1. The petitioner organisation has moved this court against the order dated 21.08.1998 passed by the respondent no. 1 herein in discontinuing the House Rent Allowance (hereinafter referred to as 'HRA') and Compensatory Local Allowance (hereinafter referred to as 'CLA') as applicable to urban cities which was allowed to the members prior to the circular dated 21.08.1998 and to recover the amount of HRA and CLA which were being paid to the primary teachers since 01.01.1986.
2. It is the case of the petitioner organisation that prior to the impugned resolution dated 21.08.1998 passed by the respondent no. 1, the teachers of the petitioner organisation were being paid HRA and CLA per month. It is the case of the petitioner that the resolution dated 21.08.1998 passed by the respondent no. 1 arbitrarily takes away the above benefits of the teachers as far as HRA and CLA are concerned and also orders for recovery of the amount so paid from the salary and from the pension of those teachers who are no more in service.
3. Ms. Mamta Vyas, learned advocate appearing for the petitioner organisation submitted that the impugned order passed by the respondent no. 1 is without giving any opportunity to the petitioner organisation of being heard and therefore the same is in violation of the principles of natural justice.
3.1 Ms. Vyas contended that before passing the impugned order, the respondent no. 1 ought to have taken into consideration the resolution dated 30/4-4/5-1984 which clearly states that the Government teachers who fall under the classified city urban area shall get HRA as well as CLA as per the Resolution No. PCR-3475-41/M dated 15.12.1975 and that the urban area which is at the distance of eight kms. from the city are entitled for this benefit of the resolution dated 30/4- 4/5-1984. Ms. Vyas submitted that the teachers who are part of the petitioner organisation were working in schools situated in villages within eight kms from the urban city and therefore they were required to be paid benefits at the rate as applicable to the nearest urban city which is Ahmedabad in the present case. She submitted that by order dated 08.01.1987, the respondents have published a list of villages which are situated within the periphery of 8 kms area from the limit of Ahmedabad Municipal Corporation.
3.2 Ms. Vyas further submitted that the decision of recovery of the amount already paid is totally illegal and calls for interference by this Court. She submitted that the amount if at all mistakenly paid by the respondents as per their say cannot be recovered for no fault of the petitioner members.
3.3 Ms Vyas, in support of his submissions, has relied upon the decisions in the case of Navjyoti Coop. Housing Society and Others vs. Union of India and Others reported in 1992(4) SCC 477 and also in the case of Syed Abdul Qadir vs. State of Bihar reported in 2009(3) SCC 475. Ms. Vyas has also placed reliance on an unreported decision of this Court dated 02.12.2011 passed in Special Civil Application No. 235 of 2003.
4. Learned advocate appearing for the respondent strongly submitted that the impugned resolution is just and proper and does not call for any interference by this Court. He has drawn the attention of this Court to the various resolutions issued by the State Government from time to time declaring the area of urban agglomeration. He submitted that the first resolution dated 18.04.1983 was put into effect from 01.08.1982 and the second resolution issued on 20.01.1998 was ordered to be given effect from 01.08.1997. The list of cities and towns covered under urban agglomeration based on population census 1991 issued by the Joint Director, District Population Census (Book) was not attached with the resolution dated 20.01.1998 but was circulated to the concerned offices by resolution dated 18.05.2000. Thereafter third resolution was issued on 16.05.2008 which was given effect from 16.05.2008.
4.1 Learned advocate for the respondent contended that the State Government has never granted permission to make payment of HRA and CLA at the rate of the urban city for the villages which are situated outside radius of eight kms. from the municipal limit of that urban city. He submitted that the villages which are a part of the agglomeration published by the state government from time to time shall only be entitled to the benefits of HRA & CLA at the rate claimed for.
4.2 Learned advocate for the respondent further contended that under the Government Resolution dated PCR/3375/41-M (Para III) dated 15.12.1975, only HRA can be paid provided the conditions prescribed therein are satisfied at the rate admissible for the places situated within the radius of eight kms of the municipal limit. He submitted that even under the said Government Resolution, CLA is not at all payable for the places situated within the radius of eight kms of municipal limit. He submitted that inspite of the clear provisions of the Government Resolution dated 15.12.1975 the payment of CLA has been made against the order of the State Government.
4.3 Learned advocate for the respondent has relied upon the decisions of the Apex Court in the case of M.C. Mehta and Others vs. Union of India and Others reported in 1999(6) SCC 237 and Syed Abdul Qadir vs. State of Bihar reported in 2009(3) SCC 475 and submitted that any payment for which the incumbent is not entitled under the provisions of rule cannot be claimed as a matter of fundamental right and therefore calls for recovery from the petitioner.
5. Before proceeding with the matter, it is required to be noted that the employees of the petitioner organisation are the employees of District Panchayat and the expenditure towards their pay and allowances which are paid by either the District Panchayat or the respective Taluka Panchayat is audited by the respondent no. 1. The competent authority vide order dated 21.08.1998 issued instructions to the panchayat to stop payment of HRA And CLA at the rate of Ahmedabad city for the villages which are out of the radius of eight kms from Ahmedabad city and to effect recovery for the amount which was wrongly paid.
