1 4093.11 SQP IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4093 OF 2011 1.State of Maharashtra, Through the Principal Secretary, Education Department, Higher & Technical Education, Mantralaya, Mumbai – 32. ...Petitioners Versus Smt.Swati Dattatraya Wavahal, Lecturer in Microbiology, Elphinstone College, 156 M.G.Road, Fort, Mumbai – 32 R/o:A/603, Dosti Mercury, Sheikh Mesiry Road, Wadala, Mumbai – 400 032. ...Respondent ...... Mr.A.B.Vagyani, A.G.P. for Petitioner. Respondent present in-person. ...... CORAM:- A.M.KHANWILKAR AND R.Y.GANOO, JJ. DATED:- JUNE 24, 2011. ORDER (Per A.M.Khanwilkar, J. ) : 1. Heard Counsel for the petitioner as well as respondent appearing in- person. 2 4093.11 2. Rule. Rule made returnable forthwith, by consent. Respondent waives notice. 3. As short question is involved, Petition is taken up for final disposal forthwith, by consent. 4. This Petition takes exception to the Judgment and Order passed by the Maharashtra Administrative Tribunal dated 30th June, 2010 in Original Application No.229 of 2006. Briefly stated, the respondent joined as Lecturer in Microbiology in Elphinstone College on 5th September, 1990. Later on, she was appointed in the same post through Maharashtra Public Service Commission on 17th July, 1997. On 29th October, 2004, she was entrusted with additional charge of Resident Assistant Superintendent (R.A.S.) with effect from 3rd November, 2004. It is her case that she was orally informed that the House Rent Allowance which was given to her while she was working as the lecturer, would be continued even though she would be occupying Government accommodation in the capacity of Resident Assistant Superintendent in the Hostel. On the basis of this solemn assurance, it is the case of the respondent, she took over the charge as Resident Assistant Superintendent. However, on 18th March, 2006, she 3 4093.11 received communication from the College that she is required to reimburse the House Rent Allowance received by her from 3rd November, 2004 onwards. After receipt of the said communication, respondent made representation and eventually filed Original Application before the Tribunal being Original Application No.229 of 2006. In the Original Application, the respondent prayed for following reliefs: “(a) By a suitable order/direction, this Hon.Tribunal may be pleased to quash and set aside the order dated 18.3.2006 issued by the Respondent under which the Petitioner was informed that HRA amount which has been received by the Petitioner from 3.11.2004 till February 2006 has not been deducted and therefore, the same will be recovered from the Petitioner’s salary for the month of March 2006; and accordingly, the Petitioner be granted all the consequential service benefits. (b) By a suitable order/direction, this Hon.Tribunal may be pleased to hold and declare that the Petitioner was/is entitled to receive HRA as was being received by the Petitioner till February 2006 and accordingly, the Respondent be directed to continue to pay the HRA to the Petitioner for the subsequent months till the Petitioner held additional charge of the post of Resident Assistant Superintendent. (c) By a suitable order/direction, this Hon.Tribunal may be pleased to hold and declare that the Petitioner was entitled to receive special pay as per the Government Rules in respect of the additional charge held by her vis-a-vis the post of Resident Assistant Superintendent for the said period when she held such charge and the same may be ordered to be paid to her forthwith. (d) Costs of this Petition be provided for; (e) Any other order necessary in the interest of justice may kindly be issued. 4 4093.11 10. Interim order prayed for : Pending hearing and final disposal of this Original Application, the Petitioner seeks the following interim relief- (a) Pending hearing and final disposal of this Petition, this Hon.Tribunal may be pleased to stay the execution/ operation/ implementation of the impugned order dated 18.3.2006 issued by the Respondent under which the Petitioner was informed that HRA amount which has been received by the Petitioner from 3.11.2004 till February 2006 has not been deducted and therefore, the same will be recovered from the Petitioner’s salary for the month of March 2006.” 5. The Tribunal by the impugned Judgment has allowed the Original Application by setting aside the communication dated 18th March, 2006 which, as aforesaid, pertains to the demand of reimbursement of House Rent Allowance already received by the respondent from 3rd November, 2004. The Tribunal in the first place, found that the Government was not able to produce any specific orders disclosing the policy to be followed in respect of a teaching staff who is given additional charge of Resident Assistant Superintendent as to whether on such appointment, the said employee would cease to enjoy the House Rent Allowance which he was otherwise entitled to in his earlier tenure. Besides, the Tribunal found that the Department was extending facility of House