1. The petitioners have moved this court seeking declaration that the petitioners who are staying within the municipal limits of the City of Ahmedabad and serving in the schools situated within the radius of eight kms from the municipal limits of Ahmedabad are eligible to get HRA and CLA at the rate payable to Ahmedabad city employees.
2. It is the case of the petitioners that all the petitioners are working as primary school teachers serving in the schools situated within the radius of eight kms of the city of Ahmedabad. It is the case of the petitioners that as per the resolution dated 15.12.1975 those governments servants whose place of posting is in the proximity of a qualified city and who out of necessity have to reside within the city are granted HRA admissible in that city provided two conditions are satisfied. It is further the case of the petitioners that the respondent no. 1 is not paying HRA and CLA as per the government resolutions dated 12.04.1965 and 15.12.1975. The petitioners also preferred representation before the respondent authority which was rejected vide order dated 24.12.1994 and the same is also impugned in this petition.
3. Mr. S.R. Divetia, learned advocate appearing for Mr. HN Brahmbhatt for the petitioners submitted that for the last these many years the petitioners are serving at the places which are within the radius of eight kms from the city limits of their residence in view of the fact that there is no accomodation available nearer to the place of their duty. He submitted that the place of duty also falls within the periphery of eight kms from the municipal limits of the qualified city which in the present case is Ahmedabad and therefore they are entitled to HRA & CLA as applicable to the employees of Ahmedabad city. He submitted that the petitioners satisfy the conditions as laid down in the resolution dated 15.12.1975 and therefore they are entitled to HRA and CLA as per the said resolution.
4. Learned advocate appearing for the respondent strongly submitted that inspite of the conditions and specific terms laid down for availing the benefit of HRA at a particular rate, number of employees have taken undue advantage of higher rate of HRA resulting into a heavy financial burden on the public exchequer. He submitted that considering the same the State Government issued resolution dated 25.02.2000 laying down that the government employees will be eligible for HRA on the basis of their place of posting and the condition with regard to eight kms is also deleted. He submitted that pursuant to the Government Resolution dated 18.04.1983, the state government published a list of agglomeration wherein the villages/areas which shall be paid HRA & CLA as per the concerned city are mentioned and any village or area other than that shall not get the benefit of the rate payable to the employees of the concerned city.
5. This Court has heard learned advocates for both the sides and perused the documents on record, more particularly, the Government Resolutions issued by the State Government from time to time. The Government of Gujarat has issued resolution dated 12.04.1965 through which the employees were made available the benefit of HRA wherein two conditions were laid down one being distance between the place of duty and the periphery of the municipal limit of the qualified city does not exceed eight kms and the second being the staff concerned shall have to reside within the qualified city out of necessity i.e. for want of accommodation nearer to their place of duty. In the said resolution the state government has laid down the rate of HRA for different qualified cities also.
5.1 Thereafter the State Government also issued another resolution on 15.12.1975 whereby both the conditions were continued. Thereafter, resolutions dated 14.06.1988 and 18.04.1983 were also issued and the terms and conditions were not changed. Pursuant to the Government Resolution dated 18.04.1983, the state government published a list of agglomeration wherein the villages/areas which shall be paid HRA & CLA as per the concerned city are mentioned and any village or area other than that shall not get the benefit of the rate payable to the employees of the concerned city. Further, 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.
6. The rates of HRA & CLA 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. In view of the fact that the Urban Development Area as 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'. The impugned order is applicable for those villages which are not covered under the list of agglomeration as published from time to time as per the criteria of the state government.
6.1 However, subsequently vide resolution dated 25.02.2000 the state government declared that the concerned employees are entitled to HRA on the basis of their place of posting and not on the basis of their residence. It is required to be noted that the resolution dated 18.04.1983 also mentions the list of villages/areas which are covered for grant of HRA and CLA and if the villages/area where the petitioners are working are not mentioned in the said list of agglomeration they cannot term any benefit.
7. It is required to be noted that even the resolution dated 15.12.1975 lays down that the employees are 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. Therefore, if the petitioners without permission of the concerned authority change the head quarters and reside in city area then in that case the government is not in a position to carry the burden of city allowance and HRA.
8. In view of the above, it is clear that the stand of the government is just and proper. Mr. Divetia, learned advocate for the petitioners is not in a position to point out before this Court that any of the Government Resolutions mentions the name of the village/area where the petitioners are working as a part of the agglomeration which is required to receive HRA/CLA at the rate paid to the qualified cities. This court vide judgment and order dated 25.07.2012 passed in Special Civil Application No. 3509 of 1991 has decided the said issue and therefore for the reasons stated therein, this petition also deserves to be dismissed.
9. Accordingly petition is dismissed. However, in future, if the petitioners are in a position to show that any of the Government Resolutions contains the name of the village/area where the petitioners are working as a part of the agglomeration which is required to receive HRA/CLA at the rate paid to the qualified cities, the petitioners shall be paid the benefits accordingly. Rule is discharged. Interim relief stands vacated.
10. After the judgement was pronounced, Mr. Divetia 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//