RABINDRA NATH SENGUPTA Vs. FINANCIAL COMMISSIONER & SECY.
LAWS(CAL)-1994-5-20
HIGH COURT OF CALCUTTA
Decided on May 17,1994

Rabindra Nath Sengupta Appellant
VERSUS
Financial Commissioner And Secy. Respondents




JUDGEMENT

Bhagabati Prosad Banerjee, J. - (1.)This is an appeal against the judgment and order dated 3rd June, 1992 passed by the learned trial Judge dismissing the writ application. The question involved in the writ application was whether the writ petitioners who occupy Government accommodation were entitled to house rent allowance or not. The contentions of the writ petitioners were that they were to pay house rent in respect of the accommodation occupied by them and they were entitled to house rent allowances. It is not in dispute that prior to issue of Notification No. 432F dated 12th Jan., 1990 issued by the Secretary, Department of Finance, Government of West Bengal, in connection with the West Bengal Government Service (Revision of Pay and Allowances) Rule, 1990 all the Government employees were equally entitled to and were getting house rent allowances. It is stated that before 1st Feb., 1977 employees living in accommodation namely, flats/quarters and/or premises provided by the State Government were required to pay house rent either at a fixed standard rate or on percentage of pay basis by option and those employees were not allowed to draw house rent allowance. It is stated that the other two categories of employees living in their own house or in private rented house were allowed to draw house rent allowance at the rate of 10% of basic pay subject to certain terms and conditions. But in case of employees living in Government accommodations they were asked to exercise option either to pay the assessed rent that may be fixed by the Government in accordance with the accepted principles pies and draw the admissible house rent allowances or to pay a fixed percentage of their salary as rent and forego the house rent allowances. By memorandum dated 2nd May, 1984 the Government of West Bengal issued the following rules:-
"Subject : Compensatory House Rent Allowance.

Under the existing provisions as continued in para 6 of Finance Department Memorandum No. 1925-F, dated 21.10.1984 as amended, read with Memorandum No. 46-F, dated 3.1.1975, house rent allowance is admissible to both husband and wife so long as pay withdrawn by each of them does not exceed Rs. 500.00 per month. The allowance is payable to only one of them when the pay of one or both exceeds Rs. 500.00 per month.

(2.)The matter has been further reviewed by the Government and the Governor has been pleased to decide, in super-session of para 6 of Memorandum No. 1925-F, dated 21.10.1984 as amended, and Memorandum No. 46-F, dated 3.1.1975, as follows:-
(a)(i) In a case where husband or wife is a State Government employees and the spouses is an employee either of the State Government or of the Central Government or any other State Government or of an undertaking of a State or Central Government or of an education institution or a local body etc., the allowance at usual rate will be admissible to both of them without reference to there certificate provided the total say of husband and wife taken together does not exceed Rs. 1,000.00 per month.

(ii) If the total pay of the husband and wife taken together exceeds Rs. 1,000.00 per month, the allowance as usual rates will be admissible to both, the total H.R.A. drawn by them being subject to a maximum of 15% of pay of both husband and wife taken together or both Rs. 275.00 p.m. whichever is less. However, for claiming total H.R.A. at a rate higher than Rs. 150.00 p.m. rent certificate will have to be produced and in such cases, the total H.R.A. shall be limited to the actual rent paid.

(b)(i) Where both husband and wife are State Government employees both of them will furnish joint declaration to their respective Heads of Offices. Each Head of Office will determine the H.R.A. admissible to the Government employee under his control in accordance with the provisions contained in para 2(a) of this memorandum.

(b)(ii) Where the husband or wife of a State Government employee is an employee of the Central or any other State Government or of undertaking of a State or Central Government or of an educational institution or a local body etc. the State Government employee will submit a declaration jointly with his/her wife/husband to the concerned Head of Office, who will determine the HRA admissible to the State Government employee in accordance with para (2) of this memorandum.

The declaration as mentioned above must be obtained by the Head of Offices in Jan. and July of every year. All Head of Offices should strictly ensure that no house rent allowance is drawn in respect of a Govt. from whom such declaration has not been received. A model declaration form is enclosed.

3. In partial modification of para 10(a) of Memorandum No. 1925-F, dated 21.10.1984 as substituted by Memorandum No. 111745-F, dated 19.11.82 the Governor is further pleased to direct that for the purpose of drawal of house rent allowance, documentary, evidence will not be required upto basic pay including special pay, if any of Rs. 1,000.00 p.m. i.e. the dearness pay will not be taken into account for this purpose unless house rent allowance is claimed on an amount more than Rs. 1,000.00.

4. The Governor is also pleased to decide that in respect of employees occupying accommodation owned/leased or requisited by Government and paying a fixed percentage of pay as house rent, house rent Tall be deducted on their basic pay (including special pay if any) only and D.P. shall not be taken into account for this purpose.

5. The other conditions for drawal of house rent allowance as contained in Memorandum No. 1925-F, dated 21.10.1984 as amended, shall apply.

6. This order takes effect from 1st April, 1984.

Sd/- P.K. Sarkar,

Secretary to the Govt. of West Bengal."

With effect from 1st Jan., 1988 the house rent allowance was made 15% of basic pay subject to a maximum of Rs. 800.00 per month and the said house rent allowances at the said rate was paid without reference to the quantum of the rent paid, by all Government employees (other than those provided with accommodation owned/hired by government). The Learned Trial Judge on consideration of the matter held that the classification, between those enjoying accommodation and those not, was reasonable and had a nexus to the object sought to be achieved, viz., to provide for accommodation or at least the ability to obtain the maintain the accommodation in keeping with an officer's status. It was further held that the amount of house rent allowance to be paid was a matter of policy and the question of policy could not be interfered with by the Court unless the same could be shown blatantly unreasonable. It was also held that the policy was reasonable and could not be interfered with.

(3.)The only question involved in this case is whether the withholding of the housing rent allowances to the employees who are occupying flats in Government Housing Estates on payment of rent and as a licensee is discriminatory or not. Originally the house rent allowance was given to all categories of Government employees at a fixed rate. Subsequently, it was decided to give house rent allowances to the employees of the State Government who are not occupying any tenanted but owners of their respective premises for which they have not to pay any rent. The house rent allowances were given to the employees of the State Government who are tenant and pay rents to their respective landlords but the exception was made to the employees of the State Government who are occupying the housing flats owned by the Govt. for which they are also paying rents. It is now well established that while article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification two conditions must be founded namely (a) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (b) that the differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different basis, namely geographical, or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. (See Ram Krishna Dalmia Vs. Justice Tendolkar, AIR 1958 SC 538 and other case laws which this consistent view has been taken by the Supreme Court).


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