The Delhi High Court recently ruled that central government institutions/PSUs and self-governing bodies other than those explicitly mentioned in the HRA General Rules and Orders are also covered by the rules.
The observation was made by a bench of Justice Talwant Singh and Rajiv Shakhdher in a case where a claim was raised that the Indira Gandhi National Open University (IGNOU) is neither the central government department nor the state government, nor a self-governing body/enterprise, nor a semi-governmental organization for the purposes of the HRA rules.
Thus, the petitioner, a government employee, challenges an order from his employer for the recovery of HRA on the grounds that his wife was already receiving the HRA from IGNOU and is therefore barred under Rule 5 (c ) (iii).
Rule 5(c)(iii) states:
A civil servant is not entitled to housing allowance if his wife/husband has been allocated accommodation at the same station by the central government, state government, self-governing public enterprise or semi-governmental organization such as a municipality, Port Trust, etc., that he/she resides in this accommodation or that he/she resides separately in accommodation rented by him/her.
According to the employer, the applicant was not eligible to claim HRA, since his wife was receiving HRA.
The Court ruled that IGNOU is an autonomous agency of central government under the administrative control of the Ministry of Human Resource Development and it is funded by budget support and being an autonomous agency of central government, it is covered by paragraph 5 (c) (iii ) of the conditions for granting HRA .
“Note the word “etc.” used after “Port Trust”, implying that the list of organizations mentioned in paragraph 5(c)(iii) is not exhaustive and that all other institutions/PSUs and self-governing bodies are also covered by the scope of the rule.”
Significantly, the applicant had relied on a judgment of the CAT in the case of Dr Vrinda V. Khole v Indian Council of Medical Research, in which it was held that when the applicant’s husband was appointed Vice-Chancellor of Mumbai University, the applicant was still entitled at HRA.
The Court however specified that the said judgment was not a judgment in rem, but that it was limited to the case in question and had been delivered in respective facts and circumstances.
The Court also noted that in this case the applicant had not claimed the HRA for the period he was residing with his wife and it was only when he moved to separate rented accommodation that he claimed the HRA.
Drawing an adverse inference from the same, the bench observed,
“it is believed that the accommodation allocated to the applicant’s wife is not covered by rule 5(c)(iii), and even though the applicant is residing with his wife, he was still entitled to HRA, so why did he not had not claimed the HRA for the period during which he resided with his wife from July 2003 to April 2007 in the official accommodation which had been allocated to him. The Applicant’s failure to claim the HRA during the said period clearly establishes that he was well aware that if he was staying in the accommodation allocated by IGNOU to his wife, he could not claim the HRA.“
Finally, the Court observed that tthis is not a case where the petitioner can claim that he was an innocent victim of the circumstances, but rather a case where the petitioner himself created the circumstances which led his employer to believe that he was entitled to claim HRA and later when it was realized that the petitioner was not entitled to claim the same, the employer had no choice but to seek advice from the Department of expenses and, in accordance with the advice provided by the Department of Expenditure, the additional payment from HRA was refused in April 2017 and the earlier amount was ordered to be recovered.
“The order made by the department is neither harsh nor arbitrary and it does not override the employer’s right to recover money which was not paid under a misconception rather on the basis of an active conduct of the petitioner to write a letter dated 15.05.2007 intentionally creating a situation due to which the department was compelled to release him HRA for the period in question,“, he judged, rejecting the petition.
Case Title: Jayabrata Bose v. Indian Union
Quote: 2022 LiveLaw (Deleted) 146