22/9/2006, the Divisional office issued a circular dated 4/8/2008 and it has directed to make enquiry about the actual residence of the employees who are taking such allowance. It is contended that under the circulars, a direction is given to recover the encouragement allowance from the employees who are not actually residing at the place of posting and there is direction that such allowance is not to be paid to the employees who are not ordinarily residing at the place of the posting. It is contended that 5 wp7931-10.odt other department of the Government like M.S.E.B. are getting benefits of the G.R. and there is no reason for the respondents to deny the benefits to the petitioners. 5] Affidavits are filed by both the sides and the record of enquiry made by officers of respondents in respect of the ordinary residence of the petitioners and other employees is also produced. It is mainly submitted for the petitioners that though most of the petitioners are not residing at the place of posting like Akkalkuwa, they are residents of place like Taloda which is also declared as extra sensitive area and which is also covered under the relevant G.Rs. It was submitted that the respondents have not made the residential quarters available at Akkalkuwa and as the houses are not available on rent basis, they are residing at Taloda. It was submitted for respondents that as per the G.Rs. the allowance can be given only to the employees who are ordinarily residing at the place of posting. It was also submitted that in view of the other G.R., if there are not residential quarters available with the respondents, the employees are entitled to get H.R.A. and it is not 6 wp7931-10.odt service condition that each employee should be provided with a residential quarter at the place of posting. 6] Copies of the G.Rs. dated 9/3/1990, 30/7/92, 5/2/99, 6/8/2002 and 9/11/2005 are produced by respondents. Right from the first G.R. the Government has made it clear that the object behind giving encouragement allowance was to make the employees to reside at the place of their postings. The allowance was to be payable only to those employees who were ordinarily residing at the place of their postings. Some areas were declared as tribal areas in the initial G.Rs. and it was made clear that even after posting in such areas if the employees are not ordinarily residing there, they will not be entitled to get such encouragement allowance. In G.R. of 1999, encouragement allowance was increased. In the G.R. of 1999, it was reiterated that the allowance was payable to only those employees who were actually residing at the place of their posting. The G.R. of August 2002 shows that it was made clear to the employees posted in Naxalites areas that the employees were expected to stay at the place of 7 wp7931-10.odt posting all the time and were not expected to leave the Head quarters without taking prior permission of the superior officers. It was declared that at the tribal places for the employees who can be transferred, rented accommodation can be provided. If such tribal places were declared in the said G.R. Some other concessions and benefits were also given to the employees working in such areas. Initially Akkalkuwa was included in the aforesaid areas and by G.R. dated 9/11/2005, Taloda, Dist.Nandurbar was also included in notified areas. In the first G.R. of 1990, some areas were declared as tribal areas where the benefit was to be given to the employees. The G.R. of 2005 shows that the amount of encouragement allowance is 15% of the basic pay with the condition that every employee will get atleast Rs.200/- and maximum of Rs.1500/- per month. 7] Copies of representations made by petitioners and other employees show that they were claiming that they were serving at Akkalkuwa which was declared as sensitive area or naxalite area by the State Government and so they are entitled to get the 8 wp7931-10.odt allowance though they are ordinarily residing at other places like Taloda. It appears that by circular dated 22/9/2006 the Government again made it clear that the allowance would be payable only to those employees who were actually residing at the place of such posting and it will not be payable to those employees who were not ordinarily residing at the place of the posting. There is specific mention in the circular that the employees who are residing at other places and are generally commuting to the place of posting will not be entitled to get the encouragement allowance. The circular of Divisional office of M.S.R.T.C. dated 4/8/08 shows that direction was given to see that such encouragement allowance is paid only to those employees who are actually and ordinarily residing at the place of posting. Further direction is given that if allowance is already paid to the employees who are not residing at the place of posting, amount of allowance already paid is to be recovered. 8] The advocate of the petitioner placed reliance on one circular issued by M.S.E.D. dated 10/5/2007 in this regard but this circular 9 wp7931-10.odt is of no help to the petitioners as this circular also mentions that if the employees are posted at Taloda, then they are entitled to get such allowance. It was submitted that at Taloda, there is Head quarter of M.S.E.D. and so there are such postings. Admittedly, Taloda is situated at the distance of more than 25 Kms. from Akkalkuwa and most of the petitioners are posted at Akkalkuwa. For clarification, one more circular was issued by M.S.R.T.C. on 21/8/09 and direction was given to see that the allowance is paid only to the employees who are actually and ordinarily residing at the place of their postings. 9] The aforesaid G.Rs. and the object behind the scheme of the Government show that the encouragement allowance can be claimed only if the employees are residing at the place of posting which is declared as extra sensitive or naxalite areas. If they are living at other places including other similar areas, away from the Head quarters, they cannot get the allowance. The purpose behind the scheme of the Government is to encourage the employees to stay at the place of their posting which is naxalite 10 wp7931-10.odt area and also to see that the employees are readily and immediately available to the employer in case of exigency. If any other interpretation of the G.R. is made, it will frustrate the purpose of the G.Rs. In any case, the employees have no right as such to stay at other places than the place of their postings. Even if the employer permits the commutation due to the stay of the employee at other place the employees will not be entitled to get the encouragement allowance. Thus, no case is made out by petitioners to interfere with the direction given against the petitioners in the circulars issued by the Government and M.S.R.T.C. on the basis of the G.Rs. issued in 1990, 1992, 1999, 2002 and 2005. So both the Petitions are rejected. (T.V.NALAWADE, J.) (NARESH H. PATIL,J.) umg/wp7931-10