BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 08/10/2010
CORAM
THE HONOURABLE MR. JUSTICE K. CHANDRU
W.P.(MD)NO.9631 of 2010
and
M.P.(MD)NOS.1 to 6 of 2010
Tamilnadu Edainilai Aasiriar Sangam
(Regd.No.99/87)
18,Sri Nagar, Annachathiram,
Kadayakudi Post,
Pudhukottai-622 003
rep. through its District Secretary,
Thiyagarajan .. Petitioner
Vs.
1.The District Collector,
Trichy District,
Trichy.
2.The District Treasury Officer,
Trichy.
3.The Sub Treasury Officer,
Thuraiyur,
Trichy District. .. Respondents
This writ petition has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to acll for the records relating to the proceedings of the third respondent in Na.Ka.2329/09/10A, dated 8.7.2010, to quash the same and to forbear the respondents from recovering the amount paid as house rent allowance as admissible to Grade-II Towns from the teachers within limits of Thuraiyur Municipality.
For Petitioner ... Mr.J.Ashok
For Respondents ... Mrs.Chellamal Moorthy, AAG
assisted by Mr.S.C.Herold Singh, GA
- - - -
ORDER:
Heard both sides.
2. The petitioner is registered Association of Secondary Grade teachers with registration No.99/87 in Pudukkottai District, represented by its District Secretary. The Secretary himself claims to be one such Secondary Grade teacher. In the present writ petition, they have challenged the proceedings issued by the third respondent, i.e. Sub Treasury Officer, Thuraiyur, Tiruchirapalli District, dated 8.7.2010 and after setting aside the same, seeks to forbear the respondents from recovering the amount paid as House Rent Allowance as admissible to Grade-II Towns from the teachers who are residing within the limits of Thuraiyur Municipality.
3. The case of the petitioner was that Thuraiyur Municipality was upgrated as Selection Grade Municipality from Grade II with effect from 2.12.2008. According to the petitioner, the Government of Tamil Nadu constituted a one man committee to examine the scope of upgradation of certain places to become eligible for Hour Rent Allowance, vide G.O.Ms.No.1267, Finance Department, dated 8.12.1985. The Government on getting a report of one man committee, vide G.O.Ms.No.772, Finance (Pay Cell) Department, dated 22.08.1986 directed Grade II Towns and the areas surrounding to 8 Kms. radius from the town limits will be taken for the grant of HRA as admissible to Grade II Towns. If an area within the radius of 8 Kms. falls within a part of a Panchayat Union, then the entire panchayat union shall be taken for the purpose of giving HRA as admissible to Grade II Towns. The said Government Order came into force with effect from 1.4.1986.
4. It is pursuant to the said G.O., a circular letter, dated 17.9.1986 was addressed to all District Collectors requesting them to identify and notify the panchayat unions that falling within the Grade I(a), Grade I(b) and Grade II places for eligibility to draw the GRA in terms of the Government Order and in consultation with the Divisional Engineer, Highways and Rural Works. Even after Thuraiyur Municipality was upgraded from Third Grade to Second Grade municipality vide G.O.Ms.No.85, dated 22.5.1998, the teacher members of the petitioner association who are working within the Town limits of Thuraiyur minicipality were receiving only unclassified HRA eligible to Third Grade Municipality. The petitioner made several representations for enhancement of HRA
as per the Government Order.
5. Subsequently, by G.O.Ms.No.238, Municipal Administration and Water Supply (Election) Department, dated 2.12.2008, the Thuraiyur Municipality was upgraded as Selection Grade Municipality from Grade II with effect from 2.12.2008. The petitioner made a representation, dated 12.10.2009 to the first
and second respondents for the enhancement of HRA eligible to II Grade Municipality. They had also produced a certificate issued by the Sub Divisional Engineer, Highways Department, Thuraiyur to show that villages such as Madurapuri, Kollapatti, Venkatesapuram, Govindapuram, Murugoor, Kallipatti and Kilakkuvadi are coming within the radius of 8 Kms. from the Thuraiyur Municipality limits and that they are eligible to get HRA admissible to Grade II Towns. The first respondent District Collector was also directed to issue necessary clarification.
6. The first respondent by his proceedings, dated 23.11.2009 identified Thuraiyur Panchayat Union and Uppiliyapuram Panchayat Union and Thuraiyur town that they are eligible to get HRA as Thuraiyur Municipality was upgraded as Selection Grade Municipality. Pursuant to the clarification issued by the
District Collector, the teachers working in various Government schools in Thuraiyur Panchayat union, Uppiliyapuram Panchayat union and Thuraiyur Town were paid HRA as per the Government Order. But, however, by proceedings, dated 8.7.2010 issued by the third respondent, it was informed that drawal of HRA was inadmissible. The Regional Joint Director, Treasury and Accounts Department by his D.O. letter dated 8.6.2010 as well as Principal Secretary and Commissioner, Treasury and Accounts Department, by his letter dated 25.6.2010 had informed that only when there is an order of the Government sanctioning HRA, the amount can be drawn as HRA as admissible to Grade II Towns. Therefore, whatever was paid should be recovered as per the impugned circular. All Headmaster were informed to recover the excess amount paid to the teachers. It is at this stage, the petitioner came forward to challenge the same.
7. Mr.J.Ashok, learned counsel for the petitioner contended that requirement under the earlier Government Order was met by the District Collector's clarification. There is no further requirement for getting another formal Government Order. Therefore, recovery being ordered is illegal and should not have been made. Hence the order of the third respondent should be set aside. The members of the petitioner association must be permitted to draw the amount which they were duly getting for all these days.
