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Judgment
Heard Mr. A Roy Barman, learned counsel appearing for the petitioner as well as Mr. Biswanath Majumder, learned Central Government counsel appearing for the respondents.
By means of this writ petition, the petitioner has challenged the decision of the respondent for denying him the double HRA [House Rent Allowance].
Briefly stated the petitioner's case is that the petitioner was transferred to the office of the Deputy Inspector General (DIG), CRPF from Gwalior to Agartala, meaning within a state in the North eastern region of the country. After he joined his position at Agartala, he claimed for the double HRA as he could not bring his family to Agartala for various reasons including that of education of his children. Initially, the said double HRA was sanctioned by the IGP (CRPF), Tripura Sector, Agartala. From the sanction order dated 21.07.2017 [Annexure-
5 to the writ petition], the said fact can be gathered. For purpose of reference, the entire text of the said sanction order is extracted hereunder:
"OFFICE OF THE IGP, TRIPURA SECTOR, CRPF, USHABAZAR, AGARTALA
(TRIPURA WEST-799009)
No. H.III-1/2017-18-Accts-3
Dated, the 21st July, 2017
SANCTION ORDER
Under the authority of GOI. Ministry of Finance O.M. No.2(38)/2001-E-II(B) dated 24.09.2003 and O.M. No.2(13)/2008-E-II(B) dated 29.09.2008 read with Tripura Sector HQR office order No. R.VI-1/2016-17-Accts-II dated 17.01.2017, I am directed to convey the sanction of IGP, Tripura Sector, CRPF, Agartala, towards the House Rent Allowance in respect of Shri Deepak Sharma, DIGP (IRLA No.4052) of this Sector Hqr from the period of 31.12.2016 to 30.06.2017 @ 32% of his Basic Pay and Grade pay and 24% of his Basic pay wef 01.07.2017 (as per 7th Pay Commission Recommendation). Officer's family is living at Ghaziabad ("X" Class City for HRA) in rented accommodation since August 2012 when he was posted in 221 Bn as Commandant at Greater Noida, later 221 Bn was shifted to Suratgarh Rajasthan and subsequently he was transferred to GC CRPF Gwalior and his family stayed at rented accommodation at Ghaziabad only.
This issues with the approval of the IGP on office note dated 19.07.2017.
Sd/-21/07/17
(Deepak Sharma)
DIG (Prov. & Accts.)
No. H.III-1/2017-18-Accts-3
Dated, the July, 2017
Copy forwarded to:-
The Assistant Director (Accounts), Pay and Account Office, New Delhi for information and drawal action please.
Sd/- 21/07/17
(Deepak Sharma)
DIG (Prov. & Accts.)"
But the Director (Accts, Pay & SCC) under Ministry of Home Affairs, Government of India by their communication dated 03.09.2017 made to the IGP, Tripura Sector (CRPF) has returned the said double HRA sanction order by observing that the petitioner is not entitled to get 30% HRA at Gaziabad as his family is not residing at his previous place of posting i.e. Group Center, Gaziabad. The said decision is under challenge in this petition.
Mr. Biswanath Majumder, learned CGC appearing for the respondent has submitted that the said sanctioned order, as issued by the IGP (CRPF), Tripura Sector, Agartala has been recalled by the superior authority as the policy wherefrom the entitlement of the double HRA emanates does not entitle the petitioner to have the said benefit.
In this regard Mr. Majumder, learned counsel has submitted that in the reply filed by the Union of India- respondents, it has been clearly averted as follows:
"That in response to the averments made in paragraph No. 7 of the Writ Petition under examination, I state that the same was returned by the respondent No.-3 vide letter No.-4052/2017-18- GOs bill dated 03.09.2017, with remarks that "officer i.e. the petitioner is not entitled for HRA as his family is not residing at his previous place of posting i.e. Group Centre Gwalior". The copy of the PAO letter i.e. return of HRA sanction order dated 03.09.2017 has been forwarded to the petitioner."
