Tuesday, 5 April 2016

Whether govt servants are entitled to get house rent allowance even though they are not staying at headquarter/place of duty?

 In that view of the matter, we hold and declare
that, as long as, the said Government Resolution is intact
and the conditions to stay at the place of duty is dispensed
with, in favour of the employees working in the rural areas
under the establishment of Respondent Nos. 2, 3 and 4, in
view of the clause 4 of the said Government Resolution the
said   protection   cannot   be   taken   away   by   the   impugned
circulars and communications. In that view of the matter,
the   members   of   the   petitioner   association   and   all   other
similarly   situated   employees   covered   by   aforementioned
Government   Resolution   dated   5th  February,   1990,
throughout the State of Maharashtra, who are working in
rural areas are entitled for house rent even though they are

not staying at headquarter/place of duty. Therefore, that
part   of   the   circular   dated   5th  July,   2008   and   the
communication   dated   14th  March,   2014   and   6th  March,
2014, i.e.   employees who are not residing at the place of
headquarter,   their   house   rent   should   be   stopped,   stand
quashed   and   set   aside.   The   employees   in   rural   areas
working under the control and supervision of Respondent
Nos. 2 to 5 throughout the State of Maharashtra, covered by
clause 4 of the aforesaid Government Resolution dated 5th
February, 1990, who are entitled for house rent, their house
rent cannot be stopped on the ground that, they are not
residing at headquarters relying upon impugned circulars
and   communications. 

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 5822 OF 2014
Maharashtra Rajya Prathamik 
Shikshak Sangh, Jalgaon 

VERSUS­ 
The State of Maharashtra 
CORAM :     S.S. SHINDE & 
     A. M. BADAR, JJ.
PRONOUNCED ON : 19th October, 2015

