R.P. Jaiswal vs Union Of India & Ors.

The applicant is challenging the orders dated 03.06.2022 (Annexure A-10), 29.11.2022 (Annexure A-12) and 17.02.2023 (Annexure A-13), whereby his request for refund of Rs.1,95,992/- recovered on account of payment towards HRA, has been rejected by the respondents.

Brief facts of the case are that the applicant was posted as Senior Postmaster at Bhopal GPO and worked as such from 26.04.2015 to 18.11.2017. The post-attached quarter at Bhopal GPO was not worth living and the predecessors of the applicant could not occupy the post-attached Central Administrative Tribunal^{quarter due to this reason. Meanwhile, as per Audit report dated 16.06.2017} (Annexure A-1), the drawl of HRA by the applicant for the period from May, 2015 to April, 2017 was objected and recovery from the applicant was advised. The applicant submits that recovery in respect of HRA paid to the then Post Masters of the same place namely Shri A.K. Gupta and Shri Hemraj Ahirwar was also advised in Para 15 of the audit report (Annexure A-1). But subsequently the refund was made to them as per order dated 04.12.2019. Therefore, denial of the same benefit to the applicant is unjustified and illegal.

In their reply, the respondents have stated that the post of Senior Postmaster, Bhopal GPO had the post-attached quarter which was allotted to the applicant on his joining. An inspection/audit was carried out by the audit team of Postal Account Office, Bhopal, which had issued inspector report dated 16.06.2017 (Annexure A-1). As per Para No.15 of audit report, the applicant had drawn HRA since long time against post-attached quarter, which is irregular and loss to the Department. It was also mentioned in the report that there is no order regarding de-quarterisation of post-attached quarter. Thus, the audit team observed to recover the amount of Central Administrative Tribunal^{Rs.126152/- paid to the applicant as HRA for the period from May, 2015 to} April, 2017 and to stop payment of HRA of the applicant. As per the audit report, the recovery of Rs.136872/- was made towards the amount paid as HRA during the period from May, 2015 to June, 2017 and the applicant was stopped getting HRA from July, 2017 to October, 2017. The recovery was made in monthly installment of Rs.22812/- per month from the salary of the applicant of month December, 2017 to May, 2018 before his retirement on 30.06.2018.

The applicant has filed rejoinder to the reply filed by the respondents iner alia stating that due to inhabitable condition of the post-attached quarter at Bhopal GPO, Shri Bhagwati Chaube, the then Senior Postmaster Bhopal GPO and Shri A.K. Gupta the then Postmaster Bhopal GPO were permitted to reside in the private accommodation as per letter dated 07.09.2009 and 07.10.2013 respectively. Thereafter, on an application from Shri Hemraj Ahirwar, the then Senior Postmaster Bhopal, GPO, the post attached quarter at Bhopal GPO has been treated as non-residential for the period from 19.11.2013 to 10.04.2015 as per letter dated 04.12.2019 (Annexure A-16). The applicant has taken over the charge of the Post Master on 26.04.2015 just after Shri Hemraj Ahirwar.

The respondents have also filed their additional reply to the rejoinder filed by the applicant stating that the during the working period of the applicant, the Civil Wing had made necessary repairing in April 2016 in the post-attached quarter. It has also been reiterated that the quarter was declared inhabitable and dequarterized vide order dated 18.06.2019 Central Administrative Tribunal (Annexure A-15) after the retirement of the applicant.

Heard learned counsel for the parties and perused the pleadings and the documents available on record.

Counsel for the applicant stated that in an identical case, i.e. Original Application No.200/331/2019, this Tribunal vide the order dated 18.04.2022 had considered and granted relief to the applicant therein qua entitlement of HRA for the post-attached quarter, which was not worth living.

There can be no dispute with the general proposition that HRA is ordinarily not admissible to an employee who has been allotted Government accommodation in accordance with the applicable rules. However, the question in the present case is not merely whether a quarter was formally allotted. The material question is whether the accommodation was actually capable of being used as residential accommodation and whether the applicant was responsible for the alleged erroneous payment. The distinction assumes importance because the right of the administration to regulate payment of HRA cannot be divorced altogether from the factual Central Administrative Tribunal^{condition of the accommodation provided by it. An employee cannot} reasonably be expected to reside in premises which are demonstrably unfit or unsafe for human habitation merely because such premises have been described administratively as a "quarter".

In the present case, it is quite evident that the payment towards HRA was made by the department itself during the entire period from May, 2015 to April, 2017. The communication dated 04.12.2019 (Annexure A-19) clearly reveals the fact that the post-attached quarter was not living worthy since 2009 and no repairing work was ever carried out by the Department. Because of such circumstances, the Post Maters had no option but to live outside and they were drawing HRA since 2009. The fact that the applicant's predecessors were also allowed to stay outside the post-attached accommodation and were paid HRA is another material circumstance which cannot be brushed aside. If the same accommodation was unsuitable for residence and the administration had, on earlier occasions, permitted incumbents of the same post to live outside and draw HRA, the respondents were required to explain why a different standard was subsequently applied to the applicant.

The principle of equality embodied in Article 14 of the Constitution of India requires the administration to act consistently in materially similar situations. Of course, a previous erroneous payment cannot, by itself, create an indefeasible legal entitlement. Nevertheless, where the earlier treatment was based upon the same factual circumstance namely, the condition of the very same post-attached accommodation, it constitutes relevant evidence of the department's own understanding of the suitability of the premises. The audit objection, therefore, cannot be treated as conclusive proof that the applicant was liable to refund the HRA. An audit objection may require the competent authority to examine whether the payment was legally admissible, but the consequential recovery must still be tested against the applicable rules, the actual condition of the accommodation, the conduct of the employee and the settled principles governing recovery of excess payments. The fact that the predecessors of the applicant were similarly allowed to reside outside and were paid HRA further strengthens the applicant's contention that the accommodation was not ordinarily being treated as suitable residential accommodation. The respondents have not been able to demonstrate the material change in circumstances or establish that the earlier payments were themselves made under materially different Central Administrative Tribunal^{circumstances. Thus, singling out the applicant for recovery would offend} the principle of fairness and consistency in administrative action.

In view of the foregoing discussion, the impugned recovery orders of HRA paid to the applicant for the period from May, 2015 to April, 2017 are quashed and set aside. The respondents are directed to refund the recovered amount from the applicant within a period of three months from the date of receipt of a certified copy of this order. However, no interest shall be admissible on such amount.

The Original Application is accordingly allowed in the above terms. No order as to costs.