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Judgment
ORDER
Per: - Ram Mohan Johri, Administrative Member
The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs: -
a)“Quash and set-aside the communication dated 29-10-2021 being No.GMCK/Accts./2021-22/844-847 as well as the communication dated 02-11-2021 being No.GMCK/Accts./2021-22/850-854, issued by the Chief Accounts Officer, Govt. Medical College, Kathua (respondent No.5), by virtue of which the petitioner was initially directed to deposit an amount of Rs.1,69,216/- (Rupees One Lac Sixty Nine Thousand Two Hundred and Sixteen only) towards the alleged wrongful drawl of House Rent Allowance paid to the petitioner and the subsequent communication dated 02-11-2021, whereafter an amount of Rs.56,405/- (Rupees Fifty Six Thousand Four Hundred Five) is deducted from the salary of the petitioner in the month of November, 2021.
b)Direct the respondents to strictly adhere to the Rules occupying the field for the allocation of duties to the appointees under SRO-364 of 2020 and not to place them/designate in any administrative activities at any level (departmental and institutional level) over and above the permanent faculty in violation of Rule 8 (3) of SRO-364 of 2020.
c)Direct the respondent No.3 (Principal Govt. Medical College, Kathua) to not to initiate petitioner's APR for the current and next session in view of the facts and circumstances stated in the instant petition and further not to cause any harassment, interference or obstruction in the lawful discharge of duties of the petitioner.
d)Direct the official respondents to release 10% of basic pay as incentive /honorarium in favour of the petitioner for performing the duties of Warden Girls Hostel, GMC Kathua.
e)Any other order which the Hon'ble Court may deem fit and proper may also be passed in favour of the petitioners and against the respondents.”
The facts of the case as averred by the applicant in his pleadings, are as follows: -
The case of the applicant, in brief, is that she was initially appointed as Assistant Surgeon (Medical Officer) in the Health Department pursuant to a selection conducted by the Public Service Commission in the year 2005. Subsequently, after Central Administrative Tribunalapplying through proper channel, she was appointed as Assistant Professor in the Department of Community Medicine, Government Medical College, Kathua, and joined as such on 22.12.2018. According to the applicant, during her service at GMC Kathua she was entrusted with several additional responsibilities, including In-charge Head of Department, Community Medicine, Deputy Medical Superintendent, Warden of Girls Hostel and, during the initial phase of the Covid-19 pandemic, In-charge Medical Superintendent. She asserts that her service record remained satisfactory and her APRs were consistently graded “Very Good”.
The applicant states that GMC Kathua commenced functioning in the year 2018 when its permanent infrastructure was still under development and, therefore, the College as well as the hostel initially operated from temporary/makeshift premises. The Girls Hostel was housed in the ANMT building taken over from the Health Department and was subsequently shifted to the newly constructed hostel building. The applicant was appointed Warden of the Girls Hostel in September 2019 and, according to her, the room made available to her in the hostel was connected with the discharge of her duties and was not an allotment of regular Government residential accommodation.
It is further pleaded that in June/July 2021, the faculty members of GMC Kathua initiated the process for formation of a Medical Teachers Association (MTA), and the applicant was initially recommended and thereafter elected unopposed as its General Secretary. According to the applicant, her relationship with respondent No.3, the Principal, GMC Kathua, deteriorated thereafter and she began to face adverse administrative action. On 04.08.2021, another Assistant Professor was appointed as Warden of the Girls Hostel, thereby relieving the applicant of the said responsibility. The applicant thereafter sought an experience certificate for the period during which she had functioned as Warden.
The applicant states that despite obtaining a No Objection Certificate from the succeeding Warden and the Hostel Manager, her experience certificate was not issued immediately. Upon her submitting reminders, respondent No.3 issued communication dated 09.09.2021 raising certain allegations regarding the manner in which the applicant had discharged her duties as Warden, including issues relating to shifting of furniture. The applicant submitted her reply denying the allegations. An experience certificate was thereafter issued recording her work and conduct as “Average”, against which she also submitted a representation. The applicant attributes these developments to alleged hostility arising after her participation in the MTA.
The applicant further refers to an incident dated 08.10.2021 concerning her request for deployment of a Safai Karamchari in the Department of Community Medicine. Thereafter, she was directed to communicate with the Administrative Section only in writing. A complaint arising out of the said episode was referred to the Institutional Complaints and Grievance Redressal Cell. The applicant questioned the constitution and manner of proceedings of the said Committee; however, according to her, the matter was ultimately settled without any action being taken against any employee.
