1 hvn IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITON NO. 6484 OF 2009 The State of Maharashtra and Ors. ... Petitioner Versus Shri. K.G. Koli and Ors. .... Respondents WITH WRIT PETITON NO. 6485 OF 2009 The State of Maharashtra and Ors. ... Petitioner Versus Shri. M.A. Shimpi and Ors. .... Respondents Mr. S.N. PATIL, A.G.P. for the Petitioner. None for Respondents. CORAM : F.I. REBELLO & J.H.BHATIA, JJ. DATED : NOVEMBER 09, 2009 P.C. By the present petition, the Petitioners herein impugn the order of the learned tribunal dated 16.10.2008 in W.P. No. 6485 of 2009 and order dated 1.10.2008 in W.P. No. 6484 of 2009. Rule had been issued in both the petitions. The Petitions have come up for interim relief. After hearing the parties, we thought that the matters could be finally decided. The Original Applicants who are respondents before this court had moved 2 Original Application on the ground that the Petitioners herein had stopped payment of H.R.A. Earlier on the similar issue, O.A. No. 1170 of 2003 and other applications had been filed. By order dated 27.04.2004, the learned tribunal held that the applicant before it were entitled to H.R.A. Subsequent thereto the Supreme Court in Director, Central Plantation Crops Research Institute and Ors. Vs. M. Purushottam and Others, AIR 1994 SC 2541 was considering the O.M. Dated 27.11.1965 and Para 4 of the said O.M. On consideration of the said O.M. as also Fundamental Rule 9(21)(a) the learned Supreme Court was considering the issue where the official accommodation was offered to the employees of the Appellant Organization viz. the Central Plantation Crops Research Institute and they refused to occupy the same, whether they would be entitled to benefit of H.R.A. Considering this judgment, it was the case of the Petitioners that there was change in circumstance and consequently the impugned order. The learned tribunal by its impugned orders has been pleased to hold in favour of the O.A. The learned counsel for the State relied upon G.R. dated 30.5.1989. If the G.R. is properly construed, it is submitted that the Respondents herein would not be entitled to H.R.A. We find that there are two relevant clauses of the G.R. Dated 30.5.1989 which are to be considered. They may be gainfully reproduced : “(2) Government servants who refuse Government residence or those who vacate Government residence with one month’s prior notice, shall be held eligible for House Rent allowance from the date of vacation of 3 Government residence or 30 days after the date of notice, whichever is later. (3) Government servants holding the posts for which the concession of rent-free quarters has been sanctioned as a condition of service should be held eligible for House Rent Allowance in lieu of rent free quarters, even if they vacate the Government residence allotted to them, by giving one month’s prior notice, provided, the concerned Head of the Office records a specific certificate to the effect that, the residence so vacated did not remain vacant during the period for which House Rent Allowance in lieu of rent free quarters is sanctioned. (4) Government servants holding the posts for which residences have been assigned could also claim House Rent Allowance on vacating such residences with prior permission of the concerned Head of the Department/Administrative Department, provided that such residence does not remain vacant. Provided further that this facility will not be available to a Government servant for whom it is necessary that he should reside in the assigned residence as a requirement of his duties. For this purpose, all Heads of Departments should undertake a review of the posts in respect of which, it is essential that the incumbent must reside in the assigned residence, and such posts should be identified in consultation with the General Administrative Department and Finance Department. Such a review should be completed within a period of six months from the date of issue of these orders for 4 identifying such posts.” On the construction of the G.R. the following emerges : In terms of the direction No. 2 the Government servants who refuse Government residence or those who vacate Government residence within one month’s prior notice, shall be held eligible for House Rent Allowance. In respect of Government servants holding posts for which the concession of rent free quarters has been sanctioned as a condition of service, should be held eligible for House Rent Allowance in lieu of rent free quarters, even if they vacate the Government residence allotted to them, by giving one month’s prior notice, provided the concerned Head of the Office records a specific certificate to the effect that the residence so vacated did not remain vacant during the period for which House Rent Allowance in lieu of rent free quarters is sanctioned. Government servants holding the posts for which residences have been assigned, could also claim House Rent Allowance on vacating such residences with prior permission of the concerned Head of the Department/Administrative Department, provided that such residence does not remain vacant. It is further provided that this facility will not be available to a Government servant for whom it is necessary that he should reside in the assigned residence as a requirement of his duties. The Respondents herein are employees of the hospital run by E.S.I.S. and 5 most of them are class IV employees. While considering whether they are entitled to H.R.A. or not, the learned tribunal ought to have addressed itself to Clause (3) and (4) considering that the staff are attached to a hospital. We do not find that the learned tribunal has addressed itself to this issue. Normally once there be an earlier order of the tribunal, it will not be open to the Petitioner State unless there is a change of law to vary the conditions of service. However, considering the G.R. Dated 30.5.1989 and the implications it could have on the accommodation constructed by the State and which are lying vacant, in our opinion, the ends of justice would require that Clause (3) and (4) of the G.R. are considered. In th light of that impugned orders are set aside. The matter restored back to the tribunal to consider the admissibility of H.R.A. to Respondent applicants for government quarters, bearing in mind Clauses (3) and (4) of the G.R. Dated 30.5.1989 and further whether the earlier view taken in O.A. No. 272 of 2008 and other applications is no longer good law in view of the subsequent judgment of the Supreme Court in M. Purushottam.. The learned tribunal also to consider the effect of the earlier order passed by the Tribunal in favour of the Respondents. Rule made absolute accordingly. No order as to costs. (J.H.BHATIA, J.) (F.I. REBELLO,J.)