2. This Petition takes exception to the impugned
Government   Circulars   dated   05.07.2008   and   03.11.2008
issued by the Rural Development and Water Conservation
Department,   Government   of   Maharashtra,   Mantralaya,
Mumbai i.e. Respondent No.2, and also the impugned report
dated 13th June, 2014, submitted by the Respondent No.5,
in furtherance of the impugned communication dated 14th
March, 2014 of the Respondent No.4 and further impugned
communication   dated   6th  March,   2014   issued   by   the
respondent no.3. 
3. The petitioner claims to be the association of the
primary teachers. The members of the said association are
discharging   their   official   duties   under   the   control   and
supervision   of   Respondent   Nos.   2   to   5.   As   per   the
Government policy, all of them are entitled and are drawing
the house rent. According to the petitioner, in view of the
Government Resolution dated 5th February, 1990, issued by
the Finance Department, Government of Maharashtra, the
conditions prescribed in respect of employees in the rural
areas that of residing at the place of duty for eligibility of
House Rent Allowance, has been dispensed with by clause 4
of   the   aforementioned   Government   Resolution.   The   said
provision is still intact. However, by way of the impugned
circular   dated   5th  July,   2008,   the   Respondent   No.2   has
directed Respondent Nos. 3 and 4 to stop the payment of
house rent to those employees, who are not residing at the
place of headquarter. The learned counsel appearing for the
petitioner submits that, by issuing the circular dated 5th
July, 2008, without superseding the Government Resolution
dated   5th  February,   1990,   the   relaxation   granted   by   the
aforementioned Government Resolution dispensing off the
condition to stay at the place of duty, cannot be taken away.
In   support   of   the   contention   that,   the   circulars   cannot
override   provisions   of   the   Government   Resolution,   the
learned counsel appearing for the petitioner pressed into
service the exposition of the Supreme Court in the case of
Union   of   India   &   anr   V/s   Central   Electrical   and
Mechanical   Engineering   Service   (CE   &   MES)   Group   A
(Direct Recruits) Association, CPWD & ors.1
 and also the
exposition of the Bombay High Court, Bench at Aurangabad
in the case of Santosh Ekoba Sonavane & ors V/s State of
Maharashtra & ors2 and submits that, the Petition deserves
to be allowed. 
4. On the other hand, the learned A.G.P. appearing
for Respondent/State invited our attention to the averments
made in the affidavit in reply and submits that, the circulars
are   issued   by   taking   recourse   to   Section   248   of   the
Maharashtra   Zilla   Parishads   and  Panchayat   Samitis  Act,
1961, and therefore, they have the statutory force, therefore,
the Petition deserves to be rejected. 
1 2008 AIR (SC) 3
2 2001(1) Bom.C.R. 825
5. This   Petition   raises   short   but   important
question   of   law   that,   whether   by   issuing   impugned
Government  Circulars dated 05.07.2008 and 03.11.2008,
the   Rural   Development   and   Water   Conservation
Department,   Government   of   Maharashtra,   Mantralaya,
Mumbai i.e. Respondent No.2, can take away the protection
granted by the Government Resolution dated 5th February,
1990, issued by the Finance Department, Government of
Maharashtra,   Mantralaya,   Mumbai,   in   favour   of   the
employees working in rural areas,   wherein the condition
prescribed in respect of employees in the rural areas that of
residing at the place of duty for eligibility of House Rent
Allowance,   is   dispensed   with   by   clause   4   of   the   said
Government   Resolution,   without   superseding   the
aforementioned   Government   Resolution   and   whether,
circulars   dated   5th  July,   2008   and   3rd  November,   2008
issued by the Respondent No.2 can have overriding effect
over the Government Resolution dated 5th February, 1990 ?
6. We have heard the learned counsel appearing
for the petitioner and the learned A.G.P. appearing for the
Respondent/State.   With   their   able   assistance,   we   have
perused the documents placed on record and, in particular,
the Government Resolution dated 5th February, 1990, issued
by the Finance Department, Government of Maharashtra,
Mantralaya,   Mumbai.   The   introductory   part   of   the   said
Resolution reads thus :­ 
“Government  has sanctioned rates of House Rent
Allowance to the Government employees and others
with effect from 1st  April, 1988 under Government
Resolution,   Finance   Department,   No.RPS­
1287/643/SER­10, dated the 25th  April, 1988. The
demand   that   State   Government   employees   and
others may be granted House Rent Allowance on the
lines   of   Central   Government   rates   was   under
consideration   of   Government.   Government   has
decided that the employees of the State Government,
Zilla Parishads and Government aided institutions
who are entitled for the House Rent Allowance as per
existing Government orders, shall be granted House
Rent   Allowance   at   the   rates   similar   to   those   of
Central Government employees and from the dates
mentioned in the Table under para 2 below.” 
7. In clause 2 of the said Government Resolution,
the   House   Rent   Allowance   admissible   to   the   various
categories   of   the   employees   working   under   the   State
Government and under the Local Bodies etc., have been
mentioned. For the purpose of deciding the present Petition,
the clause 4 of the said Government resolution is relevant,
which reads thus :­ 
“4. House   Rent   Allowance   at   the   above   rates
shall be payable to all employees (other than those
residing   in   Government   owned/hired
accommodation) without requiring them to produce
rent receipts. These employees shall, however, be
required   to   furnish   a   certificate   prescribed   in
Annexure II under Government Resolution, Finance
Department, No.RPS­1287/643/SER­10, dated 25th