The principal grievance in the present OA concerns recovery of House Rent Allowance (HRA). The applicant was served with communication dated 29.10.2021 directing her to deposit an amount of Rs.1,69,216/-, stated to have been wrongly drawn as HRA for the period from 16.09.2019 to 02.08.2021, failing which the amount was proposed to be recovered in three monthly instalments. A subsequent communication dated 02.11.2021 was also issued and an amount of Rs.56,405/- was deducted from her salary for November 2021. The applicant submitted replies disputing her liability and contending that she had neither sought nor been formally allotted Government residential accommodation.
The applicant contends that the hostel accommodation was merely a makeshift arrangement made available in connection with her additional duties as Warden and during the Covid-19 period and, therefore, could not be treated as regular Government accommodation so as to disentitle her from HRA. She further alleges that other faculty members, residents and employees who had stayed in the hostel premises were not similarly deprived of HRA. According to her, the erstwhile Principal had also issued an order permitting payment of HRA to hostel wardens despite their stay in the hostel, and consequently her case fell within the exception contemplated under the applicable Finance Department instructions.
Another grievance raised by the applicant is that the recovery was initiated without first granting her an effective opportunity of hearing. She maintains that the respondents ought to have issued a show-cause notice and considered her explanation before effecting any recovery from salary. She has also questioned the assignment of certain administrative responsibilities to faculty engaged on academic arrangement under SRO-364 of 2020, contending that such appointees were essentially engaged for teaching purposes and could not be placed administratively above permanent faculty.
The applicant further apprehends that the subsequent strained relationship with respondent No.3 may adversely affect her APR and consequently her promotional prospects. She has, therefore, sought protection in regard to initiation of her APR. She also claims entitlement to incentive/honorarium equivalent to 10% of basic pay for the period during which she discharged the additional duties of Warden, Girls Hostel, contending that such incentive is being paid to hostel wardens in other affiliated colleges.
The respondents have filed their written statement wherein they have averred as follows: -
On merits, the respondents submit that the applicant was working as Assistant Professor in the Department of Community Medicine, which is an entry-level faculty post. Since senior faculty was not initially available in some departments of the newly established medical colleges, Assistant Professors were assigned charge of departments; however, the overall administrative control continued to vest with the Head of the Institution. The respondents also dispute the applicant’s attempt to attribute the “KAYAKALAP” award exclusively to herself and maintain that it was the result of collective institutional effort.
The respondents contend that while functioning as Warden and In-charge Medical Superintendent, the applicant committed several administrative irregularities. It is alleged that furniture belonging to the institution was utilized or shifted without proper authorization and that certain expenditures and procurement-related actions were undertaken without following the prescribed procedure. They further state that the applicant had been appointed Warden of the Girls Hostel on 16.09.2019 and was residing in the hostel premises during the relevant period.
The allegation that respondent No.3 acted against the applicant because of her participation in the MTA has been specifically denied. According to the respondents, formation/election of the MTA was merely an internal activity and respondent No.3 herself facilitated its constitution by order dated 12.07.2021. The respondents maintain that the applicant was relieved from the duties of Hostel Warden because of administrative irregularities and repeated disagreements with the hostel management and not on account of her association with the MTA. They further maintain that the remarks contained in the experience certificate were based upon their assessment of the work actually performed by the applicant.
With regard to the proceedings before the Internal Complaints Committee, the respondents submit that the Administrative Officer had made a written complaint concerning the applicant’s conduct, whereupon the matter was referred to the Committee. They deny that the Committee was constituted to victimize the applicant and state that it had, in fact, been constituted by the previous Principal. As regards faculty appointed on academic arrangement, the respondents contend that some such faculty members possess considerably greater teaching experience and that the Principal, being Head of the Institution, is competent to utilize their experience in academic, administrative and patient-care matters in the interest of the institution.
On the principal issue of HRA, the respondents rely upon Finance Department Circular No. A/56(2014)-155 dated 11.02.2021, according to which HRA is not admissible to a Government employee who is allotted or is occupying Government accommodation, and HRA already paid in such circumstances is liable to be recovered. It is stated that, acting upon these instructions, the competent authority directed recovery of HRA from the applicant. Accordingly, communication dated 29.10.2021 informed her that an amount of Rs.1,69,216/-, representing HRA for the period from 16.09.2019 to 02.08.2021, was recoverable from her.
