Dr. B. Sukumar v. National Institute of Technology Calicut

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN TUESDAY, THE 5TH DAY OF APRIL 2016/16TH CHAITHRA, 1938 ## W.P.(C).No.9624 of 2016 (C) ------------------------------------------------- PETITIONER(S):- ------------------------- DR.B.SUKUMAR, S/O.SHRI.S.B.PILLAI, AGED 54 YEARS, REGISTRAR, NIT CALICUT, NIT CAMPUS P.O., CALICUT - 673 601. BY ADVS. SRI.G.SHRIKUMAR (SENIOR ADVOCATE) SRI.JOHN JOSEPH(ROY) SRI.JEFRIN MANUEL SMT.MEDONA LOPEZ RESPONDENT(S):- --------------------------- 1. NIT CALICUT, REPRESENTED BY THE DIRECTOR, NIT CAMPUS P.O., CALICUT - 673 601. 2. BOARD OF GOVERNORS, REPRESENTED BY THE CHAIRPERSON, NIT CALICUT, NIT CAMPUS P.O., CALICUT - 673 601. 3. THE DIRECTOR, NIT CALICUT, NIT CAMPUS P.O., CALICUT - 673 601. R1 TO R3 BY ADVS. SRI.SHYAM PADMAN SRI.C.M.ANDREWS SMT.BOBY M.SEKHAR. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05-04-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## WP(C).No.9624 of 2016 (C) -------------------------------------- ## **APPENDIX** ## PETITIONER(S)' EXHIBITS - ----------------------- - P1:TRUE COPY OF THE APPROVAL OF THE RULES AND RELEVANT PAGE OF NITC STAFF ACCOMMODATION ALLOTMENT RULES. - P2:TRUE COPY OF THE MINUTES OF 28TH BOG DTD 9/1/2015 OF THE IST RESPONDENT NIT. - P3:TRUE COPY OF THE MINUTES OF 29TH BOG DTD 21/11/2015 OF NIT CALICUT. - P4:TRUE COPY OF THE AGENDA OF 30TH GOB DTD 5/2/2016 OF THE NIT CALICUT - P5:TRUE COPY OF THE COMMITTEE REPORT OF THE INQUIRY COMMITTEE. - P6:TRUE COPY OF THE MINUTES OF 30TH BOG DTD 5/2/2016 OF THE NIT CALICUT. - P7:TRUE COPY OF THE REPRESENTATION SUBMITTED BEFORE THE 3RD RESPONDENT DTD 24/2/2016. - P8:TRUE COPY OF THE PAY SLIP OF THE PETITIONER AFTER DEDUCTING HRA, FOR THE MONTH FEBRUARY 2016. - P9:TRUE COPY OF THE PAY SLIP OF THE PETITIONER AFTER DEDUCTING HRA, FOR THE MONTH FEBRUARY 2016. - P10:TRUE COPY OF THE OFFICE ORDER DT.26.2.2016 REGARDING APPOINTMENT OF T MEMBER COMMITTEE. - P11:TRUE COPY OF THE NOTE OF EXECUTIVE ENGINEER DT.20.02.2013 OF THE 1ST RESPONDENT NIT REGARDING REVISION OF THE RENT OF THE SINGLE ROOM SUIT. RESPONDENT(S)' EXHIBITS:- ----------------------------------------- - R1(a) TRUE COPY OF THE INVITATION DTD.15.01.2014 PUBLISHED BY THE FIRST RESPONDENT. - R1(b) TRUE COPY OF THE APPOINTMENT LETTER DT.11.06.2014 ISSUED TO THE PETITIONER. WP(C).No.9624 of 2016 (C) - 2 - - R1(c) TRUE COPY OF THE OFFICE MEMORANDUM NO.6/8/2009-ESTT (PAYII) DATED 17.6.2010 ISSUED BY THE DEPARTMENT OF PERSONNEL & TRAINING, MINISTRY OF PERSONNEL PUBLIC GRIEVANCES & PENSIONS, GOVERNMENT OF INDIA. - R1(d) TRUE COPY OF THE STAFF ACCOMMODATION ALLOTMENT RULES. - R1(e) TRUE COPY OF THE OFFICE MEMORANDUM NO.2(25)/2004-E.II(B) DATED 15.12.2011 ISSUED BY THE DEPARTMENT OF EXPENDITURE, MINISTRY OF FINANCE, GOVERNMENT OF INDIA. - R1(f) TRUE COPY OF THE COMMUNICATION DT.29.02.2016 ISSUED TO THE PETITIONER. - R1(g) TRUE COPY OF THE RELEVANT PAGES OF THE MINUTES OF THE 29TH MEETING OF THE BoG. - R1(h) TRUE COPY OF THE EMAIL DT.23.02.2016 REGARDING APPROVAL FOR CIRCULATION. - R1(i) TRUE COPY OF THE EMAIL DT.23.02.2016 ATTACHING THE DRAFT MINUTES. - R1(j) TRUE COPY OF THE EMAILS DTD.25.02.2016 AND 26.02.2016. - R1(k) TRUE COPY OF PROCEEDINGS DTD.23.01.2002 NO.P1/2356/99 FIXING RATE OF RENT. - R1(l) TRUE COPOY OF THE CASH BILL FOR LODGING DT.06.03.2016 PERTAINING TO THE PETITIONER. vku/- [ true copy ] ## K. Vinod Chandran, J -------------------------------------W.P.(C) No.9624 of 2016-C --------------------------------------Dated this the 05th day of April, 2016 ## **JUDGMENT** The petitioner is aggrieved with Exhibit P6 decision of the Board of Governors, by which the petitioner has been declined permission to stay in the Guest House of the National Institute of Technology and the decision taken to vacate the guest house latest by 15-03-2016. The decision as to whether petitioner is entitled to House Rent Allowance [for brevity “HRA”] for the period in which he continued in the Guest House, was deferred. 