CHUNNILAL SEN Vs. STATE OF M P

JUDGEMENT

(1.) Since common questions is involved in these writ petitions they were heard together. This order shall also govern the disposal of W.P. No. 9218/2006 (S) and W.P. No. 9219/2006 (S). The facts and documents referred in this order are taken from W.P. No. 9524/2007.

(2.) By this petition under Article 226 of the Constitution of India, the petitioner has challenged the validity of order dated 15-3-2007 passed by respondent No. 2 by which the House Rent Allowance (hereinafter referred to as 'HRA') has been denied to the petitioner, stating that in terms of the instructions issued by the respondent No. 1 HRA is not included in the pay and, therefore, the petitioner will not be entitled to the same. It is the contention of the petitioner that he was being paid the HRA but all of a sudden such orders have been issued withholding the HRA. It is further contended by the petitioner that by filing O.A. No. 598/2002 before the M. P. Administrative Tribunal Bench at Bhopal claiming the benefit of minimum of the pay of the post of Lower Division Clerk/ Assistant Grade-Ill from the date of his appointment of the said post was claimed by the petitioner. The petitioner brought to the notice a decision of the Tribunal rendered in the case of Bharat Darshan Shrivasiava vs. State of M.P. The said original application came before this Court after closer of the Tribunal and was registered as W. P. No. 26702/2003. The said matter was listed before this Court on 4-11 -2004 and this Court after considering the order passed by the Tribunal in Bharat Darshan Shrivastava and others (supra) disposed of the writ petition with a direction to the respondents to consider the claim of the petitioner within a period of six months and if his case was identical to the case of Bharat Darshan Shrivastava , pass an appropriate order and grant the benefit as per the order passed by the Tribunal in the aforesaid case. It is the contention of the petitioner that the claim with respect to HRA was also considered in the case of Bharat Darshan Shrivastava by the Tribunal and it was categorically held that, since the matter relating to grant of such benefit to daily wagers also, has travelled upto the Apex Court and all such orders of the Tribunal have been affirmed, and since the persons like Bharat Darshan Shrivastava were living in their own houses they be granted the benefit of HRA along with the salary. It is contended by the petitioner that in view of the aforesaid the order was passed in his favour on 3-6-2004 and he was extended all the benefits of the minimum of the pay scale available to the post of Assistant Grade-Ill and other allowances payable with the said scale. Accordingly, the petitioner was getting the HRA also. Now contending that the HRA is not the part of the allowances which are sanctioned along with the pay, petitioner will not be entitled to such benefit, the order impugned has been passed which is contrary to the law settled by the Tribunal, affirmed by this Court as also by the Apex Court. Therefore, the prayer is made for quashing of the order impugned.

(3.) The respondents in their return have contended that the definition of 'pay' as given in Fundamental Rule 9 (21) means only the pay, other than special pay or the pay granted in lieu of his personal qualifications, which has been sanctioned for the post held by him substantively or in an officiating capacity or to which he is entitled by reason of his position in a cadre. According to them HRA is not including in the pay and, therefore, as per the aforesaid definition, the person like petitioner will not be entitled to the benefit of HRA. However, relying on the case of Secretary, State of Karnataka and others vs. Uma Devi and others, 2006 4 SCC 1, it has been contended by the respondents that while issuing the directions to make the scheme for regularization of daily wagers, it has been said that the persons like petitioners would be given a minimum of the pay scale of the post on which they are working as daily wagers. It is therefore, submitted by the respondents that the petitioner will not be entitled to the benefit of HRA. Thus, it is contended that the petition is misconceived and is liable to be dismissed.