The respondents dispute the applicant’s plea that she was singled out. They state that HRA had been recovered from other employees as well. As regards temporary accommodation made available to doctors during the Covid-19 pandemic, the respondents explain that such accommodation was provided in exceptional circumstances, including under disaster-management arrangements, and therefore stood on a different footing.
The respondents further deny the applicant’s claim for payment of 10% of basic pay as honorarium/incentive for performing the duties of Hostel Warden. According to them, no such entitlement is provided under the Jammu and Kashmir Civil Service Regulations/Rules governing pay and allowances of Government employees, nor is there any Government order granting such incentive to hostel wardens. They maintain that practices allegedly followed by other medical colleges cannot, in the absence of an applicable statutory rule or Government order, confer a corresponding entitlement upon the applicant.
As regards the grievance concerning want of opportunity before recovery, the respondents rely upon the communication dated 29.10.2021 as having intimated the applicant about the proposed recovery and further state that a show-cause notice was subsequently issued vide communication dated 15.03.2022. Lastly, the respondents deny any apprehended bias in the recording of the applicant’s APR and state that the assessment is made objectively on the basis of work and performance. On these grounds, they seek dismissal of the Original Application.
Heard learned counsel for the parties and perused the pleadings made by them. The controversy, insofar as it survives for adjudication, essentially gives rise to two distinct questions: first, whether the applicant could simultaneously occupy accommodation made available by GMC Kathua and continue to draw HRA; and second, whether the additional responsibility discharged by her as Hostel Warden entitles her to the claimed incentive/honorarium.
Taking the issue of HRA first, the basic purpose of House Rent Allowance is to compensate an employee who has to arrange residential accommodation at his or her own expense. Where residential accommodation is provided by the Government/employer and is actually occupied by the employee, the foundation for claiming HRA ordinarily ceases to exist, unless a specific statutory provision, Government order or other applicable rule permits simultaneous retention of HRA.
In the present case, there is no serious dispute that the applicant was appointed Warden of the Girls Hostel and that accommodation in the hostel premises was made available to and occupied by her during the relevant period. Indeed, the communication dated 02.11.2021 records that in her own earlier correspondence the applicant had stated that she was allotted a room on priority basis along with furniture after her appointment as Hostel Warden.
The contention that there was no separate or formal allotment order of residential accommodation cannot, by itself, determine entitlement to HRA. What assumes significance is the substance of the arrangement. If Government accommodation was made available and was actually occupied, mere absence of a separate document styled as an “allotment order” would not automatically create an entitlement to draw HRA contrary to the applicable financial instructions.
The Finance Department Circular dated 11.02.2021, relied upon by the respondents, specifically proceeds on the basis that HRA is not admissible where a Government employee is occupying Government accommodation, unless simultaneous payment is expressly permissible under an applicable order or rule. The general principle that provision/occupation of Government residential accommodation may exclude HRA is also reflected in service regulations in other governmental contexts.
The applicant has placed considerable emphasis on the fact that the hostel was initially operating from makeshift premises and that her occupation thereof was linked to the performance of her duties as Warden. In our considered view, these circumstances explain why accommodation was provided to her but do not, in themselves, establish a right to simultaneously draw HRA. The character of a building as temporary or makeshift cannot be decisive when accommodation belonging to or placed at the disposal of the Government institution was actually provided and utilized.
The plea of discrimination on the ground that certain other faculty members, residents or employees were permitted to occupy hostel accommodation while continuing to receive HRA also does not, without more, establish an enforceable right in favour of the applicant. Entitlement to a monetary allowance payable from the public exchequer must flow from the governing rules, orders or instructions and cannot rest solely upon an allegedly different treatment extended to another employee.
We are, therefore, unable to accept the prayer of the applicant insofar as it seeks simultaneous payment/retention of HRA for the period during which she actually occupied the hostel accommodation provided by GMC Kathua. To that extent, the action of the respondents cannot be faulted.
However, while calculating the recoverable amount, the respondents are necessarily required to confine recovery strictly to the period accommodation. Significantly, the communication dated 02.11.2021 itself permitted the applicant to submit a representation within three days for correction of the dates of occupation. Therefore, no HRA can be recovered for any period during which she was not actually occupying the accommodation. The respondents shall accordingly verify the dates from the relevant hostel/allotment/occupation records before final adjustment of the amount.
