Praveen Yadav and Ors. v. Union of India and Ors.

1. The nine petitioners in the above captioned first petition [W.P.(C) 11083/2019] are group Officers in Grade-A in the Border Security Force (‘BSF’) and are holding posts in the rank of Assistant Commandant, Deputy Commandant and Second-in-Command. 17:16

2. It is averred in the petition [W.P.(C) 11083/2019] that BSF is entrusted with the responsibility to guard the Borders of the Indian Territory, sensitive LWE areas, North East and other parts to maintain law and order and for this, a large of the force is deployed in far flung locations where there is no proper infrastructure or accommodation for the families. Despite construction of the family accommodations, petitioners and other similarly situated officers are still not provided with the Government accommodation at the place where they are posted or the locations where the separated family accommodations have been constructed. The petitioners and similarly situated personnel, therefore, face problems in keeping their families at the place of their postings; especially at the border or difficult areas where there is lack of basic education and medical facilities.

3. According to petitioners, in the year 1999 the Government of India had approved construction of separate family accommodations with the purpose that if the Officer is not getting accommodation at the place of his posting, he shall be entitled to a separate family accommodation, at various locations where the BSF has constructed houses, by paying 10% of the standard rent. Further, despite the aforesaid position, the petitioners and other similarly situated persons are not provided Government Accommodation nor they are being paid House Rent Allowance for keeping their families at different locations. However, based upon the representations of the petitioners and similarly situated persons, the competent authority under the Seventh Pay Commission recommended that the personnel of the uniformed services can keep their families at any 17:16 location and they would be paid HRA for the same. However, the aforesaid recommendations were confined to the Personnel Below Officer Rank (‘PBOR’) but denied to the Group-A officers. Thereafter, respondents issued the OM order dated 31.07.2017.

4. Aggrieved against the aforesaid order dated 31.07.2017, petitioners preferred a Representation dated 07.11.2017 praying for grant of similar benefit as has been granted to the PBORs, which was forwarded to the Ministry of Home Affairs for consideration. However, vide Signal dated 15.03.2018 the same was rejected by the MHA. Vide this petition, petitioners have challenged the aforesaid OM dated 31.07.2017 as well as Signal dated 15.03.2018 passed by the MHA; to the extent it is confined to the PBORs with the prayer to include petitioners and similarly situated personnel for grant of HRA.

5. The nine petitioners in the above captioned second petition [W.P.(C) 3370/2020] are also Group-A Officers, holding the rank of Assistant Commandant in Central Reserve Police Force (‘CRPF’). Petitioners have averred that under the service conditions and entitlement and by virtue of Guidelines dated 30.11.2015, petitioners are entitled to allotment of Government accommodation in their particular office based upon their entitlement. Since the number of officers entitled for Government accommodation is higher than the accommodation available in the location, the respondents grant outliving permission with HRA to the officers after obtaining a No Accommodation Certificate (‘NAC’) from the Directorate of Estate. The petitioners have averred that not everyone in the unit is entitled to get NAC and only the HRA of the 17:16 location, where group centre is located, is provided if one has the rented accommodation and rent agreement. As large numbers of personnel are not in a position to keep their families in their group centre due to social and language problem, many of them keep their families in different places other than their group centre where good medical and education facilities are available. However, according to petitioners, they are not being paid HRA for keeping their families at different locations. A proposal was, therefore, made to the Competent Authority to permit the petitioners and similarly situated personnel to keep their families at any location and be paid HRA for the same. According to petitioners, the Competent Authority under the Seventh Pay Commission accepted the aforesaid proposal in respect of PBOR but denied the same to Group- A Officers like the petitioners. Thereafter, respondents issued OM dated 07.07.2017 and also order dated 31.07.2017 with regard to grant of HRA. Petitioner further claims that another OM dated 31.01.2020 incorporating the provisions of HRA in respect of PBORs but excluding the Officers, was again issued by the respondents. Aggrieved by the OMs dated 31.07.2017 and 31.01.2020 issued by the respondents to the extent that it only grants benefit of HRA to PBORs only, the present petition has been filed with the prayer to extend it to Officers also.

6. Since the grounds urged and relief sought in the above captioned two petitions are similar, therefore, with the consent of learned counsel for the parties, these were heard together and are being disposed of by this common judgment.

7. Learned counsel appearing on behalf of petitioners contended 17:16 before us that while issuing the aforesaid OMs, the respondents have failed to appreciate the nature of duties and place of postings of petitioners, which on occasions do not even have basic amenities to keep their families, including children, with them and so, the respondents cannot deny grant of HRA for the place where petitioners and such like officers keep their families. Attention of this Court was drawn to Clauses- 8.7.23, 8.7.24, 8.7.26 of the Seventh Pay Commission to submit that the competent authority itself was of the view that the personnel of uniformed services are always unique and, therefore, it cannot be accepted that the benefit of HRA can be restricted to the PBOR. Learned counsel submitted that in a somewhat similar situation, this Court in decision in Dev Sharma, Dy. Comdt. of ITBP Vs. UOI & Anr. 2019 SCC OnLine Del 6797 has struck down the different age of superannuation from Constables to Commandants and DIG to DG, for being violative of Article 14 and Article 16 of the Constitution of India. Learned counsel also submitted that if the benefit of HRA has been extended to the PBORs, the Officers deployed in paramilitary forces also work under the same conditions and so, the benefit of HRA cannot be denied to the Officers. Lastly, learned counsel for petitioner submitted that the OMs dated 31.07.2017 and 31.01.2020 deserve to be set aside to the extent that benefit of HRA be also extended to the Officers irrespective wherever their families reside.

