IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.728 of 1997 1. SMT.MANJU RANI BOUL, w/o Sri Surya Narayan Lal 2. smt. Saroj Kumari, w/o Sri Chandeshwar Thakur 3. Smt. Ram Kumari, w/o Sri Umesh Kumar Thakur 4. Smt. Manju Verma, w/o Sri Ashok Kumar Sinha 5. Smt. Mina Kumari, w/o Sri Ajoy Kumar Pandey 6. Smt. Kanti Sinha, w/o Sri Ram Bihari Thakur All Staff Nurses, Grade „A‟ Sadar Hospital, Samastipur. 7. Smt. Shanti Devi, w/o Sri Ram Bali Jha, Lady Health Visotor, IPP-7, A.N.M. School, Samastipur. 8. Smt. Radhika Kumari w/o Sri Ashok Kumar Sharma, staff Nurse, A. N. M. School, Samastipur. 9. Smt. Shantilata Roy, w/o Sri Bhola Rai, Principal, A. N. M. School, Samastipur. … Petitioners. Versus 1. THE STATE OF BIHAR 2. The Director-in-Chief, Health Services, Department of Health, Medical Education and Family Welfare, Govt. of Bihar, Patna. 3. Superintendent, Sadar Hospital, Samastipur-cum- Superintendent. A. N. M. School, Samstipur. 4. Finance Commissioner, Government of Bihar, Patna. 5. Accountant General, Government of Bihar, Patna. … Respondents. ----------- 10. 06.07.2010 Heard learned counsel for the petitioners and learned counsel for the State. The prayer of the petitioner in this writ petition reads as follows:- “1. That this is an application for issuance of a writ in the nature of certiorari to quash the order contained in Memo No. 95 dated 24.12.96 issued by the Superintendent, Sadar Hospital, Samastipur-cum- Superintendent, A.N.M. School, Samastipur (Anneuxre-2) by which deduction at the rate of Rs.500/- per month was directed to be made from the salaries of petitioners no. 8 and 9 and further for issuance of a writ in the nature of Mandamus and/or any other 2 appropriate writ/writs, order or direction directing the respondents not to deduct any amount from the salaries of petitioners no. 1 to 7 which is proposed to be deducted from the next month @ Rs.500/- per month; further for issuance of an appropriate writ, order or direction commanding the respondents to refund the amount already deducted from the salary of the petitioners No. 8 and 9 and not to make any further deduction form the salary of the petitioners and further for issuance of an appropriate writ, order or direction commanding the respondents to grant House Rent Allowance (hereinafter referred to as H.R.A.) to the petitioners @ 10% of their salary as they are being given as usual since the time of their appointment like others similarly situated Nurses and Lady Health Visitors (hereinafter referred to as the L.H.V.) posted at other places in the State of Bihar.” Counsel for the petitioners in support of the aforementioned prayer would submit that the impugned order as with regard to the petitioner nos. 8 and 9 and contemplated action against rest of the petitioners on the same line for making recovery of the house rent allowance already paid to the petitioners is wholly arbitrary inasmuch as it is the part of the service conditions of the petitioners holding the post of staff nurses that either they will be 3 given a government quarter/accommodation or 10 % of salary in lieu thereof by way of house rent allowance. In this context, he would refer to the Government communication issued by the Health Department in its letter no. VI/N3-7024/69-569(6)/H dated 28.2.1970 wherein there is a direct reference to nurses being entitled to rent free furnished quarter or house rent allowance in lieu thereof at the rate of 10% of pay subject to minimum of 7.50 paise per month if free quarters at the cost of Government cannot be provided. He has also relied on appointment letter of one of the petitioners to contend that even in that appointment letter there was specific condition of payment of HRA @ 10% in absence of allotment of government accommodation. He would therefore submit that the audit objection based on some government circular would not be made applicable in the case of the petitioners and the contemplated action of making recovery against them for the HRA already drawn by them is wholly unsustainable in law. In this regard, it is also submitted that the petitioners having already received hire financial benefit, 4 could not have been subjected to any adverse order casting evil and civil consequences without giving an opportunity of hearing to them and since the order in question (Annexure-2) was passed without any such notice and/or opportunity of show-cause, the same was also in violation of the principles of natural justice. Counsel for the State, on the other hand, would submit that once there was an audit objection on the basis of