Full Text
W.P.(0 6202/2015
Through: Mr. V.S.R. Krishna, Advocate.
Through: Mr. Ravi Sikri, Senior Advocate with
Ms. Ayushi Kiran, Advocate.
HON'BLE MR. JUSTICE NAJMIWAZIRI SANJIV KHANNA, J.
For detailed order see WP(C)4679/2015 Ashes Kiran Prasad Vs.
Union OfIndia & Ors. pronounced today.
C
SANJIV KH ^NA, J. NAJMI WAZIRI, J.
FEBRUARY^/ ,2016 ssn ^ 2016:DHC:8981-DB r HIGH COURT OF DELHI
W.P.(C) 4679/2015
Through: Mr. Ravi Sikri, Senior Advocate with Ms. Ayushi Kiran, Advocate.
Through: Mr. V.S.R. Krishna, Advocate.
UNION OF INDIA & ORS. Petitioner . Through: Mr; V.S.R. Kriskia, Advocate.
ASHES KIRANPRASAD Respondent
Through: ;Mr., Ravi Sikri, Senior Advocate with Ms. Ayushi Kiran, Advocate.
These two writ petitions by Ashes Kiran Prasad and the Union of
India (through Secretary Railway Board); Member Staff-Railway Board, General Manager, North Frontier Railway and General Manager, North
Western Railway, impugn a common order dated 13^^ November, 2014, passed by the Principal Bench, Central Administrative Tribunal, Delhi period 30'*^ October, 2003 to 26^^ October, 2007, when the employee was posted on promotion at North-West Frontier Railway, Gauhati, in the
Senior Administrative Grade, he would be entitled to payment of House
Rent Allowance (HRA) at the rates applicable at Patna on the basic pay paid to the employee in the Senior Administrative Grade. The Union of
India was accordingly directed to calculate the difference in the HRA payable, and pay the same within three months from the date of the order.
The Union of India is aggrieved by the aforesaid order. The employee, on the other hand, is aggrieved by the finding of the Tribunal that he would not be entitled to payment of HRA ori his transfer to Jaipur, in the North western Railways (NW Railways) with effect from 27^^ October, 2007 as he was in occupation of government, accommodation. •
JUDGMENT
3. The employee is an officer ofthie Indian Railway Traffic Service and was posted at Patna in the East-Central Railway (EC Railways) before being transferred to Gauhati in;th:e: North-East Fronfier Railway (NF Railway) on promotion to the Senior Administrative Grade. The employee joined the posting atGauhati and remained posted there from 30'*' October, 2003 to 26"^ October, 2007, when he was transferred to North-Western Railway, at Jaipur.,,
4. The employee claims that while at Hajipur, Bihar, he was drawing HRA ofRs.2015/- calculated atthe rate of15% ofhis basic pay inthe scale ofJunior Administrative Grade. The claim, which has been accepted by the Tribunal, was that on being promoted and posted at Gauhati in the Senior Administrative Grade, HRA should be based and computed on enhanced basic pay inthe promotional post. payment of HRA at Hajipur, Bihar in terms of the policy applicable to officers posted to the NP Railway that they would be allowed to retain the allotted quarter at the previous place of posting or the employee would be entitled to draw additional or second HRA at the same rate as paid prior to the officer being posted in the NF Railway.
6. The submission and reasoning, which has been accepted by the Tribunal, is that HRA is paid on a specified percentage of basic pay and this amount would increase every year on account of armual increments or on further promotion and, therefore, HRA would not remain static or fixed. HRA would increase with increments qr when the basic pay is increased. It is pointed out that in'case the employee had been promoted and was granted Senior Administrative Grade at Patiaa arid was thereafter transferred to Gauhatr in NF Rail#a^, he would have drawn a higher HRA. The policy, relied upon by the Uniori "of India, was iniquitous and falls foul of Article 14. Prior to the posting, at Gauhati, when the employee was posted at Hajipur in the East-Central,Railway, a controversy had arisen as to whether the employee should,be paid HRA at Patna rate, where he was residing, or as applicable and payable at Hajipur, Bihar; The Patna rate was higher than the HRA payable at Hajipur. The employee's claim to HRA payable at Patna rate was accepted by.theCentral Administrative Tribunal, Patna and the Patna High Court. The Supreme Court had dismissed the Special Leave Petition.
