Birendramohan Panda vs Union Of India & Ors.

That, That, the applicant while was working as Assistant Accounts Officer in CBDT, transferred to PFMS as inter Ministry transfer in the year, 2017. That, during continuance of the applicant as Assistant Accounts Officer in PFMS, promoted to the post of Accounts Officer by way of selection. At the time of selection the applicant had submitted option for his posting on promotion as Accounts Officer as per the guideline prevailing in the Department. In the option form the applicant has submitted Kolkata as option no.1, Vizag as no.2 and Raipur as no.3, as per the vacancy position furnished by the Department. The applicant in the option form at Srl.No.10 has specifically mentioned his first choice is Bhubaneswar, if vacancy arises. That, the Senior Accounts Officer, office of CGA, New Delhi vide Office order No.33/ 2018 dtd.01.10.2018 has issued the order of promotion in respect of the Applicant to the post of Accounts Officer, along with the order of promotion the place of posting was fixed at Kolkata under CBDT.

That, vide Order No.50/ 2018 dtd.07.12.2018 the place of posting of the applicant on promotion was changed from Kolkata to PFMS, Daman against the existing leave vacancy vice Mrs. Urvashi Rana, AO. After order of promotion the applicant was relieved from Bhubaneswar office vide order dtd.28.12.2018 and joined in the promotional post at Daman on 31.12.2018.That, the applicant while continuing in the promotional post at Daman, the Respondent No.5 has issued office memorandum dtd. 18.01.2019. For better appreciation of this Hon'ble Tribunal the contention of office memorandum is quoted below:

That, Govt. of India Ministry of Finance Department of Expenditure vide O.M. dtd.30.12.2022 has issued Compendium of Instructions regarding grant of House Rent Allowance to central Government employees regarding. For better appreciation Para-3.1 & 3.2 of the memorandum are quoted below:-

That, the applicant on 08.05.2023 has submitted application to Respondent No.4 for payment of differential HRA by granting HRA @Bhubaneswar instead of Daman for the period from 01.01.2019 to 31.03.2023. In the representation the applicant has quoted the rule relating to grant of HRA to Central Govt. Employees. The Respondent No.4 after receiving application of the applicant dtd.08.05.2023 has forwarded the same to the PFMS HQ by mail & speed post on 18.05.2023, information and necessary action.

That, the Respondent No.3 has disposed of the representation in conforming the E-office computer no. E-13651,PF-33001/151/2023-PFMS, dtd.09.08.2023 .While rejecting the request for grant of HRA at Bhubaneswar rate, the authority has relied upon DoE O.M., dtd.27.11.1965, but the order of rejection of Respondent No.3 not communicated to this applicant. The applicant after receiving decision dtd.29.08.2023, asked for the authority/rule/guideline in denying HRA as applicable to place of duty.

That, the applicant after receiving decision dtd.29.08.2023 has submitted an exhaustive representation to Respondent No.2 with a request to re-examine the issue for grant of HRA at Bhubaneswar rate. In the representation the applicant has brought to the notice of Respondent No.2 that in the O.M., dtd.27.11.1965 there is no whisper regarding drawl of less HRA among two stations on own request attachment. It is pleaded that his claim for the period from 01.01.2029 to 31.03.2023, where as O.M, dtd.30.12.2022 issued by DoE which will govern his claim. The representation dtd.08.12.2023 of the applicant has duly forwarded to Respondent No.2 by Sr. Accounts Officer, PPC Section office of Pr. Chief Controller of Accounts, CBDT, New Delhi along with letter dtd. 14.02.2024 with a request to provide guide lines regarding payment of different amounts of HRA.

That, the Respondent No.5 vide O.M., dtd.08.03.2024 has disposed of the representation of the applicant and rejected the request regarding grant of HRA as per rates applicable to place of duty. The Respondent No.5 has reiterated the ground taken in the decision dtd.29.08.2023 and opine that the attachment of the applicant with SPMU, Odisha on his own request and this doesn't tantamount to transfer in public interest.

