1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. WRIT PETITION NO. 5244 /2010 ( Sanjay D. Solanki and another vs. State of Maharashtra and others ) _______________________________________________________________________ Office Notes, Office Memoramda of Coram, appearances, Court's orders of directions Court's or Judge's orders. and Registrar's Orders. ______________________________________________________________________________ CORAM : B.P.DHARMADHIKARI & A.P.BHANGALE, JJ. DATED : 8th December, 2011. Heard Mr. A A Naik, learned counsel for the petitioner; Mr Ahirkar, learned AGP for respondent nos. 1 and 2 and Mr. Meghe for respondents 3 to 5. It is apparent that establishment of respondent nos. 3 to 5 was earlier in urban area and hence HRA as applicable in urban area was being paid to its employees i.e. petitioners. After 1993, the institution has been shifted to rural area. However, it appears that in spite of this shifting, payment of HRA at urban rate was continued. In May 1999, the Government permitted this payment to continue subject to obtaining an undertaking from employees that in case their demand for release of HRA at urban rate is rejected by State Government, they would refund the extra amount of HRA so 2 received, to respondents 3 to 5. Mr Naik contends that undertaking in terms of this direction dated 25th May, 1999 undertaking has been furnished and it was, therefore, obligatory for the State Government to take appropriate decision within reasonable time. That decision was not taken till 16.6.2010 and hence there cannot be any recovery of arrears from petitioners on account of alleged excess payment. He contends that fact of shifting was within knowledge of the State Government and amount of HRA received has been used by the petitioners every month and they are, therefore, not in a position to refund it. Mr. Meghe, appearing for respondents 3 to 5 is supporting the arguments of Advocate Naik. He contends the Government ought to have taken appropriate decision within reasonable time. Mr. Naik has also invited attention to fact that though Khadakwasla is a place outside urban area of Pune city, employees working at Khadakwasla are being paid HRA at urban rate applicable in Pune city. He points out that after specific orders of this Court dated 15.11.2011 additional affidavit has been filed by respondents 1 and 2 on 28.11.2011 and therein they have referred to Government Resolution dated 15.2.1963. According to him, the resolution enables the employees at Khadakwasla to draw HRA at Pune rate and 3 Government has justified this resolution only by pointing out “peculiar condition and circumstances”. Learned counsel, therefore, states that there is absolutely no jurisdiction for not extending similar treatment to present petitioners. Learned AGP contends that the refund is from May, 1999 onwards up to 16.6.2010 and because of communication dated 25th May 1999 petitioners or their employers, therefore, could have taken steps to obtain appropriate decision from State Government within reasonable time. He further contends that Khadakwasala matter is entirely different as there a conscious decision to pay HRA at Pune rate, has been taken. After hearing respective counsel, we find that in the case of present petitioners there is no conscious decision taken by the State Government to continue payment of HRA at urban rate. In case of Khadakwasla employees their appears to be some decision taken on 15.2.1963. However, necessary details of said resolution dated 15.2.1963 or then alleged peculiar condition or circumstances are not on record. Hence, we are not inclined to conclude the said aspect on argument of discrimination at this stage. However, we find that in case of present petitioners, the State Government has not raised any objection to payment of HRA at urban rate, at least from 1994 till May, 1999. 4 It is also not in dispute that as on today, the petitioners are receiving HRA at rural rate. In this situation, we find that interest of justice can be met with by permitting the petitioners to make appropriate representation to State Government for waiving arrears to be recovered from them and for that purpose they can also rely upon the Government Resolution dated 15.2.1963. If such a representation is made within a period of six weeks from today, the State Government shall look into it within further period of twelve weeks and take appropriate decision after hearing the petitioners and management of respondents 3 to 5. Further course of action shall then be in accordance with that decision of the State Government. Till State Government takes appropriate decision as mentioned above, recovery in pursuance of impugned communication dated 16.6.2010 shall not be effected. Accordingly, with these directions and observations, we dispose of the petition. No costs. JUDGE JUDGE sahare