Manoj Kumar Upadhyay v. Union of India and others (WP(C) 28630 of 2017)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **WEDNESDAY, THE 11[TH] DAY OF JANUARY 2023 / 21ST POUSHA, 1944 WP(C) NO.28630 OF 2017** ## **- PETITIONER :** MANOJ KUMAR UPADHYAY ASG JAIPUR AIRPORT, SANGANER, JAIPUR-302 011 EARLIER POSTED WITH ASG COCHIN AIRPORT CISF UNIT, CIAL, NEDUMBASSERY, COCHIN-683 111. BY ADV SRI.T.SANJAY ## **- RESPONDENTS :** 1 THE DIRECTOR GENERAL CISF HEADQUARTERS, 13, CGOS COMPLEX, LODHI ROAD, NEW DELHI, PIN-110 003. 2 THE INSPECTOR GENERAL, CISF AIRPORT SECTOR, BLOCK NO. 13, CGO COMPLEX, LODHI ROAD, NEW DELHI, PIN-110 003. 3 THE DEPUTY INSPECTOR GENERAL/AP-SZ, 2ND FLOOR, D BLOCK, RAJAJI BHAVAN, BESANT NAGAR, CHENNAI, PIN-600 090. 4 THE SENIOR COMMANDANT, CISF UNIT, KOCHI AIRPORT (CIAL), NEDUMBASSERY, KOCHI, PIN- 683 111. 5 UNION OF INDIA REPRESENTED BY SECRETARY, MINISTRY OF HOME AFFAIRS, NORTH BLOCK, NEW DELHI, PIN- 110 001. BY ADVS. SMT.O.M.SHALINA, CGC SRI.S.MANU, DSGI THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 9.12.2022, THE COURT ON 11.1.2023 DELIVERED THE FOLLOWING: WP(C) NO.28630 OF 2017 -: 2 :- ## JUDGMENT ## Dated this the 11th day of January, 2023 The prayers in this writ petition are as follows :- - “i. To declare that the petitioner is entitled to House Rent Allowance and Transportation Allowance with arrears. - ii. Issue a writ of mandamus directing the respondents to pay House Rent Allowance and Transport Allowance with full arrears to the petitioner with 8% interest. - iii. Issue a writ of certiorari quashing Ext.P3 order issued by the 1[st] respondent as it is illegal, arbitrary and unjust.” 2. Heard the learned counsel for the petitioner and the learned DSGI appearing for the respondents. 3. It is submitted that the petitioner was appointed as Constable/TM (Barber) in the Central Industrial Security Force (for short, 'CISF') on 17.5.2008. He was working at the Cochin International Airport Unit of the CISF from 2009 to 2017. It is contended that the petitioner was staying in the unit barracks without his family since rent free accommodation was not available at the unit. It is contended that as per Rule 61(2) of the CISF Rules, 2001, accommodation to the enrolled member of the Force shall be rent free but where such facilities are not available, they shall get House Rent Allowance (HRA) in lieu WP(C) NO.28630 OF 2017 -: 3 :- thereof as applicable to other Central Government Employees. It is contended that the petitioner was, therefore, entitled to HRA in view of the fact that he did not avail such allowance and was not granted any family accommodation during the period that he worked in the Cochin International Airport Unit from 2009 to 2017. It is submitted that Ext.P1 representation was submitted by the petitioner, which was directed to be considered by Ext.P2 judgment. The representation was rejected by Ext.P3. 4. The learned counsel places reliance on Ext.P4 judgment of the High Court of Delhi and Ext.P5 order of the CISF Headquarters for implementation of the directions of the Calcutta High Court and contends that HRA is liable to be released to the petitioner. The learned counsel for the petitioner also places reliance on a decisions of the High Court of Delhi in Shaikh Abdul Khalik & another v. Director General & others [W.P.(C) No.11415/2017], Inspector/Exe. Jaspal Singh Mann v. Union of India & ors. [W.P.(C) No.1712/2006] and Anand Kumar v. Union of India and ors. [W.P.(C) No.6720/2016] and of a decision of the High Court of Calcutta in Sri.Arun Kumar Dome and others v. The Union of India and others [CAN 10503/2014 with CAN 1987/2016 in W.P. 27938(W)/2014]. WP(C) NO.28630 OF 2017 -: 4 :- 5. A counter affidavit is placed on record by respondents 1 to 5 contending that the petitioner's request for Transport Allowance and HRA had been considered in terms of Rule 61(1) of the CISF Rules, 2001. It is submitted that since no government family accommodation had been provided by the Cochin International Airport Limited to CISF personnel posted therein, enrolled members are granted outliving permission with HRA within the prescribed percentage, that is, 45% as per Rule 61(1) of the CISF Rules, 2001 in lieu of government accommodation. It is submitted that the procedure for grant of outliving permission with HRA is that they have to submit an application for grant of outliving permission with HRA, if they so desire, to bring their family to their duty station. It is submitted that no application was submitted by the petitioner