The second aspect of the matter, namely the applicant’s claim for 10% additional honorarium/incentive for discharging the duties of Hostel Warden, stands on a materially different footing. HRA and honorarium cannot be treated as interchangeable benefits. HRA is an allowance connected with residential accommodation, whereas honorarium/incentive is compensation attached to the discharge of an additional responsibility or specified additional work.
This distinction was, in fact, recognized by the respondents themselves in the communication dated 02.11.2021. While rejecting the objection relating to HRA, the Chief Accounts Officer expressly stated that the claim regarding “Incentive/Honorarium of 10% Basic Pay” was different from HRA and that the applicant could submit a separate representation before the Principal for claiming such honorarium. Thus, the two claims cannot be mixed together so as to deny the applicant consideration of compensation for the additional duties actually discharged by her merely because she was not entitled to HRA.
The record establishes that the applicant was formally appointed Warden, Girls Hostel, vide order dated 16.09.2019 and continued to discharge such responsibility until she was relieved. The respondents themselves rely upon the very appointment as Warden for the purpose of determining the period of recovery of HRA. Having treated the applicant as Warden for denying HRA on account of the accommodation attached to that responsibility, the respondents cannot ignore the very same period of Wardenship while examining the monetary benefit, if any, attached to the additional responsibility.
At the same time, monetary benefits against the State ordinarily require a foundation in the applicable rule, Government order, sanctioned scheme or established entitlement. The Hon’ble Supreme Court has also recognized in the context of honorarium that its fixation is ordinarily a matter of policy, although compensation for duties cannot be administered arbitrarily. Accordingly, the applicant’s entitlement must be worked out with reference to the order/rule/practice governing payment of honorarium to Hostel Wardens applicable to GMC Kathua or similarly governed Government Medical Colleges during the relevant period.
In the peculiar facts of the present case, particularly when the applicant admittedly discharged the additional duties of Hostel Warden pursuant to a formal order and the departmental communication itself recognized her claim for 10% honorarium as a distinct claim requiring consideration, we are of the considered view that the applicant is entitled to the additional honorarium/incentive at the rate of 10% of basic pay for the period during which she actually discharged the duties of Hostel Warden, subject to verification of the relevant governing order and the precise period of such duty. If the applicable order prescribes a different manner of calculation or qualifying conditions, the payment shall be regulated accordingly.
We also find no sufficient material warranting adjudication upon the applicant’s apprehension regarding future recording of her APR. An apprehension of possible adverse action cannot by itself furnish a cause for restraining the competent authority from performing its statutory or administrative functions. Needless to observe, the APR of the applicant is required to be recorded objectively, fairly and strictly in accordance with the applicable rules and her actual performance, uninfluenced by the present litigation.
Similarly, the allegations and counter-allegations concerning the MTA, internal administrative disputes, utilization of vehicles, furniture, functioning of committees and engagement of faculty on academic arrangement need not be adjudicated in the present proceedings except to the extent that they bear upon the reliefs claimed. The Tribunal is concerned with the legality of the service action challenged before it and ought not to enter into every inter se administrative disagreement between an employee and the Head of the Institution.
In view of the foregoing discussion, the Original Application is partly allowed in the following terms:
The challenge of the applicant to the denial/recovery of HRA for the period during which she actually occupied hostel/Government accommodation is rejected. The respondents shall, however, verify the precise period of actual occupation from the official record and recovery shall be confined only to such verified period. Any amount recovered in excess thereof shall be refunded/adjusted in favour of the applicant.
The applicant shall be entitled to additional honorarium/incentive at the rate of 10% of basic pay for the period during which she actually discharged the additional duties of Warden, Girls Hostel, GMC Kathua, subject to verification of the applicable Government/departmental order governing such honorarium and the qualifying period. The respondents shall calculate and release the admissible amount within a period of three months from the date of receipt of a certified copy of this order.
The denial of HRA shall not be treated as a ground to deny the aforesaid honorarium, since the two benefits operate in distinct fields—HRA being related to residential accommodation and honorarium being relatable to additional duties actually discharged.
The respondents shall ensure that the applicant’s APRs/service record are dealt with objectively and strictly in accordance with the applicable rules, without being influenced by the fact that she had raised administrative grievances or instituted the present proceedings.
All other reliefs sought in the OA, which do not specifically survive in view of the aforesaid directions, are declined.
The Original Application is accordingly partly allowed and disposed of in the above terms. There shall be no order as to costs.