Rule 5 (c) (iii) of HRA Rules restricts a Government servant to claim HRA if their spouse is allotted accommodation by an Autonomous Public Undertaking: High Court of Delhi

J 1 IN THE HIGH COURT OF DELHI AT NEW DELHI W.P.(C) 10992 2021 & CM No. 33854 2021 Reserved on: 28.09.2021 Decided on: 19.01.2022 JAYABRATA BOSE Through: Mr. A. K. Srivastava Adv. ..... Petitioner UNION OF INDIA & ANR. ..... Respondents Through: Mr. Subhra Prashar Advocate for HON BLE MR. JUSTICE RAJIV SHAKDHER HON BLE MR. JUSTICE TALWANT SINGH TALWANT SINGH J.: The petitioner has challenged the final order dated 03.09.2021 passed in OA No. 862 2019 by the learned Central Administrative Tribunal hereinafter referred to „the CAT‟) Principal Bench New Delhi. In brief the case of the petitioner is that he was a Group „A‟ Government officer posted in Delhi and his wife who is an employee of Indira Gandhi National Open Universityalso posted at Delhi and she was allotted a residential accommodation since July 2003. Petitioner was residing with his wife but on 15.05.2007 he informed his department that he had shifted to his own flat at Shipra Sun City Indirapuram Ghaziabad but his wife continued to stay at her official accommodation in IGNOU Campus due to her work related exigencies. The petitioner was granted House Rent Allowancew.e.f. May 2007. On 03.03.2016 when petitioner was posted in Delhi Milk Scheme a W.P(C) 10992 2021 Pg. complaint was made regarding HRA being claimed by the petitioner. The authorities then decided that petitioner is not entitled to HRA as per para 5 c) of HRA Rules as his wife was employed in IGNOU. Further payment of HRA was stopped and recovery of the already disbursed amount of Rs.13 76 697 for the period from May 2007 to March 2017 was ordered to be made. The petitioner then challenged the aforesaid order being arbitrary illegal discriminatory and against the spirit of Article 14 of the Constitution of India before CAT by filing OA No. 862 2019. Prior thereto the petitioner had submitted a representation to his department on 11.04.2017 it was rejected on 14.02.2019. During the pendency of the OA filed by the petitioner recovery was stayed vide order dated 25.03.2019. The petitioner retired from service on 31.01.2021. On 03.02.2021 an amount of Rs.13 76 697 was withheld by respondents out of his retiral benefits. The OA filed by the petitioner was dismissed on 03.09.2021. Hence the present petition was filed. 6. We have heard arguments for admission of the writ petition on 28.09.2021 and our considered view is as under. The CAT while dismissing the OA filed by the petitioner observed as under: “9.…The main contention of the applicant has been that the residential accommodation provided to his spouse in IGNOU Campus cannot be considered as Government accommodation as the Universities cannot be considered as Government Department or Government bodies. In support of his claim he has relied upon the aforesaid judgments of the Hon‟ble Karnataka High Court and this Tribunal. The fact however remains that IGNOU is an autonomous body under the Central Government Ministry of Human Resource Development and is fully funded by budgetary support. It is also a fact that this aspect has also been clarified in OM dated 03.04.2017 by W.P(C) 10992 2021 Pg. Department of Expenditure {E.II Division} vide ID No.2 2 2016 E.IIdated 15.09.2016 as under: Cost) would qualify as “It is clarified that as both the officer & his wife are posted at Delhi and his wife has been allotted residential accommodation at the same station by IGNOU which is an Autonomous Body under the administrative control of Ministry of Human Resource Development and is funded by the Central Government it would imply that accommodation provided to spouse of notwithstanding the judgments of CAT Mumbai Bench the reply dated 07.03.2016 30.03.2016 furnished by the officer in response to the clarification the same were sought by DMS DoAHD&F since applicable to only the applicants in those OAs. Therefore HRA to the officer becomes inadmissible from the date his spouse has been provided accommodation by IGNOU even though the officer may desire to live separately at Ghaziabad” 10. With this clarification the claim of the applicant that the rules of Central Government accommodation are not applicable to the accommodation provided by IGNOU is not tenable. At the same time it is also a fact that the applicant was aware that he was staying with his wife who was allotted Government accommodation since 2003. If it is his contention that the accommodation provided by IGNOU is not at par with the Central Government accommodation then he should have claimed HRA even for the period from 2003 to 2007. The very fact that he did not claim the HRA during this period clearly accommodation provided to his wife he is not entitled for HRA. Therefore as per his own submission by shifting out from Government accommodation allotted to his wife at IGNOU Campus and to stay in his own flat at Indirapuram Ghaziabad he cannot claim HRA as