[Emphasis supplied]
In this regard there is no dispute that the controversy in the writ petition hinges on whether in terms of the policy, the petitioner is entitled to draw the double HRA for being transferred and posted in one of the states of the North East region.
Mr. Roy Barman, learned counsel appearing for the petitioner has taken this court to the policy memorandum including the memorandum dated 24.09.2003, [Annexure-1 to the writ petition]. By the said memorandum dated 24.09.2003, the Government of India has clearly laid down the policy in respect of the double HRA in the following manner:-
"The undersigned is directed to invite reference to this Ministry's O.M. No.11016/I/E-II(B)/84, dated 29.03.1984 read with O.M. of even number, dated 21.05.1984 and the clarification issued vide O.M. NO.11014/E-II(B)/84, dated 28.05.1986 in this regard and to say that references have been received in this Ministry regarding admissibility of the benefit of additional HRA to those Central Government employees who on their transfer to N.E. Region including Andaman and Nicobar and Lakshadweep Islands (and also in Sikkim with effect from 01.08.11997) keep their families at the previous station of posting in hired or own accommodation after vacating the Government accommodation which they were occupying and have to vacate after transfer to N.E. Region/A & N and Lakshadweep Islands/Sikkim.
It has been decided that such officers would also be entitled to the benefits of the additional HRA as per the scheme subject to fulfillment of other condition and the stipulation that they should have been in receipt of HRA at the last duty station would be relaxed in such cases."
[Emphasis supplied]
Mr. Roy Barman, learned counsel has also referred to the office memorandum dated 02.01.2009 and the office memorandum under No.2(19)/E.II(B)/2008 dated 02.01.2009. The same policy has been replicated by the various notifications as referred in the said Office Memorandum dated 02.01.2009.
The decision of the Central Government (Union of India) is very clear that if a civilian employee of the Central Government is transferred and posted from a date prior to 01.01.2006 and who leaves their family behind at the old duty station, the double HRA will be circulated w.e.f. 01.09.2008 on the pre-revised pay as on date of the transfer. But the percentage rate of the HRA as made effective from 01.09.2008 as per OM No.2(13)/2008-E.II(B) dated 29th August, 2018 will apply w.e.f. 01.09.2008.
It has been further asserted that in case of a civilian employees of the Central Government transferred to and posted from a date on or after 01.01.2006, the HRA of the old duty station w.e.f. 01.09.2008 will be calculated on the revised pay as on the date of transfer with percentage rate effective on 01.09.2008 as per OM No.2(13)/2008-E.II(B) dated 29th August, 2008. Even the revised pay would be made basis for purpose of deducing the amount of the HRA. The said principle has been reasserted by the Government of India, Ministry of Finance, Department of Expenditures by their Office Memorandum under No.28/1/2017-E.II(3) dated 19.07.2017 which has come to effect from 01.07.2017.
It is well known that the CRPF is not a combative force, so the person enrolled with the CRPF is civilian. Hence, the employees and the officers of the CRPF belong to the civilian establishment. On cancellation of the sanction order, as stated above, the petitioner made the representation to the Director, Accounts by citing a case of the Delhi High Court which according to the petitioner may cover the area of controversy, if any at all. The said representation was filed on 30.11.2017.
