M. Thamizhchelvi vs The Block Medical Officer, Government Primary Health Centre

K. Chandru, J.—The petitioner has come forward to file the present writ petition, seeking for a direction to respondent Block Medical

Officer, Government Primary Health Centre, Melpennathur, Thiruvannamalai District not to deduct house rent allowance from the petitioner''s pay

and refund the amounts already deducted from his pay towards house rent allowance.

The case of the petitioner was that he was working as a Pharmacist in the Primary Health Centre at Melpennathur. Initially, he was appointed to

the Primary Health Centre at Melseshamangalam and he was transferred to the present centre on 22.6.2005. He claims that he was not allotted to

any quarters and no allotment order was issued to him. From the year 2005 to 2008, he was staying at his parent''s house at No. 35, Navakarai

Street, Tindivanam Road, Thiruvannamalai. Thereafter, he was staying in a rented house at LGGS Nagar, Opposite to new bus stand,

Thiruvannamalai. He was also paying monthly rent to the landlord. According to the petitioner, from the months of January and February, 2010

house rent allowance payable to him, i.e. Rs. 1324/- was deducted from his salary and no reason was given. Since he was not occupying any

quarters, there was no question of deducting any HRA towards staff quarters. The petitioner sent a representation to the respondent on 5.2.2010

not to deduct HRA from his pay. Since no reply was given, he has come forward to file the present writ petition.

This Court directed the learned Government Advocate to take notice and to inform whether any quarters was allotted to the petitioner. Mr.

K.H. Ravikumar, learned Government Advocate produced a written instruction from the respondent, dated 5.4.2010. In the instructions, it was

stated that the Primary Health Centre at Melpennathur is working on 24 hours basis. There are 11 posts attached with quarters. Even for

Pharmacist, quarters is given in the centre and any person, who was appointed to that post, rent is recoverable. These quarters are built at the cost

of Rs. 5 to 7 lakhs. Since the work is coming under essential service, employees are expected to stay in the quarters. There is no necessity to give

any special allotment order. Any employee who joined the centre, quarters are provided and HRA has to be deducted. It is only in case where

quarters are uninhabitable, a certificate will have to be obtained to that effect from the PWD Department.

It was also stated that the petitioner without knowing that he is bound to stay in the quarters, has been working in the centre for the last five

years. Not only salary will have to be deducted from January, 2010 onwards, but as per the Government rules it has to be deducted right from

June, 2005. The petitioner has disregarded the intention of the Government in providing quarters and also is staying away from the quarters, i.e. 24

Kms. away from the headquarters, i.e. at the Thiruvannamalai Town and attending only during the time when outpatient were attended to. In proof

of the said averments, a copy of the electricity board card for payment of electricity charges to the quarters occupying by the pharmacist was also

enclosed.

More or less in an identical circumstance, the Supreme Court dealing with the recovery of HRA even for an unallotted accommodation in a

decision in Director, Central Plantation Crops Research Institute v. M. Purushothaman 1995 Supp (4) SCC 633 held in paragraphs 5 and 6 as

follows:

It is clear from the aforesaid provisions that paragraphs 4(a)(i) and (ii) lay down the procedure for making application for accommodation.

Paragraph 4(b)(i) lays down the consequences on refusal to accept the accommodation when offered. There is no doubt that paragraphs 4(a)(i)

and (ii) state that an application has to be made to secure accommodation. However, that does not mean that the Government or the organisation

such as the appellant-Organisation to which the said provisions apply, cannot on their own offer accommodation to the employees. Hence the

reason given by the Tribunal that it is only if the employee applies for such accommodation and he refuses to accept the same when offered that he

would be disentitled to HRA, is not correct. It must be remembered in this connection that the Government or the organisation of the kind of the

appellant spends huge public funds for constructing quarters for their employees both for the convenience of the Management as well as of the

employees. The investment thus made in constructing and maintaining the quarters will be a waste if they are to lie unoccupied. HRA is not a matter

of right. It is in lieu of the accommodation not made available to the employees. This being the case, it follows that whenever the accommodation is

offered the employees have either to accept it or to forfeit HRA. The Management cannot be saddled with double liability, viz., to construct and

maintain the quarters as well as to pay HRA. This is the rationale of the provisions of paragraph 4 of the said Government Office Memorandum.

It is for this reason again that paragraph 4(b)(i) provides that HRA shall not be admissible to those who occupy accommodation provided for

them as well as to those to whom accommodation has been offered but who have refused to accept it. The provisions of paragraph 4(b)(i) are

independent of the provisions of paragraphs 4(a)(i) and (ii). Whereas paragraphs 4(a)(i) and (ii) speak of procedure to be followed by the

employees who are in need of accommodation, paragraph 4(b)(i) provides for the forfeiture of HRA even when the accommodation has been

offered on its own by the Management whether the application for the same has been made or not. There is no distinction made in this provision

between those who have applied and those who have not applied for accommodation. Even otherwise, we are of the view that the distinction

sought to be made by the Tribunal is, on the face of it, irrational, particularly taking into consideration the resources spent on constructing the

quarters.

(Emphasis added)

With reference to the scope of judicial review in the matter of housing accommodation, once again the Supreme Court in State of Orissa and

Others Vs. Gopinath Dash and Others, in paragraphs 5 to 8 held as follows:

While exercising the power of judicial review of administrative action, the Court is not the Appellate Authority and the Constitution does not

permit the Court to direct or advise the executive in the matter of policy or to sermonise qua any matter which under the Constitution lies within the

sphere of the legislature or the executive, provided these authorities do not transgress their constitutional limits or statutory power. See Asif

Hameed v. State of J & K and Shri Sitaram Sugar Co. Ltd. v. Union of India. The scope of judicial enquiry is confined to the question whether the

decision taken by the Government is against any statutory provisions or it violates the fundamental rights of the citizens or is opposed to the

provisions of the Constitution. Thus, the position is that even if the decision taken by the Government does not appear to be agreeable to the

Court, it cannot interfere.

The correctness of the reasons which prompted the Government in decision-making taking one course of action instead of another is not a

matter of concern in judicial review and the Court is not the appropriate forum for such investigation.

The policy decision must be left to the Government as it alone can adopt which policy should be adopted after considering all the points from

different angles. In the matter of policy decisions or exercise of discretion by the Government so long as the infringement of fundamental right is not

shown the courts will have no occasion to interfere and the Court will not and should not substitute its own judgment for the judgment of the

executive in such matters. In assessing the propriety of a decision of the Government the Court cannot interfere even if a second view is possible

from that of the Government.

The Court should constantly remind itself of what the Supreme Court of the United States said in Metropolis Theater Co. v. City of Chicago:

The problems of government are practical ones and may justify, if they do not require, rough accommodations, illogical it may be, and unscientific.

But even such criticism should not be hastily expressed. What is the best is not always discernible, the wisdom of any choice may be disputed or

condemned. Mere errors of government are not subject to our judicial review.

In the light of the above, the writ petition will stand dismissed. No costs. Consequently, connected miscellaneous petition stands closed.