both the husband and wife are posted in Delhi and Government accommodation having been allotted to one of them the same does not entitle the other one to claim the same. The contention that this excess payment of HRA has been made by the Government on that he was well aware that by staying W.P(C) 10992 2021 Pg. its own accord and therefore he is not responsible for the excess payment made to him cannot be sustained as he has himself in the year 2007 advised the department that for logistical and personal reasons he will be staying in his own flat and therefore he should be given HRA from 2007. This claim of the applicant is therefore self contradictory to each other. It is also not his case that since he has retired therefore no recoveries should be made for the excess payment. This was clearly stated to him vide OM dated 03.04.2017 much before his retirement to which he has also made representation to the Competent Authority. The same was rejected vide OM impugned order dated 14.02.2019. It is also a fact that as far as the judgment of Hon‟ble Apex Court in Rafiq Masih’s case is concerned the same has been dealt with in DoP&T OM dated 02.03.2016 and guidelines have been provided for processing such cases. It is clearly stated that these cases should also be referred to Department of Expenditure. In the applicant‟s case his representation has been considered by the Department of Expenditure and rejected. It is thus evident that the applicant has knowingly claimed inadmissible HRA for the period May 2007 to March 2017. This excess payment has been worked out and is to be recovered from the applicant in terms of OM dated 03.04.2017 and impugned order dated 14.02.2019. The applicant being a Senior Group „A‟ Officer was expected to follow the extant rules and regulations and be aware of the wilful inadmissible claim of HRA. 11. In view of the above I do not find any infirmity or illegality in the impugned orders dated 03.04.2017 and 14.02.2019 passed by the respondents towards recovery of excess payment of HRA. The OA is accordingly dismissed. The interim relief granted vide order dated 25.03.2019 also stands vacated. Pending MA also stands disposed of. There shall be no order as to costs”. As noted above the main contention of the petitioner is that IGNOU is a university and the accommodation provided to his wife is not covered under the definition of government accommodation as this is neither a government department nor a government body. W.P(C) 10992 2021 Pg. 9. The petitioner was a member of Indian Costs and Accounts Service. He was well aware about the Government rules and Office Memorandums issued from time to time. The applicable rule in this regard is reproduced A Government servant shall not be entitled to House Rent “Conditions for Drawl of House Rent Allowance he shares Government accommodation allotted rent free 5. … Allowance If to another Government servant or he she resides in accommodation allotted to his her parents son daughter by the Central Government State Government an Autonomous Public Undertaking or semi Government Organization such as a Municipality Port Trust Nationalized Banks Life Insurance Corporation of India etc. iii) his wife her husband has been allotted accommodation at the same station by the Central Government State Government an Autonomous Public Undertaking semi Government Organization such as Municipality Port Trust etc. whether he she resides that accommodation or he she resides separately in accommodation rented by him her.” 10. The case of the petitioner falls under Rule 5(iii) of HRA Rules. It has been time and again reiterated by the learned counsel for the petitioner that the University i.e. IGNOU is neither the department of the Central Government nor State Government nor an autonomous body undertaking nor a semi government organization such as Municipality Port Trust etc. and as such even if his wife lives in the accommodation provided by IGNOU he is still entitled to HRA if he lives in his own house. 11. The CAT has rightly noted is believed accommodation allotted to the wife of the petitioner is not covered under Rule 5and even if the petitioner resides with his wife he was still entitled to HRA then why he had not claimed the HRA for the period W.P(C) 10992 2021 Pg. during which he was residing with his wife from July 2003 to April 2007 in the official accommodation allotted to her. The act of the petitioner of not claiming the HRA during the said period clearly establishes that he was well aware that if he stays in the accommodation allotted by IGNOU to his wife he could not have claimed HRA. The petitioner had written a letter dated 15.05.2007 to the Secretary Tariff Commission where he was posted at the relevant time by which he had informed his decision to live separately from his wife at his own house at Shipra Sun City Indirapuram Ghaziabad. The said letter is reproduced hereunder: The Secretary Tariff Commission Lok Nayak Bhawan New Delhi 110003. Sub: Granting of House Rent Allowance Request