That, the Govt. of India, Ministry of Finance vide office memorandum dtd.27.11.1965 has issued the guideline regarding grant of compensatory (city) allowance and house rent allowance. For better appreciation of this Hon'ble Tribunal Para-3.(b)(i) & (ii) is quoted below:-

That, the applicant being aggrieved with O.M., dtd.08.03.2024 without finding any other alternative remedy has constrained to approach this Hon'ble Tribunal by filing this Original Application U/S. 19 of the A.T. Act, 1985 on the following grounds amongst others.

That as per this office OM dated 18.01.2019, keeping in view his representation dated 05.10.2018, Sh. B.M. Panda applicant) was initially temporarily attached at SPMU, Odisha, Bhubaneswar up to 30.06.2019 whereas his regular posting was at SPMU, Daman & Diu. That as per the above attachment Order dated 18.01.2019, the applicant was asked to look after the work of SPMU, Daman & Diu where there were 8 schemes under PFMS during attachment with SPMU Odisha. In this connection, it is pertinent to mention that he was holding the main charge of SPMU, Daman & Diu not of SPMU, Odisha during the period from 01.01.2019 to 31.03.2023.

That basing on his request vide his application dated 05.10.2018, the applicant was temporarily attached with SPMU, Odisha, Bhubaneswar. Hence, the temporary attachment of the applicant was not in public interest. It was not his regular posting at SPMU Odisha, Bhubaneswar. Accordingly, the applicant was paid HRA as per DoE order dated 27.11.1965

Some details pertaining to his temporary attachment at SPMU Odisha, Bhubaneswar are given below:

That the applicant on his promotion as Accounts Officer was allocated in CBDT, Kolkata vide CGA's order dated 01.10.2018. He submitted his representation dated 05.10.2018 and requested to post him in Bhubaneswar on his promotion as Accounts Officer as his wife was working in State Government and his son was studying in class X. Further, he also requested to reallocate him at Bhubaneswar in PFMS against any PFMS post of Accounts Officer so that his experience and knowledge in PFMS could be utilized.

That the applicant was relocated at PFMS Daman & Diu on promotion as Accounts Officer vide o/o CGA's order dated 07.12.2018 due to non-availability of vacancy in PFMS, Bhubaneshwar.

That the applicant was initially attached temporarily with SPMO, Odisha up to 30.06.2019 with the direction that he shall also continue to look after the work of SPMU Daman & Diu vide Sr. Accounts Officer, PFMS, New Delhi's OM dated 18.01.2019 on short terms basis. Thereafter, the temporary attachment of the applicant was extended by o/o PFMS, New Delhi for one more year i.e. up to 30.06.2020 vide Sr. Accounts Officer, PFMS' OM dated 23.09.2019.

That the Sr. AO (Adm.) PFMS, SD, Odisha vide his letter dated 10.07.2020 requested O/o CGA to extend the attachment of Sh. B.M. Panda, AO with SD, Odisha for one more year i.e. up to 30.06.2021. The Sr. Accounts Officer, PFMS, New Delhi vide O.M. dated 12.03.2021 had withdrawn the order of his temporary attachment at PFMS, SD, Odisha and directed the officer to report at PFMS, SD, Daman & Diu at the earliest.

That thereafter the applicant filed an OA No. 148 of 2021 in CAT, Cuttack Bench challenging the aforesaid Order dated 12.03.2021 issued by the Sr.AO, O/o PFMS, New Delhi. The said OA was disposed of by the Hon'ble Tribunal with the direction to the applicant to file a comprehensive representation and the applicant shall not be disturbed from his present place of posting till disposal of the comprehensive representation vide Judgment dated 26.03.2021.

That in compliance of direction of the Hon'ble Tribunal Judgment dated 26.03.2021, the representation dated 16.04.2021 of the applicant was considered minutely vide which he had requested to consider his appeal to allow him to continue in his present place of working i.e. Bhubaneswar till completion of his son's 12th board examination by attachment with post or work from home and after/before permanently post him against the vacancy to be created by the superannuation of Sh. Santanu Kumar Das, Sr. AO on 30.04.2022 directly or on rotation basis in PFMS.

