Rama Shanker Shukla & Ors. vs Union Of India & Ors.

The instant OA has been filed under Section 19 of the Administrative Tribunals Act, 1985 seeking relief to quash the impugned orders dated 30.01.2020 and 03.05.2018 passed by respondent No. 4 with all consequential benefits, and to direct the respondents to restraining the respondents from taking coercive action and recovery of HRA from the applicants w.e.f. 07.03.2004 in pursuance of the order dated 30.01.2020, and any other relief which is found deemed fit and to award cost.

The brief facts of the case is that the applicants working under the respondents and are the employees of DGQA and have challenged the recovery of HRA since 2004 orders passed by the respondent Nos. 1, 2 and 3. The applicant Nos. 4, 5, 8, 9, 11, 12, 14, 15, 16, 18, 20, 22, 30, 32, 37, 39, 41, 46, 49, 63, 64, 65, 66, 67, 68, 69, 70, 71, 73, 74, 75, 77, 80 and 81 are regular Group „C‟ employees and applicant Nos. 1, 2, 12, 13, 29, 30, 36, 37, 38, 41, 42, 44, 46, 48, 52, 56, 63, 65, 66, 70, 72, 74, 75, 76 and 81 are going to retire very soon and applicants Nos. 54, 55, 57, 58 and 71 have already retired from service. The MoD ID No. 687/04/D (Civ) dated 20.07.2004 a clarification was sought related to compulsory providing Government accommodation to staff / officials would be newly transferred / appointed officials and not to those, who were in position before the issue of circular. In the MoD letter No. 81397/DGQA/ ADM/RMD (CW) dated 20.08.2004 it is very clearly mentioned “that the staff already getting HRA till this date should not be asked to obtain No Accommodation Certificate (NAC)”, means they were allowed to avail HRA without NAC. Respondent No. 1 in exercise of the power as conferred to the proviso of Article 309 of the Constitution of India with the approval from the President of India got enacted the rules by name and nomenclature of Rules for allotment of residential accommodation of civilians serving in Directorate General of Quality Assurance Establishments at station other than Delhi and New Delhi Area 1995. A specific provision has been made for the purpose of providing the facility of residence to the respective defence civilian in this regard.

Subsequently, on 13.06.2005 the respondents thereafter issued a circular dated 20.08.2004 and issue of NAC as a pre-requisite for drawl of HRA was examined in consultation with Ministry of Defence and Directorate of Estate, Ministry of Urban Development and it was decided that till the procedure for regulation of grant of NAC is finalized the HRA shall be paid to all employees who are not in possession of Government accommodation till further orders. The applicant were getting HRA w.e.f the date of appointment to 31.10.2019 without NAC and after that with NAC in the light of the circular dated 13.06.2005. In the meantime the respondents issued a circular dated 16.03.2018 providing the guidelines relatable to allotment of entitled accommodation of grant of HRA to civilian employees in DGQA. However, it appears that on 03.05.2018 the matter with respect to grant of HRA came up for consideration before the respondents pursuant whereto on 03.05.2018 a letter was issued bearing No. A/97401/ Compliant/ JJ/DGQA (Vig Cell) pc whereby wherein under the issue was being examined with respect to certain cases involving drawl of HRA by DGQA officers in contravention of the existing guidelines on the subject, so the Secretary had directed to conduct detailed investigation and recover forthwith the HRA in such cases where same has been drawn by / granted to the officers of DGQA as stipulated in para 2 of the said guidelines. On 06.09.2018 the respondents issue a letter whereby under the office note dated 13.06.2005 was cancelled and it was mentioned that the grant of HRA to DGQA civilian employees will be made in accordance with SRO 31 and is effective from the date of publication of the Gazette Notification dated 07.03.2004 and on the next date 07.09.20108 an office note was issued with regard to investigation into erroneous grant of recovery of non-entitled house rent allowance claim of officers of HQ DGQA, whereby under recovery was directed to be made from the civilian employees.

On 07.01.2019 the respondents again issued an office note whereby recovery was ordered. An on 05.03.2019 an office order was issued by the respondent No. 1 whereby it was mentioned that the matter was examined by the Government of India, Ministry of Finance, Department of Expenditure in supersession of the OM issued prior to it and in order to simplify the procedure relating to grant of HRA to Central Government Employees, President of India in consultation with the Ministry of Housing and Urban Affairs and the Staff Side of the National Council (JCM) was pleased to decide that the conditions of applying for government accommodation and furnishing of NAC by Central Government employees to become eligible for HRA are dispensed with for all places in respect of General Pool Residential Accommodation controlled by Directorate of Estates. On 09.08.2019 an office note was issued whereby the guidelines wherein establishment was given final reminder by respective dates to furnish report, in case they fail to submit requisite report by the due date, it will be presumed that all the employees in the establishment concerned were erroneously granted HRA and therefore liable for recovery. On 26.09.2019 another office note was issued whereby investigation into erroneous grant and recovery of non-entitled house rent allowance claim of officers of HQ DGQA was discussed and data / reports from the establishment so sought till 04.10.2019. On 24.10.2019 the Director General of Ordnance Factories, issued a letter to all their offices with respect to dispensation of conditions of applying Government Accommodation and furnishing of NAC for admissibility of HRA. A meeting was held where in two phases recoveries were ordered which are as under:

On 31.01.2020 the respondent No. 5 proceeded to pass an order for recovery from retrospective effect from 07.03.2004 which is illegitimate as the applicants have been given HRA without NAC due to respondents circular of non submission of NAC for getting HRA and it is not their case that they have got dual benefits of both HRA as well as Government accommodation. They have used HRA for the purpose of obtaining private accommodation and have already spent the amount and their claim for HRA have been cleared all these years by the respondents authorities only in which there is no role of the applicants. Hence, no recoveries can be made from them. Hence, their OA should be allowed and the relief claimed should be granted.