for Sir This is to inform that I have shifted to my own house no.8 12 KAD at Shipra Sun City Indirapuram Ghaziabad for which regular deduction is being made from the salary towards HRA. Further it is informed that my wife is an employee of the IGNOU a university established under an Act of Parliament. Her service is governed by the rules framed in possession of She accommodation provided by the IGNOU in the University Campus at Maidan Garhi New Delhi 110068. She is not drawing HRA from IGNOU. It is needless to mention that being in distant mode of education her work profile comprises activities such as Tele Conferencing Phone in radio sessions etc. Schedule of such activities at times extends beyond normal working hours 10992 2021 Pg. Therefore she will continue hours is different from a far off place like Indirapuram accommodation provided by the IGNOU at Maidan Garhi New Delhi 110068 while I shall stay at my own house at Shipra Sun City Indirapuram Ghaziabad. granted House Rent Allowance. In view of the above perspective I may kindly be to occupy Yours faithfully. J. Bose) Deputy Director10992 2021 Pg. mentioning therein that the expression “autonomous bodies” has not been explicitly mentioned in Rule 5which is the governing condition for granting HRA in the case of a couple. As per him the employees working in autonomous organization are not Central Government employees as they are not eligible for Central Government accommodation and in the decision of the Department of Expenditure dated 15.09.2016 the scope of Rule 5 c)(iii) has been expanded and it smacks of discrimination and arbitrariness towards the petitioner. 14. This is not a case where the petitioner can claim that he was an innocent victim of the circumstances rather it is a case where the petitioner himself has created the circumstances which led his employer to believe that he was entitled to claim HRA and later on when it was realized that the petitioner was not entitled to claim the same the employer had no other option but to seek guidance from the Department of Expenditure and as per the advice tendered by Department of Expenditure further payment of HRA was disallowed w.e.f. April 2017 and earlier amount was ordered to be In our view the Tribunal has rightly held that IGNOU is a Central Government autonomous body under the administrative control of Ministry of Human Resource Development and it is funded through budgetary support and being a Central Government Autonomous Body it is covered under para 5 (iii) of the conditions for granting HRA. One has to take note of the word “etc.” used after “Port Trust” which implies that the list of organisations mentioned in para 5 (iii) is not exhaustive and all other Institutions PSUs and Autonomous Bodies are also covered under the ambit of the Rule. W.P(C) 10992 2021 Pg. 16. The OM dated 03.04.2017 quotes the earlier advice given by the Department of Expenditure regarding admissibility of the HRA and it was mentioned as under: “It is clarified that as both the officer & his wife are posted at Delhiand his wife has been allotted residential accommodation at the same station by IGNOU which is an Autonomous Body under the administrative control of Ministry of Human Resource Development and is funded by the Central Government it would imply that accommodation provided to spouse of Director would qualify as Government Accommodation for the purpose of 5(c)(iii) notwithstanding the judgments of CAT Mumbai Bench quoted in the reply dated 07.03.2016 30.03.2016 furnished by the officer in response to the clarification sought by DMS DoAHD&F since the same were applicable to only the applicants in those OAs. Therefore HRA to the officer becomes inadmissible from the date his spouse has been provided accommodation by IGNOU even though the officer may desire to live separately at 17. The petitioner has placed reliance on the judgment of CAT Mumbai Branch dated 28.10.2010 in OA No. 311 2010 titled Dr. Vrinda V. Khole vs. Indian Council of Medical Research. In the said judgment the CAT has held that in earlier case of Registrar of Mumbai University the department had complied with the judgment of the CAT dated 26.10.1994 passed in OA No. 822 1991 titled Sharda Gajanan Rajarshi vs. Union of India & Others. Hence in the case in hand where husband of the petitioner was appointed Vice Chancellor of Mumbai University the petitioner was still entitled to HRA. The Department of Expenditure was fully conscious of the said judgments and it was held that the said judgments were applicable only to the applicants in the said OAs. Hence in the view of the Department of Expenditure the said judgments were not the judgments in rem rather they W.P(C) 10992 2021 Pg. were confined to the cases in hand and were delivered in the facts and circumstances of the respective cases. 