8. To the contrary, learned Central Government Standing Counsel (‘CGSC’) submitted that the representation filed by the petitioners seeking grant of HRA was considered in the light Office Memorandum No. II-270 12/35/CF-3396486/20 17-PF-I dated 31.07.2017 issued by the 17:16 Government of India, Ministry of Home Affair, Police-II Division (PF-I Desk) and Signal No. P.I-1I2017 dated 08.09.2017 in respect of Seventh Pay Commission issued by the DIG (Adm) Dte. CRPF and under other provisions of law. It was submitted that the respondents have only implemented the recommendations of the Seventh Pay Commission, which is a policy decision under the instructions of Government of India. Learned CGSC next submitted that the Seventh Pay Commission recommended relaxation of HRA norms only in respect of PBORs.

9. Further submitted that in terms of Rule 41 of CRPF Rules, 1955, all members of the Force, other than the officers, who are required to reside at or near the place of their duty for the proper discharge of duty, shall be provided with rent free accommodation or house rent allowance in lieu thereof, limited to the actual amount or house rent paid by the member concerned subject to a maximum of 10 percent of pay and subject to the condition that the accommodation is conveniently near to the premises in which their regular duties have to be performed.

10. Learned CGSC submitted that vide OM No.II.27012/35/CF- 3396486/2017-PF-I dated 31.07.2017, the Ministry of Home Affairs has sanctioned provision of compensation for housing to PBORs who are not provided with rent free accommodation or sanctioned HRA in accordance with Ministry of Finance OM No.2/5/2017-E-II(B) Dated 7.07.2017 and thereby, all the existing orders for grant of Compensation in Lieu of Quarters (‘CILQ’) and Family Accommodation Allowance (FAA) to CAPF personnel stood superseded. Lastly, it was submitted that the Officers of the force are allowed to keep their families at some safe 17:16 location at Group Centers or alike places where proper education & health facilities are available and they are not entitled to get separate family accommodation at any location as per their choice as no such provision exists in the existing rule and thus, these petition deserve to be dismissed.

11. In rebuttal, learned counsel for petitioners submitted that petitioners are entitled to Government Accommodation. However, they are posted in field areas, so their families have to live at their declared GC but also since high number of officers are there than the accommodations available in the attached GC, the respondents are granting outliving permission subject to issuance of ‘No Accommodation Certificate’ by the Directorate of Estates. But the Officers are granted HRA of the location where their group is located; whereas subsequent to recommendations of the Seventh Pay Commission PBORs, who are posted in the field areas and are carrying similar duties as the petitioners, are paid HRA for keeping their families at any location as per their convenience. Thus, respondents cannot be permitted to keep double standards/yardsticks for employees in the same force and posted in the same area.

12. To buttress his arguments, learned counsel for petitioners relied upon decision of Supreme Court in the case of Prem Chand Somchand Shah Vs. Union of India 1991 (2) SCC 48 to submit that right of equality implies to similarly situated persons and they have to be treated alike both in privileges conferred and liabilities imposed. Reliance was also placed upon decision of this Court in Govind Kumar Srivastava v Union of India and Ors. 2019 SCC OnLine Del 6425 to submit that respondents refusal to grant HRA benefit to the petitioners and such like Officer is not 17:16 only discriminatory but violative of Article 14 of Constitution of India. Lastly, learned counsel for petitioners submitted that the arbitrary action of respondents, discriminating by creating a class within class, deserves to be set aside.

13. The submissions advanced by both the sides were heard at length and upon perusal of the material placed on record we find that Office Memorandum dated 31.07.2017 notes as under:- “Consequent upon the acceptance of the recommendations of the 7th Central Pay Commission by the Government vide Ministry of Finance’s Resolution No. 11-1/2016-IC dated 6th July, 2017, the President is pleased to sanction provision of compensation for housing to Personnel Below Officer Rank (PBORs) of Central Armed Police Forces (CAPFs), Assam Rifles and NSG, who are not provided with rent free accommodation or sanctioned HRA in accordance with Ministry of Finance OM No.2/5/2017-E.II (B) dated 7th July, 2017…..”

14. Further the respondents vide Signal dated 15.03.2018 notified as under:- “FROM ADM-II.

PROVISION OF COMPENSATION FOR HOUSING TO THE OFFICERS OF CAPFs ON THE LINES OF COMPENSATION SANCTIONED TO PBORs.