On notice the respondents have filed their counter affidavit where the basic facts of the case are not denied, but the respondents claimed that as the official accommodation was available it was wrong to give HRA to the applicants without obtaining NAC and hence, the irregular payments need to be recovered, and so their action is correct.

Rejoinder has been filed by the applicant wherein they have reiterated their stand as in the OA.

The case came up for final hearing on 16.01.2024. Shri Rohit Singh holding brief of Shri Anil Kumar Singh, learned counsel for the applicants and Shri Vinod Mishra, learned counsel for the respondents were present and heard. I have gone through the records carefully and considered the rival contentions.

From the averments of both the parties it is very evident that the case of the applicants is squarely covered by the other two cases which have been cited as OA 191/2020 dated 22.12.2023 and OA No. 192/2020 dated 22.12.2023.

From the record, it is evident that the authorities vide their impugned orders dated 30.01.2020 and 03.05.2018 have passed recovery in the following two phases:-

Further, from the record it is evident that vide their letter dated 13.06.2005, the authorities had ordered in the following manner:-

Simple perusal of this clearly shows that the authorities themselves decided that till the procedure of regulation for grant of No accommodation certificate is finalized; HRA shall be paid to all employees who have not been in possession of govt. accommodation tll further orders. So, it is clear that by this order, as the procedure for grant of No Accommodation certificate was yet to be finalized the authority had themselves voluntarily decided that HRA shall be paid to the employees who are not in possession of government accommodation without any NAC. The authorities have also placed another order dated 06.10.2008 (Annexure CA-1) which reads following:-

Simple reading of the order shows that earlier order of 13.06.2005 where grant of HRA without NAC was possible, was cancelled and all establishments under the administrative control of respondents were directed and informed for compliance. But, why this order was not implemented and complied by Pay Disbursing Officers is not understandable. Although in their counter reply the respondents could claim on the applicants that the applicants were to inform the Pay Disbursing Authority of their status with respect to application for Govt. accommodation at their posting station i.e. whether or not applied or whether NAC pending or received or rejected etc. They conclude that the applicants have misled/concealed the material information but it is hard to believe as the applicants themselves were not the Pay Disbursing Officer and who were directed by the authorities‟ order dated 06.10.2008 no. A/81397/DGQA/Adm/RMD/(CW) to be complied by SRO 31 and regular provision where NAC was essential for such employees who were not given government accommodation to draw HRA. Why the Pay Disbursing Authorities did not scrutinize this and what action the authorities have taken against their Pay Disbursing Officers before putting all blame on the junior officials. And in no organization Pay Disbursing officers would generally allow such lapses without any scrutiny while disbursing any pay or emolument. The applicants have vehemently denied the paragraph 35 in rejoinder and reiterate that it was the duty of the Pay Disbursing Officer to implement the SRO and as it has not been insisted and implemented, they cannot be held accountable for the authorities‟ lapses. As the respondents have failed to substantiate their contentions that the applicants are guilty of furnishing any incorrect information/ misrepresentation/ fraud which had led to the concerned competent authority to commit mistake of making higher payments to the employees.

Furthermore upto 06.10.2008 all such irregular drawl of HRA without any NAC Production was covered by the respondents‟ own order dated 13.05.2005 as discussed above. Ordering any recovery for the said period is highly irregular and whimsical. And period subsequent to 06.10.2008 the Pay Disbursing Authorities were responsible for mistake in not implementing SRO 31 in spirit, and hence holding applicants being responsible for the same at this juncture retrospectively may not be justified. Hence, I have no doubt that the Hon’ble Apex Court judgment in the case of State of Punjab vs. Rafiq Masih and others (2015) 4 SCC 334 is very much relevant in the case wherein the Hon‟ble Supreme Court had clearly mentioned following:-

The applicants have further cited the case of Thomas Daniel vs. State of Kerala & others of the Hon‟ble Supreme Court in Civil Appeal No. 7115 of 2010 dated 02.05.2022 wherein the court relied on the judgment of Rafiq Masih and other catena of judgments and granted relief.

From the facts of the instant case, it is clear that House Rent Allowance has been paid in violation of the Rule which require that the applicants should have given “No Accommodation” certificate and the fact is not controverted that none of the applicants were given any government accommodation and that they used HRA for obtaining private housing for themselves. So, it is not the case of double payments although the payments were irregular in nature as it was without the production of NAC, but as the housing is a fundamental requirement for survival and well-being and service condition provided for proper housing and HRA is an important service condition, service for efficiency and integrity in work, and as the applicants have utilized the amounts given as HRA for procuring private housing for themselves. Hence, post facto recovery order retrospectively for their own mistakes by the authorities; and laxity and tardy implementation of their policies and circulars on housing by their own Pay Disbursing Authorities, as is evident from the issuance of the order dated 13.06.2005 where no accommodation certificate procedure dispensed with and even after the same was nullified by their own order dated 26.10.2008, cannot be justified. The Pay Disbursing Authorities did not enforce the said order till date 2018. Hence, I have no doubt in my mind that this case is covered by the Hon’ble Supreme Court order in the case of State of Punjab vs. Rafiq Masih (supra) and the authorities were not correct in passing the impugned order and going ahead with recovery; without giving notice and without hearing the applicant and without applying their minds, and without considering and appreciating the role of Pay Disbursing Authorities.

Considering the above mentioned facts and circumstances, I pass the following orders:-

All associated M.As. also stand disposed of accordingly. No costs.