April, 1988, to the effect that they are incurring
some   expenditure   on   rent/contributing   towards
rent. House Rent Allowance shall also be paid to
Government employees living in their own houses,
subject   to   their   furnishing   a   certificate   as   in
Annexure   II   accompanying   the   said   resolution.
These   certificates   shall   be   produced   by   the
employees   in   the   month   of   April   each   year   or
whenever there is a change in the contents of the
certificate.   All   other   conditions   at   present
applicable for grant of House Rent Allowance shall
continue   to   apply.  The   conditions   prescribed   in
respect   of   employees   in   the   rural   areas   that   of
residing at the place of duty for eligibility of House
Rent Allowance shall however, be dispensed with.”
(Underline supplied)    
Whether   the   members   of   the   petitioner   –
association are entitled to take benefit of said Government
Resolution and receive the House Rent can get answer, in
para   7   of   the   said  Government   Resolution,   which   reads
thus:­ 
“7. In exercise of the powers conferred by the
proviso   to   Article   248   of   the   Maharashtra   Zilla
Parishad and Panchayat Samitis Act, 1961 (Mah. V
of 1962) and all other powers enabling it in that
behalf, Government is also pleased to direct that
these   orders   should   also   be   made   applicable
mutatis  mutandis  to the  full­time  Zilla  Parishad
employees.”  
It is not in dispute that, the said resolution was
made applicable to the employees working under the Zilla
Parishads   and   Panchayat   Samitis   in   the   State   of
Maharashtra. 
8. By way of issuing impugned circular dated 5th
July, 2008, and circular dated 3rd November, 2008, issued
by the Respondent No.2 and also impugned communication
dated 14th March, 2014, issued by the Respondent no.4 and
further  impugned   communication  dated   6th  March,   2014
issued by the Respondent No.3, Respondent No.2 has taken
decision to stop paying House Rent to those employees, who
are  not   residing  at  the  place  of  duty/headquarter.  As a
result of which, the house rent for which the members of
the petitioner­association  and similarly situated employees
working   throughout   State   of   Maharashtra,   who   were
entitled, Respondents have stopped paying the house rent
and   said   amount   has   been   withheld   from   the   date   of
issuance of the impugned communication dated 14th March,
2014. The relevant clause (2) of the Government Resolution
dated 5th July, 2008 reads thus :­ 
“2. iapk;r jkt lferhus dsysY;k oj ue wn l wpuk Lohdk:u 'kklu vkrk vl s
vkns'k nsr vkg s dh] ftYgk ifj"knk ae/khy f'k{kd] x zkel sod] bR;knh ts deZpkjh
eq[;ky;h gtj jkgr ulrhy R;k aP;kfo:/n f'kLrHk axfo"k;d dBk sj dkjokbZ
dj.;kr ;koh- vU;Fkk] v'kk de Zpk&;k afo:/n dkjokbZ u dj.;kl ts vf/kdkjh
tckcnkj vlrhy R;k aP;kfo:/n rkrMhus dkjokbZ dj.;kr ;koh vkf.k v'kk
eq[;ky;h u jkg.kk&;k deZpk&;k apk ?kjHkkMs HkRrk jk s[k.;kr ;kok- mijk sDr
l anHk Z dz-1 o 2 uqlkj vuqdze s f'k{kd o x zkel sod ;k aP;kiqjrs dk<.;kr vkysys
vkns'k vkrk ;k 'kklu ifji=dkUo;s ftYgk ifj"knk ae/khy e q[;ky;h u
jkg.kk&;k brj loZ xV  “d o ” “M e/khy de Zpk&;k aukgh ykx w dj.;kr ”
;sr vkg sr- g s vkns'k loZ l acaf/krk aP;k fun'k Zukl vk.k.;kckcr n{krk ?;koh-”
(Underline supplied) 
9. The true translation of the said document is as
under :­ 
“2. By accepting the aforementioned suggestions
put   forth   by   the   Panchayat   Raj   Committee,   the
Government is now issuing these orders  for taking
strict disciplinary action   against the teachers of
Zilla Parisahd,   Gramsevak     and the employees
who do not remain present at their head­quarters.
Otherwise the   Officers who are not  taking action
against such employees will be held   responsible
and  immediate action shall be taken against them
and House Rent Allowance of such employees who
do   not   stay   at   their   headquarters   should   be
stopped.       The above referred orders issued at
serial   Nos.   1   and   2   which   were   confined   to
Teachers and Gramsevak are now   applicable   by
this Government Circular to all the employees of
group   “C”   and   “D”   who   do   not   stay   at   their
Headquarters.     Due care be taken to bring   into
the  notice   of   all    the  concerned     scrupulously.”
(Underline supplied) 
10. We have carefully perused the averments in the
affidavit in reply and additional affidavit filed by Respondent
Nos.   1   and   2.   So   far   the   aforementioned   Government
Resolution   of   1990,   is   concerned,   it   is   stated   that,   the
Government by its corrigendum dated 30th November, 1990
referring  to Government Resolution dated 25th April, 1988,
has stated about how to calculate the house rent allowance
and   compensatory   local   allowance   in   which   Government
has directed that, the basic pay is defined in Rule 9(36)(I) of
the Maharashtra Civil Service (Pay) Rules, 1981, on that
basis pay of the house rent allowance and compensatory
local allowance should be calculated. Hence the issue raised
in this Writ Petition & the above corrigendum dated 30th
January, 1990, and referring Government Resolution dated
25th  April,   1988,   are   not   co­related,   the   house   rent
allowance is not part of basic pay as defined in the above
rule no.9. It is further stated in para 10 that, as per Rural
development Department's letter dated 2nd September, 2015,
the Government circular of Finance Department dated 24th
April, 1988 and 5th February, 1990, clarified about how to
allow   house   rent   allowance.   There   is   no   compulsion   for
employee to reside at headquarter, but as per Section 248 of
Maharashtra Zilla Parishad and Panchayat Samiti Act, 1961
(Regulation   Rule   No.5   of   1962),   it   is   implemented   to
employee of Zilla Parishad. It is also clarified that, if the
department   has   decided   the   compulsion   to   reside   the
employee at their head quarter, the department can make