The Delhi High Court in R. S. Mishra vs. Union of India (UoI) & Ors. [judgment dated 19.09.2007] has observed inter alia, that the petitioner of that case was a resident of Gurgaon and, therefore, when his services were terminated at Rajkot, there was no reason or occasion for him to stay at Rajkot. After the termination of his services he had shifted to his residence at Gurgaon and filed writ petition in the High Court of Delhi challenging his termination. From the date of his termination in the year 1988 till October, 2000 when orders for reinstatement were passed and he was transferred to Imphal, he remained at Gurgaon, namely, the place of his residence. In this backdrop, in the peculiar facts of this case denying benefit of double HRA to the petitioner on the ground that his family did not stay at Rajkot during the period he was in Imphal is clearly unjust and unwarranted. The rationale behind grant of double HRA to such employees, who are posted to North-Eastern region or at Andaman and Nicobar Islands, is that on their posting to those difficult stations, they are not expected to take their families along with them. That is the reason why posting to these places is called difficult posting, as it is not normally feasible to keep the families along while working at such stations. In order to ensure that such employees join these difficult stations, the benefit of HRA is extended to their families as well, who are allowed to remain at the last station of posting. It is not in dispute that the petitioner otherwise fulfilled all the conditions for grant of double HRA. When we look into the spirit and rationale behind granting of this benefit, as explained above and also the circumstances in which the petitioner's family could not be expected to be at Rajkot, the petitioner was clearly entitled to the benefit of double HRA. It was the action of respondent terminating the services of the petitioner way back in 1988 when he was posted at Rajkot that compelled the petitioner to leave that station and come to his home town. The said termination has been found to be illegal and that is why after the judgment of [this] Court the petitioner was reinstated in service. It would be, in these circumstances, too onerous a condition to compel the petitioner to leave his family at Rajkot and proceed to Imphal in order to get double HRA. We are, therefore, of the opinion that the petitioner was entitled to double HRA for the aforesaid period, i.e. 30.01.2000 to 30.06.2003.
The double HRA was allowed by the Delhi High Court to be paid to the petitioner Sri R. S. Mishra. In the face of this judgment, Mr. B. Majumder, learned counsel has submitted that the said judgment is distinguishable inasmuch as, since the petitioner of that case was terminated, it was physically impracticable to live at Rajkot and that particular circumstance has been taken care of by the Delhi High Court while passing this judgment. But this judgment cannot be implied to the circumstances of the petitioner's case, as there was no such compelling circumstance, not to live with the family at Guwalior and, as such, with the true spirit of this policy of the government as postulated in the various memoranda (as referred by this court) the petitioner cannot be entitled to HRA benefit.
Having appreciated the submissions made by the learned counsel for the parties, this court is confronted with only one question - what the purpose is for granting double HRA to the employees and officers who are posted from outside the North Eastern states etc. to the North Eastern region or Sikkim or Andaman & Nicobar Islands.
From a bare reading of the memorandum or the policy as reflected, it is entirely for welfare of the families of the employees who are posted in the difficult stations within the said notified territory. Those central government employees who on their transfer to the said notified region keep their families at the previous place of posting in hired or own accommodation after vacating the government accommodation which they were occupying and had to vacate after transfer shall be entitled to the benefit of the double HRA or additional HRA.
The purpose is evident to i.e. not to create any compulsion to the officers who are working in the north eastern states and the other territories as mentioned in the office memorandum dated 24.09.2003 or the subsequent memorandum, as referred to bring their families to those difficult stations. If it is the objective of granting the double HRA to the officers/employees who are posted in the difficult regions as covered by the memorandum, the said memorandum has been issued by the Department of Expenditure, Ministry of Finance, Government of India.
This court does not find any reason why the petitioner shall be deprived of such benefit. Whether such benefits have been taken in the previous station or not is grossly irrelevant. A highly technical approach has been adopted by the Director, Accts., Pay & SSE and their decision is not embedded in the government policy and as such, the decision as communicated to the Inspector General (CRPF), Tripura Sector, Agartala vide letter dated 03.09.2017 is liable to be interfered with being grossly failed to survive the test of reasonableness. Accordingly, the impugned decision is set aside. The petitioner shall be entitled to draw the double HRA in terms of the sanction order dated 21.07.2017 as issued by the Inspector General (CRPF), Tripura Sector, Agartala.
The arrears of double HRA as accrued in the account of the petitioner, shall be paid from the date of his posting at the Group Center, Tripura Sector, Agartala. It is made clear that if it is found that the petitioner is not entitled to one HRA for his staying in any government accommodation, only single HRA shall be paid to the petitioner on account of his family's staying at Noida. Conversely, if the petitioner is not staying in any government accommodation, then he will be entitled to get the double HRA from the date of his joining in the notified region as catalogued by the memorandum dated 24.09.2003, [Annexure- 1 to the writ petition].
In terms of the above, this writ petition stands allowed to the extent as indicated above.
There shall be no order as to costs.