during his posting tenure at Cochin Airport for grant of outliving permission with HRA and the petitioner was not granted HRA since he was staying in the CISF barrack accommodation and no application was submitted by the petitioner for outliving permission or transport allowance. It is further contended that an amount of Rs.700/- from May, 2009 to December, 2010, Rs.875/- from January, 2011 to June, 2014 and Rs.1,050/- from July, 2014 to WP(C) NO.28630 OF 2017 -: 5 :- May, 2017 was granted as family accommodation allowance in lieu of rent free accommodation in accordance with the 6[th] CPC as evidenced by Exts.R1(a) and R1(b) and that it was only because the petitioner not submitted any request for outliving permission with HRA that he was not provided with such permission with HRA. It is further contended that overall entitlement for married accommodation is 45% and 55% for unmarried accommodation and that the 45% of outliving permission also is to be granted on the basis of seniority as per rank wise seniority register to be maintained. It is further contended that compensation is payable to percentage of members in the Force who are entitled to get married accommodation minus those members of the Force who are allotted such accommodation by the undertaking. With regard to Exts.P4 and P5, it is contended that the petitioner had not submitted any application for married accommodation or for grant of outliving permission with HRA and he was posted at the Cochin Airport and the Kolkata Airport and therefore, the judgments are not applicable. 6. A reply affidavit has been filed by the petitioner, in which, he specifically states that HRA as well as TA are part of WP(C) NO.28630 OF 2017 -: 6 :- the pay package and that when it is admitted that there was no family accommodation available, the petitioner was entitled to HRA and TA as a matter of right. It is further contended that the petitioner is entitled to HRA in terms of Ext.P6 report of the 6[th] Central Pay Commission and Ext.P7 order of the Ministry of Finance, Government of India. Ext.P8 is also produced which is purported to be a request submitted by the petitioner before the Commandant, CISF through proper channel on 28.6.2009. It is submitted that Exts.P4 and P5 considered cases identical to that of the petitioner and by Ext.P5 all persons who had been provided with barrack accommodation in the Kolkata Airport had been held entitled to HRA since there was no family accommodation available at the unit where they were engaged. 7. A statement is also placed on record by the Deputy Solicitor General of India stating that no request of the petitioner had been received. 8. I have considered the contentions advanced. The short issue which requires consideration is whether the petitioner is entitled as of right for HRA or whether it would depend on the submission of an application for outliving permission with HRA on the part of the petitioner. It is not in dispute that the WP(C) NO.28630 OF 2017 -: 7 :- petitioner had worked from the year 2009 to 2017 in the Cochin International Airport Unit, CISF. It is also not in dispute that there was no family accommodation provided to members of the Force. In Ext.P4 judgment, the High Court of Delhi had considered the provisions of Rule 61 of the CISF Rule, 2001 and held that circulars or Office Memoranda cannot override the provisions of the Rules. On the basis of a judgment issued by the High Court of Kolkata, Ext.P5 order was also passed granting the benefit of HRA to all personnel in the Kolkata Airport Unit of the CISF in identical situations. 9. Rule 61 of the CISF Rules, 2001 reads as follows :- “ 61. Free accommodation .- (1) Normally, the undertaking where the Force has been deputed shall provide accommodation in the township itself to all supervisory officers and at the rate of 45 per cent married and 55 per cent unmarried or as amended by the Central Government from time to time, to the enrolled members of the Force. (2) The accommodation to the enrolled member of the Force shall be rent-free but where such facilities are not available they shall get house rent allowance in lieu thereof as applicable to other central government employees. (3) The members of the Force shall also get compensation in lieu of married accommodation in terms of orders issued by the Government from time to time in this respect. The compensation shall be payable to that WP(C) NO.28630 OF 2017 -: 8 :- percentage of members of the Force who are entitled to get married accommodation