18. The petitioner has also relied upon judgment of High Court of Karnataka dated 08.11.2010 in W.P(C)17926 2003 titled ESIC & Anr. vs. Sri B.D. Patted. In the said judgment it was held that since HRA was paid for the last eight years and it was not a case of any misrepresentation practiced by government employee on the department coupled with the fact that he had retired from service it would be too harsh to take a view to recover the said amount from him. In our view the said judgment was also passed in the peculiar facts and circumstances of the case. The ratio of the judgment is not applicable to the facts of the case as in the present case it was decided to recover the amount from the petitioner when he was still in service and his further claim w.e.f. April 2017 for HRA was duly rejected. In the counter reply filed by the respondent before CAT in the present case it was mentioned the petitioner was asked to deposit Rs.13 76 697 latest by 15.03.2019 when he was still in service after due consideration of the representation submitted by him. The applicant was fully aware of the rule position. It was the applicant petitioner who represented to the employer at the relevant time i.e. Tariff Commission that he was entitled to HRA although the same was not admissible to him as he was living in an accommodation allotted to his wife by IGNOU. It is further submitted that vide letter dated 03.06.2016 the Tariff Commission had informed that the case of releasing the HRA to the petitioner was neither processed nor examined in the light of para 5of HRA Rules and no formal order was issued for releasing the HRA to the petitioner. The petitioner had received undue benefit in the form of HRA till W.P(C) 10992 2021 Pg. 1 March 2017. The matter was examined in detail by Department of Expenditure with regard to the request of the petitioner seeking waiver of recovery of excess amount of Rs.13 76 697 however the competent authority did not allow such waiver of recovery. It is also submitted that IGNOU is a central government autonomous body which was set up by Ministry of HRD and it is receiving funds through budgetary support. As such it is covered in para 5of conditions for grant of HRA. 22. The petitioner applicant had filed rejoinder before CAT in which he has placed reliance on the judgment of Rajasthan High Court dated 16.05.2017 in W.P.(C) 2656 2001 tilted UOI vs. Dr. UB Mathur in which the amount involved was only Rs.55 000 and there was earlier judgment of CAT of Jaipur Bench which was not challenged by the Central Government. Hence on that ground the Rajasthan High Court refused to entertain the challenge to a decision of CAT Jaipur Bench where the applicant was residing in accommodation provided by University of Rajasthan. In our view the said case was also decided in its own peculiar facts and moreover the status of University of Rajasthan is not known as to whether it was receiving budgetary support from the government or it was established by State Government itself. Reliance is also placed by the petitioner on the judgment dated 15.02.2019 in OA 2916 2016 tilted Dr. Vijay Pratap Singh vs. Union of India decided by CAT Principal Bench New Delhi. The main controversy in the said case was that when the husband and the wife were posted at different stations then whether both will be entitled to draw HRA even if living in the same station or not. The ratio of the said judgment is not applicable to the facts of the case as the petitioner lived with his wife and both were posted at the same station and not at different stations as was the case in the matter of Dr. Vijay Pratap SinghW.P(C) 10992 2021 Pg. 1 23. The petitioner has also relied upon a judgment of this Court dated 27.11.2018 in LPA 246 2018 titled T.N. Veeraraghavan vs. Union of India and Anr. where the challenge was to an order of learned Single Judge who had dismissed the writ petition and allowed the government departments to recover the excess amount allegedly paid to the appellants on account of “stagnation increment” when they were in service. In the said case the Hon‟ble Division Bench of this court had relied upon the judgment of Hon‟ble Supreme court in the matter of State of Punjab & Ors. vs. Rafiq Masih etc. in Civil Appeal No. 11527 2014 decided on 18.12.2014. The Hon‟ble Supreme Court has summarised its detail judgment in paragraph 12 which is reproduced hereunder: “12. It is not possible to postulate all situations of hardship which would govern employees on the issue of recovery where payments have mistakenly been made by the employer in excess of their entitlement. Be that as it may based on the decisions referred to herein above we may as a ready reference summarise the following few situations wherein recoveries by the employers would be impermissible in law: from employees when Recovery from employees belonging to Class III and Class IV service Recovery from retired employees or employees who are due to retire within one year of the order of the excess iii) Recovery payment has been made for a period in excess of five years before the order of recovery is issued. in cases where an employee has iv) Recovery wrongfully been required to discharge duties of a higher post and has been paid accordingly even though he should have rightfully been required to work against an interior post. In any other case where the Court arrives at the conclusion that recovery if made from the employee would be iniquitous or harsh or arbitrary to such an W.P(C) 10992 2021 Pg. 1 extent as would far outweigh the equitable balance of the employer‟s right to recover.” 25. With due respect the case of the petitioner does not fall in any of the classes mentioned in paragraph 12 in the matter of Rafiq Masih 10992 2021 Pg. 1 

