Tapan Kumar Das v. State Of West Bengal & ORS

24.01.2024 suman Item no.11 Ct. 238 WPA 5168 of 2019 Dr. Tapan Kumar Das Vs.

The State of West Bengal & Ors.

Mr. Pappu Adhiikari Mr. Debajit Kundu ... For the petitioner.

The State is not represented at the time of call. The petitioner is an Assistant Professor of Geography at Coochbehar College in the district of Coochbehar.

It is the grievance of the petitioner that the State has deducted the House Rent Allowance from his salary from the month of July, 2015 on the ground that in terms of para 11 of F.D. Memo No. 1691-F. dt. 13.12.2009 the maximum ceiling of HRA for husband and wife together shall be Rs.6,000/- per month. The concerned department expressed its inability to allow full HRA proposal to the petitioner in view of the said memo.

It is the grievance of the petitioner that the petitioner and his wife are located approximately 700 kilometers apart. It has been submitted by the learned advocate for the petitioner that since they are living separately, there cannot be any justification to deduct

the house rent allowance from the salary of the petitioner.

In support of his case, learned advocate appearing for the petitioner has relied upon a judgment passed by a Co-ordinate Bench of this Court in WPA 21525 (W) of 2014 (Dr. Paromita Majumdar vs. The State of West Bengal & Ors.) The said judgment has dealt with a situation where the petitioner therein was employed in an aided educational institution at Kolkata and her husband was employed under the Central Government at New Delhi. In such a factual scenario, the Court directed the State to release the house rent allowance in favour of the petitioner. The relevant parts of the said judgment are quoted below:

"The undisputed facts are that the petitioner is engaged in an approved educational institution and is residing at Kolkata. The petitioner's husband is employed under the Central Government and he is residing at New Delhi. Both the places of residence are separated by a distance of more than 1300 kms. The petitioner's claimed towards full HRA was considered and recommended by the Governing Body of the said college. The judgment delivered in the case of Latika Sahu (Supra) has already been complied with and the appellant therein has been disbursed the benefits and the State Government did not choose to prefer any appeal against the same. A perusal of the judgment delivered in the case of Latika Sahu (supra) reveals that the

facts involved in the said matter are identical to the facts of the instant case. In the said matter also the claim of the petitioner/appellant was not granted in view of the provisions of para 11 of the Finance Department memorandum dated 23rd February, 2009. In the said judgment the Court considered a principle question as to whether different provisions have been made in the concerned Revision of Pay & Allowance Rules for an employee who lives with his/her spouse in same house with those where the spouse lives in separate accommodation. The said question was answered by observing that the ceiling limit of Rs. 6,000/- as specified in para 11 of the memorandum dated 23rd February, 2009 cannot be made applicable where the married employed couple are compelled to reside separately in two separate residential accommodation.

A close perusal of the said Rules of 1926 would reveal that the same does not govern the cases where the husband and wife are residing in separate residential accommodation. Furthermore, there is no reference to the said Rules of 1926 in the finance department memoranda dated 30th November, 1998 and 23rd February, 2009. The memorandum dated 24th October, 2007 pertains to School Education Department and the same has no manner of application in the facts of the instant case. The primary issue involved in this matter is as to whether the petitioner is entitled to get full HRA irrespective of the fact that her husband is drawing HRA from his employer. The said issue has already been answered through the judgment delivered

in the case of Latika Sahu (supra) and the Hon'ble Appeal Court had arrived at a definite finding to the effect that the ceiling of HRA can only be imposed when both the husband and wife will be in a position to share a common roof for the purpose of attending their respect places of employment. The argument of Mr.

Datta and the circulars relied upon by him do not persuade this Court to take any different view.

It is well settle that a Bench of lesser quorum cannot disagree or dissent from the view of the law taken by a Bench of larger quorum and that as such the judgment delivered by the Hon'ble Appeal Court is binding upon this Court."

No different view is called for in the present case also.

I dispose of this writ petition with a direction upon the State to release the house rent allowance of the petitioner as per his entitlement within a period of one month from the date of communication of this order.

The amount deducted towards the house rent allowance of the petitioner by the State shall be refunded with 7% interest per annum.

Accordingly, WPA 5168 of 2019 is disposed of. Urgent photostat certified copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.

(Kausik Chanda, J.)