5.1 The State Government has not granted permission to make payment of HRA & CLA at the rate of Ahmedabad city for the villages which are situated outside radius of eight km from the Ahmedabad municipal limit or which are not covered under the list of agglomerated villages/area as per the government resolution. Learned advocate for the petitioner is not in a position to show from any of the government resolutions that the petitioner organisation is entitled for the said benefit or that the village/area where the petitioner members are working are covered by any resolution of the government and in the present case Daskroi taluka.
6. It appears that members of the petitioner organisation have wrongly derived the benefit of HRA and CLA and after it was so observed by the Local Fund Auditors in their report that a recovery was ordered. It is required to be noted that even the resolution dated 15.12.1975 lays down that the employees who are claiming membership of the petitioner organisation were required to take prior permission for staying at a different place than the Head Quarter and only thereafter they can stay at a different place and claim the House Rent Allowance accordingly or they are eligible for the HRA of only the concerned Head Quarter. Since April, 1996 the employees are paid HRA on the basis of the Head Quarter fixed by the authority.
7. The State Government passed a resolution dated 20.01.1998 but the list of cities and towns covered under Urban Agglomeration based on population census 1991 issued by Joint Director, District Population Census (Book) was not attached and was in fact circulated to the concerned offices vide resolution dated 18.05.2000. The rates of HRA & CLA in Government are not same for all the places in the State. There is classification of places for this purpose under which different rates have been prescribed and therefore the payment of HRA & CLA can be made only at the applicable rates for the relevant village/place. It appears that the villages are not situated within the radius of eight km of Ahmedabad Municipal Corporation or are not a part of the list of agglomeration. It is also required to be noted that the Urban Development Area is not to be considered for the purpose of HRA & CLA and there is no provision in the government rule to consider 'Urban Development Area'.
8. In the case of Navjyoti Coop. Housing Society and Others (supra), the Apex Court has held that the persons enjoying certain benefit/advantage under old policy of government derive a legitimate expectation even though they may not have any legal right under private law in regard of its continuance and that before adopting any new policy affecting the benefit/advantage, the aggrieved persons entitled to an opportunity to make representation before the government.
8.1 In the present case, it is a case of wrong payment being made to the petitioner teachers and therefore the respondent authority is justified in correcting the mistake which was being perpetuated for a considerable time. By the impugned circular it has been directed that the HRA and CLA should be paid to the concerned persons in accordance with the government policy. No impropriety is caused in issuing the impugned resolution. The circular issued by the District Panchayat in granting the said benefits shall not prevail as the same is contrary to the government resolution and out of the two the government resolution is required to be considered.
9. It is true in a case of this nature where the payment already made is sought to be recovered, thereby visiting the employees with adverse monetary consequences, the affected employees should have been put on notice and their objections called for. But it is by now well settled that in all cases of violation of the principles of natural justice, the court exercising jurisdiction under Article 226 of the Constitution need not necessarily interfere and set at naught the action taken, more particularly, since the petitioner organisation could not satisfy this court that the members of the petitioner organisation are entitled and are accordingly deprived of their rights.
9.1 Moreover, in the case of M.C. Mehta (supra), the Apex Court has held that it is not always necessary for the Court to strike down an order merely because the order has been passed against the petitioner in breach of natural justice. The Court can under Article 32 or Article 226 refuse to exercise its discretion of striking down the order if such striking down will result in restoration of another order passed earlier in favour of the petitioner and against the opposite party in violation of the principles of natural justice or is otherwise not in accordance with law.
9.2 In the case of Syed Abdul Qadir(supra), learned advocate for the petitioner has relied upon the fact that the Apex Court therein has observed that as the excess amount paid was not due to misrepresentation no recovery should be made. The decision dated 02.12.2011 passed by this court in SCA No.
235 of 2003 is also on similar lines wherein this Court has observed that the order directing recovery in respect of HRA/CCA is illegal.
10. On the other hand, Mr Soni, ld. AGP also relying upon the case of Syed Abdul Qadir(supra) has drawn the attention of this Court to para 58 whereby the Apex Court has observed that 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.
11. In view of the above discussion, this court is of the view that the impugned order does not call for any interference by this Court and the petition deserves to be dismissed. However, it is required to be noted that subsequently if the petitioner is in a position to show that the members of the petitioner organisation are entitled as per any of the Government Resolutions they shall be paid accordingly. Petition stands dismissed accordingly.
12. After the judgement was pronounced, Ms Vyas requested for continuing the interim relief which has been in operation all this while. This Court is of the opinion that when this court has concluded that the impugned resolution is not bad in law or illegal, granting stay of the same will eventually lead to continuity of the illegality. Therefore, request as prayed for cannot be acceded to and is accordingly rejected.
(K.S. JHAVERI, J.) Divya//