government circular for payment of HRA to the employer as per the fixed amount for the specified city, the authority of the Health Department had no option but to comply such audit objection. He has also submitted that though he had wanted the Finance Department to give instruction on the subject but all that was given to him was a resolution dated 16th August 1991 which in fact even does not answer the question involved in this writ petition. After considering the aforementioned aspects one thing that emerges beyond pale of doubt, is that the petitioners‟ service condition having been defined in their 5 appointment letter clearly stipulating grant of 10% of their salary as HRA in the event of their being not allotted government accommodation, they cannot be subjected to recovery by any general order issued by the Finance Department unless the terms and conditions of the appointment is varied to their disadvantage after giving them a notice and/or opportunity of hearing. Here in this case, as would appear even from the earlier decision taken in the year 1970 (Annexure-3) as referred to above that it was a conscious government decision that every staff nurse will be entitled to rent free furnished quarter or house rent allowance in lieu thereof at the rate of 10 % of pay. Such condition was in fact communicated in the subsequent appointment letter and therefore whatever later on was recommended by the pay revision committee even in respect of payment of HRA or to be implemented by the Finance Department could not have affected the persons like the petitioners. This Court, however, is not sure of the same terms and conditions of the 6 appointments of all the petitioners inasmuch as there is only one specimen of appointment letter and that too not in a particular name. Thus, this aspect whether the same service conditions was applicable for all the petitioners and whether their order of appointment itself had incorporated the term for payment of 10 % of salary as HRA requires an enquiry by the competent authority. Since the entire action against the petitioners has been taken under the authority of the Finance Department, this Court would direct the Finance Commissioner to look into this aspect either by himself or by officer authorized by him but not below the rank of Joint Secretary to the State Government. Such authority will look into two aspects; firstly whether the Government decision of the year 1970 as contained in Anneuxre-3 was still in force when the impugned order was passed and secondly, whether the individual order of appointment of the petitioners had contained, the clause with regard to their entitlement of payment of 10 % of salary as house rent allowance. In fact, if the appointment letter of the petitioners had contained this Clause 7 of 10 % of salary as HRA in lieu of allotment of quarter that would be the end of the matter so far the petitioners are concerned, at least with regard to the earlier amount paid to them. It will however be always open to the Government to vary the future service conditions of the petitioners but only in accordance with law and that too after giving notice and/or opportunity of hearing to the petitioners. Till it is done so, the petitioners cannot be subjected to any recovery or disadvantage of being paid lesser 10 % of their salary as HRA. In view of the fact that this Court by an interim order had already stayed the operation of the impugned order on 26.8.97 and the same has continued till date, this Court while disposing of this writ petition would direct that such interim order shall continue till a final decision is taken by the Finance Department. This writ petition is, accordingly, allowed. Annexure- 2 so far it relates to, petitioner nos. 8 and 9, are concerned, is hereby quashed and the matter is remitted to 8 the Finance Commissioner of the State of Bihar who as noted above will decide the matter preferably within a period of six months from the date of receipt/production of a copy of this order. The petitioners will not be entitled for individual notice and in fact must appear before the Finance Commissioner for claiming any further benefit in this matter within a period of one month from the date of receipt/production of a copy of this order, failing which it would be open for the Finance Commissioner to pass his final order. It is also made clear that none of the petitioners will be entitled for the enhanced H.R.A. i.e. 10% of their salary either arrear or current, till the matter is finally disposed of by the Finance Commissioner. kanchan (Mihir Kumar Jha, J.)