Rent Allowance to employees working in the Government Arts, Science College, Aurangabad, Institute of Science, Aurangabad. The Tribunal, therefore, held that there 5 4093.11 was no tangible basis to refuse the said facility to the respondent and for that reason, to call upon her to reimburse the amount already received by her towards House Rent Allowance. This decision is the subject matter of challenge in the present Petition by the State. The petitioner State has not only criticised the impugned Judgment by relying on the Government Resolution dated 25th April, 1988 but also placed on record that employees who are similarly placed such as Dr.S.V. Dongardive and Smt.Vijaya Yeole were not paid House Rent Allowance. Further, the Department has already initiated action against the Officials who have received House Rent Allowance in the past, in particular, stationed at Aurangabad referred to in the impugned decision. In addition, the learned A.G.P. on instructions states that in all cases where such benefit has been wrongly passed on, the Department has decided to resort to recovery procedure against the concerned employees. 6. The respondent who appears in-person, submits that she has joined the post of Resident Assistant Superintendent on the basis of oral assurance given to her that she would continue to get House Rent Allowance, coupled with the fact that because of accepting the said appointment, she had to abandon her personal residence in the City which remained vacant and 6 4093.11 unused. Further, the nature of appointment of Resident Assistant Superintendent is such that personal presence of the incumbent in the Hostel is essential, for which reason, the respondent had no choice but to utilise the accommodation available in the hostel earmarked for Resident Assistant Superintendent. For all these reasons, it is contended that the respondent cannot and ought not to be denied benefit of House Rent Allowance especially in absence of a clear policy of the Government in that behalf. The respondent also contended that at any rate, she was entitled for special pay for the nature of her job which was not limited to working hours. Even this aspect ought to be borne in mind while considering the claim of the respondent. 7. Having considered the rival submissions, we have no hesitation in taking the view that the entitlement for House Rent Allowance is not a matter of right. It is dependent on the terms and conditions of appointment. If the concerned employee is eligible for rent-free quarters as a condition of service, becomes entitled for House Rent Allowance if he does not reside in the Government owned/hired accommodation. The fact that the respondent was provided Government accommodation in the hostel where she was appointed as Resident Assistant Superintendent is not in dispute at all. 7 4093.11 Keeping that factual position in mind, we may have to consider the claim of the respondent. As per Government Resolution dated 25th April, 1998, it is amply clear that House Rent Allowance is payable to the employees other than those residing in Government owned/hired accommodation. If the employee is already occupying Government owned/hired accommodation, the question of receiving House Rent Allowance does not arise, as that allowance is paid in lieu of rent-free quarter which may be one of the condition of service. We may usefully refer to clauses 4 and 5 of the aforesaid Government Resolution which reads thus: “4. House Rent Allowance at the above rates shall be payable to all employees (other than those residing in Government owned/hired accommodation) without requiring them to produce rent receipts. These employees shall, however, be required to furnish a certificate (As in Annexure II) to the effect that they are incurring some expenditure on rent/contributing towards rent. House Rent Allowance shall also be paid to Government employees living in `their’ own houses, subject to their furnishing a certificate as in Annexure II accompanying this resolution. These certificates shall be produced by the employees in the month of April each year or whenever there is a change in the contents of the certificate. All other conditions at present applicable for grant of House Rent Allowance shall continue to apply. The condition prescribed in respect of employees in the rural areas that of residing at the place of duty for eligibility of House Rent Allowance shall however, be dispensed with. 5. According to the order cited at (ii) above, Government servants, who are eligible for rent-free quarters as a condition of service and to whom quarters are not provided are eligible to claim House Rent Allowance in lieu of rent-free quarters. Such Government servants will be eligible to draw House Rent Allowance in lieu of rent-free quarters on the basis of revised rates of house rent allowance plus 10 per cent of their existing pay and compensatory local allowance, subject to fulfillment of conditions prescribed for claiming house rent allowance, in lieu of rent- free quarters.” (emphasis supplied) 8 4093.11 8. From the plain language of the aforesaid clauses, it is not possible to countenance the claim of the respondent that she should continue to get House Rent Allowance after she was appointed as Resident Assistant Superintendent and also provided with the Government accommodation in the hostel. The fortuitous situation that the respondent had to keep her personal accommodation vacant, cannot be the basis to grant House Rent Allowance. That allowance is and can be granted only in lieu of rent-free accommodation. 