2. The petitioner contends that the petitioner has not been regularly staying in the Guest House and that only considering the workload on certain days the petitioner was constrained to stay back in the premises of the Institute itself and there is no question of declining HRA to the petitioner. The petitioner also asserts his right to continue in the Guest House, since he does not have an alternate accommodation in the vicinity of NIT Campus. As of now there is no recovery of HRA proposed by Exhibit P6. However, the learned WP(C) No.9624 of 2016 - 2 - Counsel for the NIT contends that they have sought for legal opinion as to whether HRA can be recovered or not. 3. The issue has to be considered on the basis of the Staff Accommodation Allotment Rules. It is admitted that there is no quarter allotted to the petitioner. The Rules would indicate that the petitioner being in the post of Registrar, is entitled to a Type B Quarter/Flat. Exhibit R1(d) is the Staff Accommodation Allotment Rules produced by the official respondents. Clause 8 of Exhibit R1 (d) indicates that persons having Grade Pay of Rs.10,000/- are eligible for Type B Quarter/Flat. The petitioner, a Registrar, is in the scale of Pay Band IV (Rs.37400-67000) + Grade pay of Rs.10,000/-, as is indicated in the notification produced at Exhibit R1(a) and the appointment letter itself, produced at Exhibit R1(b). The Rules applicable on transfer on deputation/foreign service of Central Government employees is Exhibit R1(c), which indicates that all allowances and benefits admissible to regular employees of corresponding status would be admissible to the officer on deputation/foreign service. The petitioner being Registrar of the Institute, is definitely entitled to Type B Quarter/Flat. WP(C) No.9624 of 2016 - 3 - 4. It is also an admitted fact that the petitioner has not applied for a quarters. The petitioner's contention is that the petitioner is staying in a room in a Guest House and the same is covered by Clause 12 of Exhibit R1(d). While the first limb of Clause 12 of Exhibit R1(d), disables any employee who has accepted allotment of residence for accommodation or has been allotted the same; from drawing HRA, an employee who is residing in a single room/single room suite accommodation paying rent at market rate or paying standard rent is eligible to draw HRA. The petitioner contends that he having been continued in a single room in the Guest House, is entitled to draw HRA. However, that does not arise for consideration since the question of recovery of HRA has not been decided. 5. As of now, the question is of continuance of the petitioner in the Guest House. The learned Counsel for the respondent-NIT contends that the Guest House, by the very name, indicates that the same is intended for persons visiting the Institution on transit and cannot be regularly granted to the employees of the Institute. It is also specifically averred in the counter affidavit dated 31.03.2016 filed in I.A.4391 of 2016 that the WP(C) No.9624 of 2016 - 4 - petitioner had been exclusively utilising Room 'C' in the Guest House between 16.07.2014 till 11.12.2015 and Room No.17 from 15.12.2015, on being shifted to that room consequent to maintenance of the other room. It is averred that the petitioner has been keeping his belongings in the rooms, even while not in occupation during the respective periods disabling allotment of the said rooms to other persons on transit. In any event, the petitioner cannot claim any right to be continued in the Guest House. 6. The question of whether the petitioner, an employee of the Institute, is entitled to be granted a room in the Guest House would definitely have to be considered by the Board of Governors and in the present case, in Exhibit P6 it has been specifically found that a person holding the post of Registrar should not continuously use the Guest House which is not intended for the stay of the employees. This Court does not find any arbitrariness or illegality in the same, especially in the context of the specific contention taken by the NIT that there are available quarters, which, as per the Allotment Rules, is eligible to the petitioner. 7. Exhibit R1(d) speaks of application for allotment of residence in Clause 13 and requires an employee, who wants an WP(C) No.9624 of 2016 - 5 - Institute accommodation, to submit an application, at any time. The allotment of residence is also on the basis of eligibility and seniority, as is indicated at Clause 14. A waiting list of applicants has to be maintained by the Engineering Unit when no quarters are available for such allotment. In the present case it is the case of the respondent-Institute that there are four Type-B Quarters available and the petitioner, on application, would be allotted one of these. The petitioner's contention is that none of them are habitable. However, Clause 14 of Exhibit R1(d) specifically