such rule, for better administration and implementation of
schemes for the benefit of rural people, therefore, the Rural
Development   department   has   taken   a   decision   by   the
circular dated 5th July, 2008, 3rd November, 2008 and 14th
November, 2000. 
11. It   is   true   that,   if   Respondent   No.2   wants   to
frame   the   statutory   rules   or   to   add   or   delete   any   rule,
regulating   the   service   conditions   of   the   employees,   the
Section   248   of   the   Maharashtra   Zilla   Parishad   and
Panchayat Samiti Act, 1961 enables Respondent  No.2 to
take   such   steps.   The   provisions   of   Section   248   of   the
Maharashtra  Zilla Parishads  and Panchayat  Samitis Act,
1961 reads thus :­ 
“248.   Recruitment   and   conditions   of   service   of
persons serving the Zilla Parishad.­ 
Subject to the provisions of this Chapter, the
State Government may make rules regulating­ 
(a)   the   recruitment   (including   reservation   for
Scheduled   Castes   and   Scheduled   Tribes   and
Backward   Classes),   functions,   and   terms   and
conditions of service (including payment of dearness
allowance and all conduct and disciplinary matters) of
persons appointed to the District Technical Service
(Class   III),   District   Service   (Class   III)   and   District
Service (Class IV), and 
(b) the   payment   to   be   made   by   the   Zilla
Parishad towards pension, gratuity and other benefits
as   respects   officers   and   servants   who   have   been
serving any existing board and who become servants
of the State Government, or the payment to be made
to   the   State   Government   towards   such   matters   in
respect   of   State   Government   servants   who   have
become   members   of   the   services   under   Zilla
Parishad : 
{Provided   that,   if   the   State   Government
considers it expedient so to do, it may also regulate
the   conditions   of   service   as   respects   pay­scales,
dearness   and   other   allowances,   leave,   pension,
provident   fund   or   any   other   matter   in   relation   to
conditions of service, by a general or special order.}”  
However, in the present case, it is not the case
of Respondent No.2 that, the statutory rules are framed by
invoking the aforementioned provision, and by virtue of said
rules   by   superseding   said   Government   Resolution,   the
condition dispensed with in clause 4 of the the Government
Resolution dated 5th  February, 1990,  for   the employees
residing   in   the   rural   areas   to   stay   at   the   place   of
duty/headquarters,   has   been   recalled.   However,   the
Respondent No.2 has issued circulars and not framed any
rule,   and   therefore,   the   circulars   cannot   override   the
provisions of the Government Resolution dated 5th February,
1990, issued by the Finance Department of Government of
Maharashtra   when   said   Government   Resolution   is   still
intact and not superseded by any subsequent Government
Resolution, or its effect has not been nullified by bringing
the   statutory   rules   or   amending   said   Government
Resolution   therefore,   clause   4   of   the   aid   Government
Resolution   would   remain   in   force.     The   Government
Resolution   dated   5th  February,   1990   operates   as   an
agreement between the employer i.e. Zilla Parishad as its
employee and its terms cannot be changed to the detriment
of the employees unilaterally.    
12. Apart   from   legal   provision   discussed
hereinabove, the members of the petitioner association have
placed on record the copies of documents showing that,
they are residing at the place of headquarter. However, it
appears that, the Respondent Authorities have proceeded in
haste and stopped the house rent allowance on the ground
that, members of the petitioner association are not residing
at the place of headquarter, which is not proper and same is
contrary to the provisions in clause 4 of the Government
Resolution referred hereinabove. 
13. In that view of the matter, we hold and declare
that, as long as, the said Government Resolution is intact
and the conditions to stay at the place of duty is dispensed
with, in favour of the employees working in the rural areas
under the establishment of Respondent Nos. 2, 3 and 4, in
view of the clause 4 of the said Government Resolution the
said   protection   cannot   be   taken   away   by   the   impugned
circulars and communications. In that view of the matter,
the   members   of   the   petitioner   association   and   all   other
similarly   situated   employees   covered   by   aforementioned
Government   Resolution   dated   5th  February,   1990,
throughout the State of Maharashtra, who are working in
rural areas are entitled for house rent even though they are
not staying at headquarter/place of duty. Therefore, that
part   of   the   circular   dated   5th  July,   2008   and   the
communication   dated   14th  March,   2014   and   6th  March,
2014, i.e.   employees who are not residing at the place of
headquarter,   their   house   rent   should   be   stopped,   stand
quashed   and   set   aside.   The   employees   in   rural   areas
working under the control and supervision of Respondent
Nos. 2 to 5 throughout the State of Maharashtra, covered by
clause 4 of the aforesaid Government Resolution dated 5th
February, 1990, who are entitled for house rent, their house
rent cannot be stopped on the ground that, they are not
residing at headquarters relying upon impugned circulars
and   communications.   Accordingly,   we   direct   the
respondents   to   disburse   the   withheld   amount   towards
house   rent   as   expeditiously   as   possible   but   within   four
weeks from today and continue to pay the same regularly.  
14. The Writ Petition is partly allowed. Rule made
absolute in above terms. The Writ Petition stands disposed
of with above observations. 
Sd/­ Sd/­ 
( A. M. BADAR, J. )        (S.S. SHINDE, J.)

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