9. In our opinion, the Tribunal completely misdirected itself in proceeding on the basis that there is no clear policy of the Government. Inasmuch as the policy of the Government is reflected in the Government Resolution dated 25th April, 1988. The fact that no separate provision is made regarding the category of employees, who, for the nature of their duty are required to occupy the Government accommodation, irrespective of the fact that he/she may possess a residential premises of her own in the same city which may have to be kept unused or the fact that the employee is given additional charge, cannot be the determinating factor. However, as per the extant policy, the determinating factor to receive the House Rent 9 4093.11 Allowance would be that the employee was not occupying Government owned/hired accommodation as his residence during the relevant period although he was entitled to do so as per the conditions of his service. The Tribunal was also impressed by the fact that similarly placed employees working with other Departments/Institutions of Government such as Government Arts and Science College, Aurangabad and Institute of Aurangabad were being paid House Rent Allowance inspite of the fact that they were occupying Government accommodation while discharging their duty as Resident Assistant Superintendent. It is well established position that if some benefit is wrongly extended to some of the employees, cannot be the basis to assert that the same benefit should be passed on, as a matter of right. The right to receive House Rent Allowance either emanates from the service condition or the statutory rules or the administrative instructions reflecting the policy of Government. In any case, it has now come on record that the Department has initiated action for recovery of the amount wrongly paid to other similarly placed employees who were not entitled to received House Rent Allowance. Accordingly, the above said opinion of the Tribunal will have to be reversed and in which case, the relief claimed by the respondent in terms of prayer clauses (a) and (b) of the Original Application will have to be rejected. 10 4093.11 10. There is, however, one aspect which we may consider on the basis of oral submissions made across the Bar by the respondent. In that, the respondent had also claimed relief of grant of special pay as per Government Rules for the additional charge held by her of Resident Assistant Superintendent. However, the Tribunal has not adverted to this aspect at all. We are conscious that the respondent has not filed a formal Petition to question that error committed by the Tribunal. Nevertheless, we would entertain the oral prayer for the respondent to consider that grievance while deciding this Writ Petition filed by the State, which is being disposed of at the admission stage on the first date of hearing. We intend to do so as it would be open to the respondent to file a separate Petition in which this grievance can be taken forward. Accordingly, we would partly allow this Writ Petition in the interest of justice by setting aside the impugned decision and restoring the Original Application to the file of the Maharashtra Administrative Tribunal for considering prayer clause (c) of the Application on its own merits in accordance with law. All questions in that behalf are left open. 11. At this stage, respondent contends that the Tribunal ought to have 11 4093.11 taken note of the fact that her appointment order did not mention any condition about payment of House Rent Allowance. The fact that the appointment order is silent in that behalf would in fact disentitle the respondent to receive House Rent Allowance at all. The employee is eligible to get House Rent Allowance only as a service condition in lieu of rent-free Government quarters/accommodation. If that is not the service condition, the question of payment of House Rent Allowance would not arise. In any case, for the reasons already recorded, we do not find merits in the claim as prayed in terms of prayer clauses (a) and (b) of the Original Application. 12. We hope and trust that the Secretary of the Finance and General Administration Department shall issue directions to all concerned to recover House Rent Allowance from the similarly placed employees who have been wrongly paid the same in the past, if already not done, and take those instructions to its logical end. 13. Petition disposed of accordingly. (R.Y.GANOO, J.) (A.M.KHANWILKAR, J.)