That after going through his representation, the Competent authority did not approve the further extension of temporary attachment of the applicant and the temporary attachment was withdrawn with direction to report for duty at PFMS, Daman & Diu at the earliest as his further extension on attachment in PFMS, Bhubaneshwar will cause the work of PFMS office at SD Daman where he was initially posted, to suffer.

In pursuance of O/o CGA Office Memorandum dated 17.03.2023, the applicant was relieved from PFMS SD Odisha, Bhubaneswar on 06.04.2023 with the direction to report for duty to the Office of the ZAO, CBDT, Bhubaneswar.

That it is submitted that the applicant was attached temporarily at PFMS SD Odisha as per his request whereas he was holding the main charge of PFMS SD Daman & Diu. As per the Para 3 (xi) of the transfer policy dated 30.10.2015 (Annexure-R-13), on completion of tenure in a Ministry/Station officers are liable for transfer either within the same station or outside depending on feasibility of swapping positions amongst serving officers subject to administrative convenience, the request of the application for transfer at Bhubaneswar will be considered as per transfer policy subject to availability of vacancies / seniority. The matter regarding payment of HRA during temporary transfer is governed by DoE OM dated 27.11.1965. As per para, 4(x) of Department of Expenditure, OM dated 27.11.1965 (refer Annexure-R-3), the House Rent Allowance will not exceed the rate at which it was being drawn by him at old station or the maximum amount that would have been admissible to him at the new station, had he taken a house on rent there, whichever is less. Hence the action taken by this office vide OM dated 08/11.03.2024 is legal and valid.

That Sh. Birendra Mohan Panda on his promotion as Accounts Officer was allocated in CBDT. Kolkata vide o/o CGA Order dated 01.10.2018 (refer Annexure-R-4). He submitted his representation dated 05.10.2018 (refer Annexure-R-2) and requested to post him in Bhubaneswar on his promotion as Accounts Officer as his wife was working in State Government and his son was studying in class X. Further, he also requested to re-allocate him at Bhubaneswar in PFMS against any PFMS post of Accounts Officer so that his experience and knowledge in PFMS can be utilized. He was re-allocated at PFMS Daman 7 Diu on promotion as Accounts Officer vide o/o CGA Order dated 07.12.2018 (refer Annexure-R-5) due to non-availability of vacancy in PFMS Bhubaneswar.

Keeping in view his representation dated 05.10.2018, vide PFMS Har Office Memorandum dated 18.01.2019 (refer Annexure-R-1), Sh. Birendra Mohan Panda was posted on attachment with SPMU, Odisha up to 30.06.2019 on the condition that he shall also continue to look after the work of SPMU24 Daman & Diu. Further, his temporary attachment was extended up to 30.06.2020 vide PFMS Hqr. Office Memorandum dated 23.09.2019 (refer Annexure-R-6) on the condition that along with his attachment with SPMU Odisha, he shall also continue to look after the work of SPMU. Daman & Diu. As per para 3 (xi) of the Transfer Policy dated 30.10.2015 (refer Annexure-R-13), on completion of tenure in a Ministry/Station, officers are liable for transfer either within the same station or outside depending on feasibility of swapping positions amongst serving officers subject to administrative convenience. It is pertinent to mention that Government servants are imparted training of various modules of PFMS etc. for capacity building of the officers, hence it is not an obligation on the Government to use the experience gained out of various training programmes. Hence, in this context, it is to state that keeping in view his request vide representation dated 05.10.2018, Sh. Birendra Mohan Panda was attached temporarily with SPMU Odisha. Accordingly, as per para, 4 (x) of Department of Expenditure, OM dated 27.11.1965, he was paid HRA as admissible during temporary transfer.

That as per PFMS HQ letter dated 12.03.2021 (refer Annexure-R-8), the temporary attachment in r/o Sh. Birendra Mohan Panda was cancelled and he was directed to report at PFMS State Directorate Daman & Diu at the earliest.

