[C.M.A. No.15920 of 2021]
1. Heard learned counsel for the parties.
2. This is an application for amendment in the writ petition.
3. For the reasons stated in the affidavit filed in support of the application, the application is allowed.
ON WRIT PETITION
1. Heard learned counsel for the petitioner and learned Standing Counsel for the respondents-State.
2. By means of the present writ petition, the petitioner has prayed for the following reliefs:
"(i) Issue a writ, order or direction in the nature of Certiorari, thereby quashing of the impugned Government Order dated 15.12.1981 and 28.4.2000 as contained as Annexure Nos.1 and 2 to the writ petition, after summoning the original.
(ii) Issue a writ, order or direction in the nature of Mandamus commanding the opposite parties to continue to pay House Rent Allowance (hereinafter referred to as 'HRA') to the petitioners.
(iii) Issue any other writ, order or direction which this Hon'ble High Court may deem fit and proper in the circumstances of the case may also be passed in favour of the petitioner in the interest of justice.
(iv) Award the cost of the writ petition in favour of the petitioner."
3. In the writ petition, this Court vide order dated 23.3.2004 passed the following order:
"Notices on behalf of the parties have been accepted by the learned Chief Standing Counsel.
Let counter affidavit be filed within four weeks. Rejoinder affidavit may be filed within two weeks. List thereafter.
Meanwhile, operation of para 5 of the Government Order dated 15th December, 1981 shall remain stayed and both husband and wife, if both of them are government employees shall be entitled to draw house rent allowance separately and the recovery shall also remain stayed."
4. In compliance of the above-extracted order, the petitioners have received HRA. On attaining the age of superannuation, the petitioners have retired from services on 30.4.2017 and 13.11.2010 respectively. By means of Government Orders issued on 15.12.1981 and 28.4.2000, husband and wife residing in one residence was granted HRA which have also been assailed in the present writ petition on the ground that cutoff date fixed in the Government Orders is ultra vires and contrary to the constitutional provisions.
5. Learned counsel for the petitioners next submits that Government Orders issued do not prescribe retrospective cutoff date with effect from the date the HRA was provided to the petitioners by way of an interim order. He apprehends that in case writ petition is dismissed as infructuous due to retirement of the petitioners, respondents may be proceeded to recover HRA paid in compliance of the interim order.
6. On the other hand, learned Standing Counsel appearing for the respondent-State submits that relief as prayed for in the writ petition was provided by way of an interim order and after providing HRA, on attaining the age of superannuation they retired from services, therefore, no cause of action survives in the writ petition.
7. In regard to challenge of subsequent Government Orders, submission of learned counsel for the respondents-State is that Government Orders prescribe for payment of HRA to husband and wife residing in one resident. The cutoff date is fixed prospectively.
8. I have considered the submissions advanced by learned counsel for the parties and perused the material on record.
9. In the opinion of this Court, once that the petitioners have been paid HRA under an interim order while residing in one residence and subsequently Government Orders prescribe for payment of HRA to the husband and wife residing in one residence, no cause of action survives in the writ petition.
10. In regard to challenge of cutoff date of the Government Orders issued subsequently, this Court is of the view that in case while issuing the Government Orders it has not been provided that the Government Orders will also cover HRA to those employees who were not receiving HRA prior to issuance of the Government Orders, the same does not create any discrimination or illegality.
11. In view of the above, this writ petition is partly allowed to the extent that no recovery of HRA paid in pursuance to the interim order shall be made. Petition in regard to rest of the reliefs is dismissed.
Order Date :- 12.8.2021 GK Sinha