speaks of transfer of residence in the event of the quarters being a poorly maintained residence as certified by the Engineering Unit. In such circumstance, if the petitioner makes an application, the respondent would see that a properly maintained quarter is allotted to the petitioner and in the event of the controversy raised herein before such allotment, the Engineering Unit would verify whether the quarter is properly maintained as is indicated at Exhibit R1(d) and issue a certificate to the NIT. 8. The further contention taken by the petitioner is that even if he does not make an application it was incumbent upon the NIT to grant a quarters especially since he is occupying the post of WP(C) No.9624 of 2016 - 6 - Registrar. This Court does not find any such condition in the appointment order and it is only proper, as per the Rules applicable, that the petitioner makes an application since his eligibility cannot be disputed as per Exhibit R1(d). 9. With respect to the petitioner being entitled to HRA, which has now been withheld, the learned Counsel for the petitioner would invite this Court to the provisions relating to grant of Compensatory Allowance and House Rent Allowance as delineated by the Government of India, Ministry of Finance in Office Memorandum No.F.2(37)-E.II(B)/64 dated 27.11.1965. Clause 4(a) (i) is relevant, which is extracted hereunder: “4. The grant of house rent allowance shall be subject to the following conditions:- (a)(i) To those Government servants who are eligible for Government accommodation, the allowances will be admissible only if they have applied for such accommodation in accordance with the prescribed procedure, if any, but have not been provided with it”. The specific clause has been considered by the Hon'ble Supreme Court in _**Director, C.P. Crops Research Institute v. M.Purushothaman**_ **[AIR 1994 SC 2541],** paragraph 5 of which is WP(C) No.9624 of 2016 - 7 - ## extracted hereunder: “5. ... Hence the reason given by the Tribunal that it is only if the employee applies for such accommodation and he refuses to accept the same when offered that he would be disentitled to the HRA, is not correct. It must be remembered in this connection that the Government or the organisation of the kind of the appellant spends huge public funds for constructing quarters for their employees both for the convenience of the management as well as of the employees. The investment thus made in constructing and maintaining the quarters will be a waste if they are to lie unoccupied. The HRA is not a matter of right. It is in lieu of the accommodation not made available to the employees. This being the case, it follows that whenever the accommodation is offered the employees have either to accept it or to forfeit the HRA. The management cannot be saddled with double liability, viz., to construct and maintain the quarters as well as to pay the HRA. This is the rationale of the provisions of paragraph 4 of the said Government Office Memorandum”. The Hon'ble Supreme Court has held that when quarters are available and the organisation has spent considerable funds for the quarters none can claim HRA on the basis alone that he has not made an application or that he is not interested in residing in a government quarters. HRA being a compensatory allowance, there WP(C) No.9624 of 2016 ## - 8 - could be no grant of HRA, if the facility for accommodation is not used or not applied for was the specific finding in the aforesaid decision. In such circumstance, the factum of the petitioner having not applied for a quarters is of no consequence. The writ petition, hence, seeking interference in the decision of the Board of Governors, both with respect to the vacation from the Guest House as ordered by the Board of Governors and with respect to the withholding of HRA, cannot be interfered with. 10. The petitioner, if so advised, can make an application for quarters and the respondent - NIT would consider allotment on the basis of the application in accordance with Exhibit R1(d) Rules. However if no application is made or if the petitioner does not occupy a quarter duly certified by the Engineering department, it goes without saying that on the basis of the above provision the petitioner would not be entitled to HRA. The writ petition would stand dismissed with the above observation. Parties are left to suffer their respective costs. **Sd/-** K.Vinod Chandran Judge. vku/- [ true copy ]