8. The writ petition was admitted on 27.7.2010. Pending the writ petition, this court granted an interim stay of impugned proceedings in M.P.(MD)No.2 of 2010. The respondents have filed vacate stay applications in M.P.(MD)Nos.3 and of 2010. The petitioner has filed M.P.(MD)Nos.5 and 6 of 2010 for an interim direction to continue to pay HRA and interim injunction restraining the respondents from withholding the HRA as admissible to Grade II Towns. In the light of the vacate stay applications, the main writ petition itself was taken up for hearing with the consent of both sides. Further two more applications were taken out to continue to pay the HRA.
9. In the counter affidavit filed in support of the vacate stay applications, it was contended that G.O.Ms.No.85, dated 22.5.1998 was issued only for the purpose of administrative convenience. It was also further clarified by letter, dated 17.2.1997 Finance Department that upgradation from Third Grade municipality to Second Grade Municipality has no relevance for the sanction of HRA. It was further indicated that the declaration of the entire area of Thuraiyur Panchayat Union, Uppiliyapuram Panchayat Union and Thuraiyur Town as Grade II Places by the Collector's proceedings, dated 23.11.2009 was only for the purpose of fixing boundaries of 8 kms. radius of Thuraiyur town. Unless the Finance Department of the Government orders declaration of Thuraiyur town to draw HRA as eligible for Grade II Towns, the claim for enhanced HRA was invalid. In essence, in the absence of a Government Order (Finance Department), additional drawal of HRA was impermissible.
10. Mrs.Chellammal Moorthy, learned Additional Advocate General leading Mr.S.C.Herold Singh, learned Government Advocate contended that the writ petition at the instance of an association is not maintainable. For this purpose, she relied upon the judgment of a division bench of this court in Tamilaga Asiriyar Kootani represented by the General Secretary V.Annamalai, Chennai Vs. The Government of Tamil Nadu represented by its Secretary, School Education Department, Chennai and others reported in 2005 (3) MLJ 252.
11. In the light of the preliminary objection, the learned counsel for the petitioner stated that even the General Secretary who had sworn to the affidavit himself is a secondary grade teacher and hence he can be treated as an aggrieved person. Therefore, at his instance, the issue can be gone into.
12. Thereafter, the learned Additional Advocate General pointed out that the Collector's order is only for the purpose of fixing the boundaries and without proper order of the Government, they themselves cannot draw HRA. Hence the impugned order issued by the third respondent is valid and the recovery order is also in accordance with law.
13. The counsel for the petitioner at this stage stated that the matter is receiving attention by the Government. If the Government issues an order in their favour, then the issue will become academic. Therefore, the Government should be directed to decide the issue one way or other without making the parties kept under a suspended animation.
14. In the light of the above submissions, the following conclusions can be arrived at:
(a) The writ petition filed by the petitioner Sangam is not maintainable though the deponent to the affidavit can be considered himself as an aggrieved person.
(b) Without a specific order of the State Government, the drawal of additional HRA is unauthorised and the Collector's letter is not made under any delegated financial powers by the State.
(c) Until such time the Government takes a decision, the members of the teacher Sangam cannot draw any revised HRA as if the Thurayur Panchayat Union, Uppiliyapuram Panchayat Union and Thuraiyur Town are within 8 Kms. radius.
(d) Since the issue is receiving attention by the Government, even as admitted by the learned Additional Advocate General, a direction will be issued to the State Government to decide the issue relating to payment of HRA to the Government servants who are working in the areas coming under the Thurayur and Uppiliyapuram Panchayat Unions and Thuraiyur town, as expeditiously as possible.
(e) The question of payment of HRA as admissible to Grade II Town will await an appropriate order from the State Government.
(f) With reference to recovery of amounts already paid, it must be stated that the petitioner Sangam is in no way responsible for the drawal of revised HRA and it was done only on an order passed by the District Collector, who had no power to permit such payments. Since it was not due to any misrepresentation the amounts already paid, no recovery should be made until a decision is taken by the State Government.
15. In this context it is necessary to refer to the judgment of the Supreme Court in Syed Abdul Qadir v. State of Bihar reported in 2009 3 SCC 475. In paragraph 57, the Supreme Court observed as follows:
"57. This Court, in a catena of decisions, has granted relief against recovery of excess payment of emoluments/allowances if (a) the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee, and (b) if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous.
58. The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess. See Sahib Ram v. State of Haryana, Shyam Babu Verma v. Union of India, Union of India v. M. Bhaskar, V. Gangaram v. Director, Col. B.J. Akkara (Retd.) v. Govt. of India, Purshottam Lal Das v. State of Bihar, Punjab National Bank v. Manjeet Singh and Bihar SEB v. Bijay Bhadur.
(Emphasis added)
16. In the light of the above, there will be stay of recovery of amount from the salary of persons who had drawn enhanced HRA. Any amount paid will be subject to the outcome of the decision to be taken by the State Government. Even the question of recovery will be decided depending upon the decision of the State Government.
17. With the above directions, the writ petition will stand disposed of. No costs. Consequently, connected miscellaneous petitions stand dismissed as unnecessary.
To
1.The District Collector,
Trichy District,
Trichy.
2.The District Treasury Officer,
Trichy.
3.The Sub Treasury Officer,
Thuraiyur,
Trichy District.
.