7. In order to decide the controversy, we would like to first reproduce paragraph 1703 of the Indian Railway Establishment Code, which reads as under:- A-1 30% of actual basis pay drawn A 15 % of actual basis pay drawn B-1 15 % of actual basis pay drawn B-2 15 % of actual basis pay drawn C 7.[5] % of actual basis pay drawn Unclassified 5 % of actual basis pay drawn House Rent Allowance at the above rates shall be admissible to all Railway servants (other than those provided with Government owned/hired accommodation) without reference to the quantum of rent paid, without requiring them to produce any rent receipts. Such railway servants shall, however, be required to furnish a certificate that they are incurring some expenditure on rent/contributing toward rent. House Rent Allowance at the above rates shall also be admissible to.Railway servants living in their own houses subject to their furnishing a certificate that they are. paying/contributing.towards house or property tax or maintenance of the house..:; - NOTE: Where House Rent;Allowance has been allowed under special orders, the same' shall be given as admissible in A-1, A, B-1, and B-2 cities, as the case may be, until issue of orders to the contrary. w - ? (Authority: Railway Eibaird's^let No:E(P&A), II-97/HRA-19 dated340.2005)." • It is pertinent to mention thatPatna is an 'AVclass city and, therefore, an employee posted at Patna is'entitled,tordraw HRA @ 15% of his actual basic pay drawn. As per the case of the employee, the JointHindu Family of which he was a member, had a house/residence andhe had occupied the same on rent at Patna.
8. Relevant portion of the department's letter dated 30^'' June, 2013, which incorporates special provisions in respect of employees transferred to NF a. ' A Railway employee who has all India transfer liability or, in the exigencies of public service, is posted on transfer to the N.F. Railway, excluding Katihar Division, will be permitted to retain railway accommodation allotted to him/her at the last station or his/her posting, on payment of normal rent/single flat rate of licence fee/rent for the first two months and thereafter 1 !/2 times the normal rent/flat rate of licence fee/rent. However, officers posted subsequently to Kathihar Division will continue to get this benefit on personal basis. b. Staff posted to the Kathir Division of N.F. Railway will be governed by the rules and orders, as applicable to the generality of railway employees in regard to retention of quarters and paymeiit. of licence fee/rent therefor. The eligibility to these concessions^ of staff initially posted on transfer to N.F. Railway i)ivisioiis other than Katihar, will cease if and when they ar§. posted to, any station in Katihar Division.";- • - \
9. The Railway Board vide letter No. E (P&A)II-83/[iRA-29 dated 30^'' June, 1984, had examined the question of payment of HRA to railway employees posted in the States ofAssam,iMeghalaya, Nagaland, Manipur etc. and had accorded as under "Sub: Allowance and facilities for Railway.eniployees serving in the States and Union Territories of North Eastern Region- Improvements thereof- ^: The question ofpayment ofHouse Rent Allowance to railway employees who are posted iii the States ofAssam, Mehalaya, Manipur, Nagaland, and Tripura and the Union Territories of Amnachal Pradesh, Mizoram and Andaman & Nicober Islands has been considered and the President is pleased to decide as follows (a) Railway employees who were in occupation of hired private accommodation at the last station of posting before ly V (b) Such railway employees may also be allowed to draw, in addition to (a) above, House Rent Allowance at the rates admissible at the new place of posting in the aforesaid states/Union Territories in case they live in hired private accommodation.
(c) These orders will take effect from 1'' November, 1983
3. This issues with the concurrence of the Finance Directorate ofthe Ministry ofRailways.
4. Hindi version is enclosed."
10. A reading ofthe special provision 8.[2] would elucidate that a railway employee posted on transfer to Railway, except Kafihar Division, is entitled to retain railway acconiniodation:: allotted to him/her at the last station of posting on payment,of\normal rent/single flat rate of licence fee/rent for the. first two months:and.therMer at a rate of one and a half times the normal rent. Letter ofthe Railway Board dated 30'^ June, 1984 relates to railway employees,' who are in occupation of hired private accommodation at the last stationof posting beforebeing transferred to the specified States. Pertinently, there is a clear stipulation that the HRA admissible to them would be that as was last paid at that station. In other words, it would be a static or fixed amount at the said place of posting and would not be enhanced. Clause 'b' of the said letter postulates that an employee can also draw HRA at the rates applicable at the new place of posting, in case he/she lives in a hired private accommodation. Thus, two HRAs become payable to an employee posted in the said States under V
11. The Railway Board by^ asubsequent letter dated 4^^ September, 1986 has clarified that the aforesaid concession in respect of the last station posting granted to arailway servant in terms of the letter dated June, 1984, would not change and would be afixed sum. Relevant portion ofthe said letter reads as under:- SINo.
