-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3604 OF 2009 Surendra Bhaskar Sarode and others ... Petitioners versus The State of Maharashtra and Others ... Respondents WITH WRIT PETITION NO. 3484 OF 2009 Vithal Rambhau Pawar and others ... Petitioners versus The State of Maharashtra and Others ... Respondents In both matters: Mr. N.V. Bandiwadekar for the petitioners. Mr. A.B. Vagyani, AGP, for the State. CORAM: P.B. MAJMUDAR & R.G. KETKAR, JJ. DATE: APRIL 21, 2010. P.C. Rule. Learned Assistant Government Pleader, waives service of rule for the concerned respondents in both the petitions. With the consent of the learned counsel for the petitioners and the learned AGP, both these petitions -2- are taken up for hearing forthwith. 2. The challenge in these petitions is to the action of the respondents in reducing the rate of House Rent Allowance (HRA) and also the action of the respondents of ordering recovery of the amount from the petitioners on the ground that excess payment of HRA has been paid to the petitioners. 3. The petitioners in both the above petitions are the teaching and non­ teaching employees working in the respective schools mentioned in the cause title. Initially they were given HRA at the rate o f 30 per cent. Subsequently, by the impugned order dated 27th May, 2008 (a copy of which is annexed as Annexure­K in Writ Petition No. 3604 of 2009) passed by the Under Secretary on behalf of the State of Maharashtra, a decision was taken to the effect that since the concerned petitioners were not entitled to HRA at the rate of 30 per cent, whatever excess amount paid to such employees should be recovered from them. The petitioners were given HRA at the rate of 30 per cent, though, according to the respondents, the schools in which they are serving are located in the area which is outside the Municipal limits of the Corporation and, therefore, the rate prescribed for HRA is only 5 per cent but by mistake the concerned employees were paid HRA at the rate of 30 per cent for the intervening period. According to the petitioners, it was not open for the State Government to reduce the HRA from 30 per cent to 5 per cent. The learned -3- counsel for the petitioners submitted that the said order was passed without hearing the petitioners. The petitioners have not raised this point in these petitions. On the point of recovery, the learned counsel for the petitioners submitted that though the bills were sanctioned after due scrutiny, no amount should be recovered for the alleged excess payment towards HRA between 5 per cent and 30 per cent. It is submitted that on the representation of the employees, the concerned Finance Minister passed an order granting stay against recovery and deduction of HRA from 30 per cent to 5 per cent and that is how all throughout the teachers were given HRA at the rate of 30 per cent. Learned counsel for the petitioners has further submitted that even though the primary school is also located in the same building where some of the petitioners are working, yet the teachers in the primary school are given HRA at the rate of 30 per cent and their HRA is not reduced to 5 per cent. 4. The learned Assistant Government Pleader, on the other hand, submitted that as per the Rules and Government Resolutions, if the employees working place is situate outside the Corporation area, the rate of HRA payable is only 5 per cent and not 30 per cent. It is submitted that admittedly the schools in which the petitioners are serving are in the Grampanchayat area and, therefore, the rate prescribed for HRA is only 5 per cent and by mistake it was paid at 30 per cent. -4- 5. We have heard the learned counsel appearing for the parties. It is not in dispute that the Schools in which the petitioners are serving are located in the Grampanchayat area and not in the Corporation area. It is also not in dispute that if the place where an employee is working is outside the Corporation area, the HRA payable is 5 per cent of actual basic pay drawn and if it is in Corporation area, the HRA payable is 30 per cent of actual basic pay. Considering the said aspect, in our view, the department is perfectly justified in now reducing the HRA from 30 per cent to 5 per cent. The petitioners are accordingly entitled to HRA at the rate of 5 per cent. Even if by mistake the petitioners are paid HRA 30 per cent, it is not open for them to insist that they must be paid at the same rate. Even assuming that the primary teachers whose place of work is also located in the Grampanchayat area and wrongly paid HRA at the rate of 30 per cent, Articles 14 and 16 of the Constitution of India cannot be pressed into service by the petitioners. However, learned AGP, after taking instructions from the concerned Officer, pointed out that an immediate action will be taken to see that those who are wrongly given HRA at the rate of 30 per cent, they will be paid HRA at the rate of 5 per cent as per the Rules. The statement of the AGP is recorded and the department is directed to proceed in accordance with law in this behalf. 6. As regards recovery of overpaid HRA, learned counsel for the petitioners submitted that the same should not have been effected from the -5- salary of the petitioners. It is required to be noted that the recovery order is not sustainable firstly on the ground that such recovery is effected without giving an opportunity of hearing to the petitioners. This fact as such is not in dispute. If an employee is instrumental in getting benefit in a fraudulent manner, naturally the department is entitled to recover the amount but in the present case, the petitioners are not at fault and the department on their own started giving that benefit. According to the learned AGP, even though the petitioners are not entitled to draw HRA at the rate of 30 per cent, in view of the representation made by the employees and/or their Union that 30 per cent HRA was paid. In paragraph 6 of the affidavit it is stated that the concerned respondent Nos. 4 and 5 have sought guidance from the higher authorities and the same has been received on 27th May, 2008. In our view, it cannot be said that the petitioners have fraudulently and/or by suppressing any fact got the benefit of HRA at the rate of 30 per cent. It may further be noted that the petitioners are not the drawing officers and the salary bills of the petitioners are sanctioned by the pay unit of the Government. 7. Considering the said aspect, in our view, though the petitioners are not entitled to draw HRA at the rate of 30 per cent, yet the decision of the authority in effecting recovery is not justified and, as pointed out earlier, the recovery is effected without giving any hearing to the petitioner in this behalf. Since the petitioners are not instrumental in getting the said benefit of HRA and -6- the same was paid at the rate of 30 per cent after due verification by the concerned officer, in our view, the order of recovery is required to be set aside. Both these petitions are accordingly partly allowed by holding that the petitioners are not entitled to draw HRA at 30 per cent and the department should now pay HRA to the petitioners at the rate of 5 per cent so long as their place of working is not included in the Corporation limits. In view of the above, we further direct that no recovery from the salary of the petitioners shall be effected. 8. Rule is partly made absolute with the aforesaid terms. No order as to costs. P. B. MAJMUDAR, J. R.G. KETKAR, J.