LawyerServices Judgment:- KUHELI ROY & OTHERS V/S THE STATE OF WEST BENGAL & OTHERS
Date:- Tuesday, December 15, 2015
Court:- High Court of Calcutta
Judges:- THE HONOURABLE MR. JUSTICE SAMAPTI CHATTERJEE
Advocates:- Debjani Sengupta, Julekha Khatun, Tiyasa Banerjee. State P.K. Datta, Sr. Standing Counsel, Supratim Dhar.
September 2015 issued by the District Inspector of Schools (S.E.) Kolkata whereby teachers of the Bagbazar Multipurpose Govt. Sponsored Girls’ High School along with other eleven enlisted schools under the concerned District Inspector of Schools (S.E.) Kolkata have been directed to refund the money enjoyed under the H.R.A. (House Rent Allowance) head from July 2012 till June 2015 and by the subsequent letter dated 10th September 2015 issued by the District Inspector of Schools (S.E.) Kolkata whereby teachers of the said School along with other eleven enlisted schools under the concerned District Inspector of Schools (S.E.) Kolkata have been directed to disclose the H.R.A. (House Rent Allowance) of their spouses working in private organization. Ms. Debjani Sengupta learned Advocate appearing for the petitioners submits that from the ROPA 1981 till ROPA 2009 the Government time to time passed order to that effect that if both the spouses i.e. husband and wife are working under Government or Semi-Government or Central Government or the public undertaking or local body their ceiling would be Rs.1000/- at present 6 000/-. But surprisingly by the impugned order the teachers whose husbands are working in private organisation and they have been provided with house rent under H.R.A. head they have been debarred to enjoy the H.R.A. from the state authority not only that by the impugned order dated 3rd September 2015 the petitioners have been asked to refund the amount enjoyed by them since July 2012 till date. Ms. Sengupta learned Advocate for the petitioners submits that this act on the part of the Government is wholly unfair unjust and very much contrary to the Articles 14 16 of the Constitution of India. Per contra Mr. Datta learned Senior Standing Counsel appearing for the State submits that it is not new to the petitioners as has been projected by Ms. Sengupta learned Advocate appearing for the petitioner. The said order was issued long back on 9th July 2012 and the petitioners are well aware of the facts. Mr. Datta learned Senior Sanding Counsel appearing for the State further contends that by Memorandum dated 9th July 2012 issued by the Secretary Finance Department Government of West Bengal Government has already taken decision to that effect that the spouses who are working in a private organisation where H.R.A. is allowed as a separate element then H.R.A. of the spouses shall be taken into account as done in the case where spouse is employed in any Government or Semi Government organisation. The extract of the Memorandum dated 9th July 2012 is quoted below:- “GOVERNMENT OF WEST BENGAL Finance Department Audit Branch Writers’ Building Kolkata-700001 No.5839-F(P) Kolkata the 9th July 2012 MEMORANDUM In the matter of drawal of HRA by both husband and wife a question has arisen if the same drawn by the spouse of a State Government employee in the employment of a private organization will be taken into account for deciding the ceiling as per Para 11 of Finance Department Memo No.1691-F dt. 23.02.2009. The matter has been examined with reference to Rule 6(a) (i) of Appendix 20 of WBSR Part-II which read as “In a case where the husband or wife is a State Government or of Central Government or any other State Government or of an educational institution or a local body etc. the allowance at usual rate will be admissible to both of them without reference to rent certificate.” The amount as mentioned therein must be within the prescribed ceiling as prescribed by the Government from time to time. Presently it is as used in the said Rule has wider application and is not restricted to employees of Central or State Government or educational institutions or local bodies but includes others also. Now with a view to removing the confusion persisting in the matter the undersigned is directed by order of the Governor to say that Governor is pleased to clarify that as the spirit of the existing provision of the rules goes in the matter of granting HRA to a State Government employee whose spouse is working in a private organisation where HRA is allowed as a separate element the HRA of the spouse shall be taken into account as done in the case where spouse is the employee of any Government or Semi-Government organization. This will take immediate effect. Sd/- A.K. Das Secretary” Considering the submissions advanced by the learned Advocates for the respective parties and perusing the nature of the impugned order dated 3rd September 2015 and 10th September 2015 issued by the
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District Inspector of Schools (S.E.) Kolkata this Court prima facie satisfied that there is some substance in the argument of Ms. Sengupta which deserved that some protection should be given to the petitioners. Therefore respondent authorities are restrained from giving any effect or further effect to the impugned order dated 3rd September 2015 issued by the District Inspector of Schools (S.E.) Kolkata and 10th September 2015 issued by the District Inspector of Schools (S.E.) Kolkata until further order in respect of the five petitioners of the said Bagbazar Multipurpose Govt. Sponsored Girls’ High School. It is needless to mention that respondents are henceforth restrained from deducting H.R.A. from the monthly salary of the petitioners. Respondents are directed to file affidavit-in-opposition by two weeks after reopening from ensuing Christmas vacation reply if any one week thereafter. This order is only applicable to the five petitioners concerned. Let the matter appear in the monthly list of February 2016. Liberty to mention. Deficit Court fees if any in respect of the petitioner Nos. 2 to 5 should be deposited by tomorrow. Let photostat plain copy of this order duly countersigned by Assistant Registrar (Court) be supplied to the learned advocates for the parties on usual undertaking.