XX XX Points raised XX Whether the quantum of HRA at the last station where the family continues to stay would change with reference to pay of ' the Railway servants at neW;; place of posting: / XX Clarification XX The concession will be available to the Railways servants, without any change, till the concerned Railway servant remain.posted in North-Eastem Region, and Andamari.. and Nicobar Islands- and the family continues to stay at the last station. Xx
12. At this stage, we would like to reproduce the reasoning given by the Tribunal to allow the prayer and hold, that the, employee would be entitled to HRA for the last station.posting at.the enhanced pay scale. The said reasoning reads:- "8.[2] The Railway Board's letter No.E (P&A) II- 83/HRA-29 dated 30.6.1984 contains the decision of the President that the Railway employees who were in occupation of hired private accommodation at the last station of posting before transfer to any of the States of Assam, Meghalaya, Manipur, Nagaland, and Tripura and the Union TeiTitories of Arunachal Pradesh, Mizoram and Andaman & Nicober Islands, may be continues to stay, would not change with reference to pay of the Railway servant at the new place of posting, nor has it stated that the Railway servant will not be entitled to HRA with reference to his pay at the new place of posting. It has only been clarified that the concession will be available to the Railway servants, without any change, till the concerned Railway servants remain posted in North-Eastem Region and Andaman & Nicobar Islands and the family continues to stay at the last station. That is to say that the concession which has been granted by the Railway Board, vide its letter dated 30.6.1984, will be available without any change, meaning thereby that the terms and conditions for payment of HRA contained in the letter dated 30.6.1984 will remain unchanged. The concession which has been granted by the Railway Board, vide its letter-dated 30.6.1984, is that Railway employees who. were in occupation of hired private accommodation at the last station-of posting before transfer to any of the States of Assam,-Meghalaya,;Manipur, Nagaland, and Tripura and the Union. Terfitories of. Arunachal Pradesh, Mizoram and Andaman ^ Nicobar Islands,:^ allowed to draw HRA admissible to them at that station-. It has not been stipulated in the said: letter.;dated 30.6.1984 that the Railway employee may be allowed to draw the same quantum of HRA which he was getting at the- last station where^ his family continues to stay. As-per Govermnent orders/mles pertaining to payment of HRA to.'Goyeniiherit employees, HRA is payable with reference to the pay. drawn by them from time to time and there is no concept, of any fixed HRA payable to regular employees because their;pay varies from time to time on grant of increments and/or promotion from lower post to higher post and/or reversion from higher post to lower post. Therefore, non payment of HRAto the applicant withreference to his pay drawn in N.F.Railway, Guwahati, at the rate applicable to Patna, does not stand to reason; besides being contrary to the decision of the President conveyed in the Railway BoardI s letter dated 30.6.1984 (ibid)." It is difficult to appreciate and understand the logic behind the said same as paid to the said employee at the last station of posting before he was posted to the States ofAssam, Meghalaya, Nagaland, Manipur, Tripura etc. In other words, the letter grants a concession and indulgence to the employee as he is paid the HRA at the rate which was being paid at the place ofhis last posting. The amount so fixed depends upon the basic pay being paid to the employee at the place ofhis last posting, before he was transferred and posted to the States of Assam, Meghalaya, Nagaland, Manipur, Tripura, etc. This payment does not deny and the employee would get the HRA payable to him on his posting to the States of Assam, Meghalaya, Nagaland, Manipur, Tripura etc. The current HRA would accordingly depend upon the basic pay being/drawn by him at the new place of posting. Iri this way, the employee does not suffer and continues to get HRA on his current basic-vpay while.being posted to the States of Assam, Meghalaya, Nagaland,",Mahip&^^ Tripura etc. This is in terms of paragraph 1703 of the Indian RaHwayvEstablishment Code.' By way of concession, the employee also continues to draw the HRA, which he was getting at the last place of postin'g as.per the basic pay he was then drawing. The said concession is certainly not iniquitous and does not fall foul of Article 14. It also does not fail, foul of.paragraph 1703 of the Indian Railway Establishment Code. The said paragraph does not, in fact, permit payment of two HRAs, which became payable in terms of the Railway Board letters dated 30"" June, 1984 and 4^*^ September, 1986.