Summary: According to Rule 5 (c) (iii) of HRA Rules, Government servant shall not be entitled to House Rent Allowance if his wife/her husband has been allotted accommodation at the same station by the Central Government, State Government, an Autonomous Public Undertaking or semi-Government Organization such as Municipality, Port Trust, etc. whether he/she resides in that accommodation or he/she resides separately in accommodation rented by him/her. These were stated by High of Delhi, consisting Justice Rajiv Shakdher in the case of Jayabrata Bose vs. Union of India &amp; Anr. [W.P.(C) 10992/2021] on 19.01.2022. The facts of the case are that the petitioner was a Group A Government officer posted in Delhi and his wife who is an employee of Indira Gandhi National Open University (IGNOU) was also posted at Delhi and she was allotted a residential accommodation since July, 2003. Petitioner was residing with his wife but on 15.05.2007, he informed his department that he had shifted to his own flat at Shipra Sun City, Indirapuram, Ghaziabad but his wife continued to stay at her official accommodation in IGNOU Campus due to her work-related exigencies. The petitioner was granted House Rent Allowance (HRA) w.e.f. May 2007. On 03.03.2016, when petitioner was posted in Delhi Milk Scheme, a complaint was made regarding HRA being claimed by the petitioner. The authorities then decided that petitioner is not entitled to HRA as per para 5 (c) (iii) of HRA Rules, as his wife was employed in IGNOU. Further, payment of HRA was stopped and recovery of the already disbursed amount of Rs.13,76,697 for the period from May, 2007 to March, 2017 was ordered to be made. The petitioner, then, challenged the aforesaid order being arbitrary, illegal, discriminatory and against the spirit of Article 14 of the Constitution of India. The Counsel for the petitioner contended that IGNOU is a university and the accommodation provided to his wife is not covered under the definition of government accommodation as this is neither a government department nor a government body and even if his wife lives in the accommodation provided by IGNOU, he is still entitled to HRA if he lives in his own house. Accommodation allotted to the wife of the petitioner is not covered under Rule 5 (c)(iii). It was further submitted since HRA was paid for the last eight years and it was not a case of any misrepresentation practiced by government employee on the department, it would be too harsh to take a view to recover the said amount from him. The Counsel for the respondent contended that the applicant was fully aware of the rule position. It was the applicant/petitioner who represented to the employer at the relevant time i.e., Tariff Commission that he was entitled to HRA although the same was not admissible to him as he was living in an accommodation allotted to his wife by IGNOU. It was further submitted that the Tariff Commission had informed that the case of releasing the HRA to the petitioner was neither processed nor examined in the light of para 5 (c)(iii) of HRA Rules and no formal order was issued for releasing the HRA to the petitioner. The petitioner had received undue benefit in the form of HRA till March, 2017. It was also submitted by the counsel that IGNOU is a central government autonomous body, which was set up by Ministry of HRD and it is receiving funds through budgetary support, therefore, it is covered in para 5 (c)(iii) of conditions for grant of HRA. The High Court of Delhi held that since the petitioner does not belong to Group C or Group D service and he is part of Group A service of the Government and it is not a case where the department on its own had paid the amount under some misconception. Whereas, this is a case where petitioner himself had induced the department to make him payments of HRA, which resulted in the government department to release him HRA w.e.f. May, 2007. The order passed by the department is neither harsh nor arbitrary and it does not trump the employer’s right to recover the money. The Court held that IGNOU is a Central Government autonomous body under the administrative control of Ministry of Human Resource Development and it is funded through budgetary support and being a Central Government Autonomous Body, it is covered under para 5 (c) (iii) of the conditions for granting HRA. The Court therefore, did not find any illegality or infirmity in the order passed by learned CAT. The writ petition was accordingly dismissed.