minus those members of the Force who are allotted accommodation by the Undertaking. (4) Supervisory officer of the Force who is provided accommodation by the Public Sector Undertakings or allotted accommodation by Directorate of Estate will pay licence fee to the Public Sector Undertakings at the rates as applicable to their own employees or the licence fee as fixed by the Central Government for general pool accommodation from time to time with reference to plinth area of accommodation as the case may be.” 10. In Anand Kumar v. Union of India and ors., a Division Bench of the Delhi High Court had considered the applicability of Ext.P4 judgment and held that in case where a married officer is directed to stay in a barrack, HRA would be payable as stay in the barrack is not an option or choice exercised by the enrolled officer and it cannot be considered as a voluntary act by the enrolled officer to disqualify him from being granted the benefit of HRA. 11. The learned counsel for the petitioner would contend that an Office Memorandum had been issued on 31.7.2017 making the HRA applicable at the selected places of residence of the dependents of officers on field posting and reduced HRA applicable at the selected place of residence of the dependents in WP(C) NO.28630 OF 2017 -: 9 :- case of officers on non-field postings staying in barracks. It is submitted that the HRA as applicable is liable to be granted to the petitioner also. 12. Having considered the contentions advanced and in view of the judgments produced, I am of the opinion that HRA being a component of pay, the petitioner would be entitled to HRA at the applicable rates, in view of the fact that he had not availed such HRA and had been forced to stay in the barracks in view of the non-availability of family accommodation in the unit. The contention that a specific request for outliving permission was not made by the petitioner would not make any difference in view of the specific wording of Rule 61(2) and the fact that the respondents have no case that family accommodation was available to the petitioner. There is also no contention in Ext.P3 that the petitioner had not submitted an application for outliving permission. In the absence of family accommodation, the petitioner was entitled to the HRA as per the Rules. In the above view of the matter, this writ petition is allowed. There will be a direction to the respondents to calculate the HRA payable to the petitioner in terms of the applicable rates and to grant such HRA for the period from 2009 to 2017 when WP(C) NO.28630 OF 2017 -: 10 :- the petitioner worked at the Cochin International Airport Unit of the CISF. Such payment shall be made within a period of three months from the date of receipt of a copy of this judgment. Sd/ANU SIVARAMAN JUDGE Jvt/15.12.2022 WP(C) NO.28630 OF 2017 ## -: 11 :- ## **APPENDIX OF WP(C) 28630/2017** PETITIONER EXHIBITS - EXHIBIT P1 PHOTOCOPY OF THE REPRESENTATION DATED 26/04/2017 FORWARDED TO THE 1ST RESPONDENT. - EXHIBIT P2 TRUE COPY OF THE JUDGMENT IN WP(C)NO.17835 OF 2017 DATED 03-05-2017. - EXHIBIT P3 TRUE COPY OF THE ORDER DATED 28/07/2017 ISSUED BY THE 1ST RESPONDENT. - EXHIBIT P4 TRUE COPY OF THE JUDGMENT OF THE HIGH COURT OF DELHI DATED 27-05-2015 IN W.P(C)NO:5407/15. - EXHIBIT P5 TRUE COPY OF THE ORDER OF THE CISF HEADQUARTERS DATED 28.11.2016. EXHIBIT P6 TRUE COPY OF RELEVANT PAGES OF REPORT OF 6TH CPC. - EXHIBIT P7 TRUE COPY OF THE RELEVANT PAGES OF RESOLUTION DATED 29-08-2008 OF MINISTRY OF FINANCE, GOVERNMENT OF INDIA. - EXHIBIT P8 TRUE COPY OF PETITIONER'S REQUEST DATED 28-062009 SEEKING PERMISSION FOR OUTLIVING WITH TRANSLATION. - EXHIBIT P9 TRUE COPY OF ORDER DATED 02-07-2010 OF THE HIGH COURT OF ANDHRA PRADESH. - EXHIBIT P10 TRUE COPY OF ORDER DATED 20-09-2010 OF DIG (SOUTH ZONE), CISF, CHENNAI. RESPONDENTS' EXHIBITS :- EXHIBIT R1(a) : TRUE COPY OF THE O.M.No.II-27012/65/2008-PF-I DATED 16.02.2009 ISSUED BY GOVERNMENT OF INDIA, MINISTRY OF HOME AFFAIRS, NEW DELHI. WP(C) NO.28630 OF 2017 -: 12 :- EXHIBIT R1(b) : TRUE COPY OF PAY BILL IN RESPECT OF THE PETITIONER FOR THE MONTH OF MAY 2017. EXHIBIT R1(c) : TRUE COPY OF CISF HEAD QUARTERS LETTER No.E12017/3/2010/Estt.II/1203 DATED 11.04.2012. EXHIBIT R1(d) : TRUE COPY OF THE SENIORITY REGISTER MAINTAINED AT CISF UNIT COCHIN AIRPORT FDOR GRANT OF OUTLIVING PERMISSION WITH HRA. EXHIBIT R1(e) : TRUE COPIES OF APPLICATION IN RESPECT OF No.732310721 CONSTABLE/BARBER P.D.RAMANAN (17.11.2008) AND No.824502041 CONSTABLE/SWEEPER G.RADHAKRISHNAN (30.09.2009).