13. It is also difficult to perceive and accept the argument that payment of the second HRA on the basis of pay last drawn at the earlier place of posting is iniquitous or absurd. There is a rationale behind the said IT applicable at the new place of posting in the States of Assam, Meghalaya, Nagaland, Manipur, Tripuraetc. The saidHRA at the new place of posting would depend upon his current/new basic pay. Fixation of pay scales etc., are matters of policy, which take into account several factors. Normally, Courts do not interfere in fiscal matters like fixing rates ofHRA etc., unless the policy is ex facie arbitrary and displays apparent discrimination. The criteria for payment of two HRAs in the present case would be identical and equally apply to all employees, who get posted in the specified States. Paragraph 1703 of the Indian Railway Establishment Code quoted above shows that HRA can vary from 5% to 30% of the actual basic pay drawn. It is dependent upon the place of posting and the pay scale. Transfers are incidents of employment,and not.by way of punishrnent. If we accept the reasoning of the Tribunal, theii rates,of,HRA-should beidentical or the rate of HRA should also change if the.farhily'of the employee takes a rented accommodation at another or a different place. Mere possibility of incongruities in some odd situations would not make the policy/letter violative ofArticle 14 ofthe Cgnstitutioh, as was observed bythe Supreme Court in State of Karnataka Another v. Mangalore University Non- Teaching Employees Association & Others ((2Q){)2) 3 SCC 302:- "10 The complaint-based on Article 14 of the Constitution cannot be judged by adopting a doctrinaire approach orby having regard to individual cases. It is not prudent or pragmatic to insist on a matheniatically accurate classification covering diverse situations and all possible contingencies in view of the inherent complexities involved in fixing the scales of allowances based on the places of work While formulating such rules it is difficult to envisage all f If should not take note of individual cases of hardship and afford relief wherever such relief is genuinely needed; but the rule or the provision does notbecome bador obnoxious to Article 14 for the reason that the criterion adopted in the case of an 'A' Class city is not extended to a 'B' or 'C Class city." In light of the aforesaid, the policy of the Railways as expressed in the letters cannot be held to be discriminatory or arbitrary.
14. A reading of the order dated 15^"^ January, 2008 passed in CWJC No. 10123 of 2006, Union of India & Ors. Vs. Ashes Kiran Prasad & Anr. would indicate that the challenge in the writ petition was to the order of the Central Administrative Tribunal dated 1^' December, 2014, by which the employee was directed to be paidTHlA for occupation of the house at Patna at the rate applicable to house reht allowance at Patha, though, the employee was posted at Hajipur. The Gdi^ noticed that.the employee had been permitted to hire an accomrnodation at Patna due to paucity of government accommodation at Hajipur.' In these circumstances, the employee had submitted that he had taken a house, on rent at Patna, which belonged to a Joint Hindu Family/ Hindu' Undivided Family of which he was a member and, therefore, he was entitled to payment of HRA. Attention was drawn to one lirie in the said.order to the effect that "The House Rent Allowance for the permissible occupation of own house at Patna should commensurate with that", we would observe is not the sole basis of making the said finding and granting relief to the employee. The primary consideration was that the employee, though posted at Hajipur, Bihar, couldnot be provided accommodation due to paucity of government accommodation at Hajipur. It cannotbe said that this judgment or decision
15. There is another reason why the writ petition filed by the Union of India should succeed. As noticed above, the employee was posted and had remained at Gauhati, from 30^^ October, 2003 till 26'^ October, 2007. The OA claiming the arrears was filed under Section 19 of the Administrative Tribunal Act, 1985, in the month of December, 2013. The prayer for payment of arrears of enhanced HRA for the aforesaid period was clearly barred by limitation. Section 21 of the aforesaid Act states that a Tribunal shall not admit an application under clause (a) and (b) if they are barred by limitation, i.e. not filed within one year from the date on which the final order is made, or where an appeal or representation is made as mentioned in clause (b) of sub-section(2) to section 20 and a period of six months has expired without final order beingvmade,,and within one year from the date of expiry ofthe said period of six -months...