That as per para, 4 (x) of Department of/Expenditure, OM dated 27.11.1965, Sh. Birendra Mohan Panda was paid HRA as admissible during temporary transfer. As per PFMS HQ letter Office Memorandum dated 08.03.2024 (refer Annexure-R-14), Sh. B.M. Panda was informed that Sh. B.M. Panda was attached at PFMS State Directorate Odisha on his own request and this does not tantamount to transfer in public interest. Hence, he was informed that HRA as per place of duty in case of temporary transfer/attachment is not admissible as per rules.

That it is submitted that the matter regarding payment of HRA during temporary transfer is governed by Department of Expenditure's OM dated 27.11.1965. As per para, 4(x) of Department of Expenditure, OM dated 27.11.1965, the HRA will not exceed the rate at which it was being drawn by him at old station or the maximum amount that would have been admissible to him at the new station, had he taken a house on rent there, whichever is less. That it is submitted that in response to the representation dated 08.12.2023 of the applicant, Sr. Accounts Officer, PFMS vide letter dated 08.03.2024 has stated that Sh. Birendra Mohan Panda was re-allocated to PFMS Daman & Diu by o/o CGA vide order No.50/2018 dated 07.012.20218 as per his own request to re-allocate him to PFMS against any vacant post of Accounts Officer and subsequently he was attached with SPMU Odisha on his own request and this does not tantamount to transfer in public interest. Therefore, HRA as demanded by Shri Birendra Mohan Panda is not admissible as per rules.

Thatit is submitted that Admissible HRA as per Govt. of India, Ministry of Finance Office Memorandum dated 27.11.1965 has already been paid to the applicant. It is humbly submitted that the matter regarding payment of HRA during temporary transfer/attachment is governed by D/o Expenditure's OM dated 27.11.1965. In para 4(x) of DoE's. OM dated 27.11.1965, it has been clearly stated that the House Rent Allowance will not exceed the rate at which it was being drawn by him at old station or the maximum amount that would have been admissible to him at the new station, had he taken a house on rent there, whichever is less. Keeping in view of the applicability of the due HRA as per DoE's Order dated 27.11.1965, the admissible amount of HRA has already been paid to the applicant. Hence the action taken by this office vide OM dated 08/11.03.2024 is legal and valid.

That, it is respectfully stated that the same is not correct. It is respectfully stated that "representations, if any, will be addressed directly to the approving authority (CGA) only as per the Transfer Policy (Annexure-R-13) dtd.30.10.2015 Para 3(xv). Any representations in respect of posting orders has to be received by the Office of CGA within 15 days of issue of such orders, as orders are placed in the public domain on the day of issue, failing which the same will not be considered. Representations should be suitably documented & justifications provided, which will be considered by the Approving Authority in a case-to-case basis and disposed within 15 working days. As per Annexure-R-5 the office order 33/2018 and dtd.01.10.2018 partially modified and the applicant has been approved for promotion as Pay and Accounts Officer in PFMS Daman. This is not relevant with grant of HRA at the rate of place of duty.

That, it is respectfully stated that the same is false and incorrect as such denied. It is respectfully stated that vide order under Annexure-R/1, this applicant was posted on attachment with SPMU, Odisha with additional charge of SPMU, Daman & Diu. Further, it is respectfully stated that for grant of HRA place of posting is the issue and not the reason for continuance. Moreover, for the interest of administration he was posted at Odisha but only to deny HRA at higher rate, now the Respondents are skipping themselves by taking shelter of falsehood.

That it is respectfully submitted that the same are not correct as such denied. It is respectfully stated that the pleadings made at para-4 relates to different context, having no relation in granting HRA.That, it is respectfully submitted that the same are not correct as such denied. The Respondents in their counter have interpreted the O.M dtd.27.11.1965 in their way without interpreting the same in its letter & spirit.

It is respectfully stated that at Para-1 of the O.M dtd.27.11.1965, the rate of HRA had a condition like "15% of pay subject to a minimum of Rs.20 and maximum of Rs.300", or like that in different class and different Pay per month. Since long, certain % of Pay per month subject to minimum or maximum were not applicable. However, for better appreciation para-4(x) is quoted below:-

It is the specific case of the applicant that para-4(x) is totally inapplicable to the issue involved in this Original Application because the same relates to grant of house rent for first two months of posting in the new station on transfer.