16. The employee, in view of the; aforesaid position, had relied on the decision in Union ofIndia and Ors. Fs. Tarsem Singh, (2008) 8SCC 648, which examines principles underlying continuing wrongs and recurring/successive wrongs. A "continuing Wrong" refers to a single wrongful act which causes a continuing injury. "Recurring/successive wrongs" are those which occur perio.diGally,.each wrong giving rise to a distinct and separate cause of In Balakrishna S.P. Waghmare vs. Shree Dhyaneshwar Mahamj Sansthan, AIR 1959 SC 798, it was observed that the very essence of a continuing wrong is that the offending act creates a continuing source of injury and renders the doer of the act responsible and liable for continuance of the said injury. If the wrongful act causes an injury which is complete, there is no continuing wrong even reference was made toM.R. Gupta Vs. Union ofIndia, (1995) 5 SCC 628, wherein it is observed that so long as an employee is in service, a fresh cause of action arises every month, when he is paid monthly salary onthe basis ofa wrong computation made contrary to the rules and insuch cases, he would be entitled to get his pay properly fixed for the future and the question of limitation would arise for recovery of the arrears. His consequential claims such as promotion etc. may be subject to laches/limitation. In Tarsem Singh (supra), it was held as under:- "7. To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writpetition) or limitation (where remedy is sought by an applica;tion to the Administrative Tribunal)., One of the exceptions to the said rule is cases 5 relating to: a continuing;;wrong.rWhere a service related claim is based on a continuing wron^ can be granted even if there is a long delayin; seekihg remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to tlie, exception. If the grievance is in respect of any order or,;administrative decision which related to or affected several- others also, arid if the re-opening of the issue would affect the settled rights'of third parties, then the claim will npt be entertained. For example, if the issue relates to payment or re-fixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. In so far as the consequential relief of recovery of arrears for a past period, the principles relating to recurring/successive wrongs will apply. As a consequence. High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing ofthe writ petition." \ > wrongful act and what may be described as the effect of the said injury. The alleged wrongful act, as per the employee, had occurred during the period 30'^ October, 2003 till 26'^ October, 2007 when the "correct" HRA was not paid to him. There was no continuance or recurrence thereafter, though the effect of the "short" payment would continue, till payment as claimed, is made. The OA in question was filed only in December, 2013 and was, therefore, clearly barred by limitation. Even if there was recurrence reccurrence, limitation ofthree years would apply. ^ 17. We are conscious and aware that the plea of limitation was not specifically raised by the Union of India in their reply, which to us was perplexing and confusing..What isj however, apparent,is that the employee in the OA had mixed ^p two caus^s/of^action, which included the second relief regarding the payable.consequent to the employee sposting to Jaipur in North-Western Railway,with effect from October, 2007. The second relief prayer is the subject mattet of W.P. (C) No.4679/2015 titled Ashes Kiran Prasadvs. Union ofIndia&Ors. We find that the impugned order is silent and does not exarnine.and.' decide the contentions raised before us on the question of payment of double HRA to the employee at Jaipur. We do not know whether the: said contention, in so many words as raised before us, was in fact raised beforethe Tribunal. However, we can treat the prayer as rejected as the same has not been allowed, albeit without discussion and elucidation.
18. In these circumstances, we would remit the question raised before us relating to payment ofHRA for the period after October, 2007 to the Tribunal, for a fresh decision on merits. We clarify that we have not -< period between 30'" October, 2003 to 26® October, 2007, when the employee was posted at C-auhati in NF Railway would not be examined as we have allowed WP(C) No. 6202/2015 filed by the Union of India and held that the employee Ashes Kiran Prasad would not be entitled to enhanced or higher HRA.
19. The writ petitions are accordingly disposed of. In the facts of the present cases, there will be no order as to costs. FEBRUARY^i,2016 NA/ssn (SANJIVKHANNA) JUDGE AZIRI) % JUisGE $-42 & 43 * IN THE HIGH COURT OF DELHI AT NEW DELHI +. W.P.(C) 4679/2015 ASHES KIRAN PRASAD Petitioner Through: Mr. V.S.R. Krishna, Adv.
VERSUS
UNION OF INDIA & ORS Respondent Through: Ms. Ayushi Kiran, Adv. + W.P.(C) 6202/2015 UNION OF INDIA & ORS Petitioner Through:. versus ASHES KIRAN PRASAD Respondent Through: Mr. V.S.R. Krishna, Adv. CORAM: ORDER % 15.03.2016 V y Typographical error in paragraph No. 18 ofourjudgment dated 29.02.2016 has been corrected and initialled in today's date. Corrected copy will be uploaded on the website. -1U SANJIV KHANNA, J NAJMI WAZIRI, J