ASHOK BHUSHAN, J. - (1.) HEARD the petitioner in person and Sri Alok Kumar Singh, learned Standing Counsel for the respondents.
(2.) BY this writ petition, the petitioner has prayed for a writ of certiorari quashing the order dated 10th November, 2000 issued by the Director, Technical Education, U.P., Kanpur directing for stopping payment of house rent allowance to the petitioner with immediate effect and for taking steps for recovery of house rent allowance irregularly paid to the petitioner. A writ of mandamus has also been sought directing the respondents No.2 and 3 not to recover the house rent allowance already paid to the petitioner with further direction to pay him the house rent allowance month by month admissible under the law. Counter affidavit, supplementary counter affidavit, rejoinder affidavit and the supplementary rejoinder affidavit have been exchanged between the parties. The petitioner as well as learned Standing Counsel have also given their written submissions. Brief facts of the case as emerge from the pleadings of the parties are; the petitioner was appointed as Lecturer in Mathematics in the Institute of Engineering and Rural Technology (I.E.R.T.), Allahabad on 6th September, 1983. The petitioner's wife Dr. Kaumudi Srivastava joined as Lecturer in Sanskriti in the Rajashri Tandon Mahila Mahavidyalaya on 31st March, 1989. Both the institutions were receiving Government aid. Both the petitioners were receiving house rent allowance from their respective institutions till January, 1996 when the house rent allowance of petitioner's wife was stopped by the Principal of Rajashri Tandon Mahila Mahavidyalaya on the ground that she is not entitled to receive the same since her husband is already receiving the house rent allowance. The petitioner gave in writing that the house rent allowance to the petitioner be not paid and the house rent allowance to the petitioner's wife be restored with effect from March, 1996 The house rent allowance of the petitioner was stopped and that of his wife was restored with effect from March, 1996. The petitioner submitted a representation on 17th February, 1997 to the Director, I.E.R.T. seeking payment of house rent allowance as well as arrears of house rent allowance on the strength of the Division Bench judgment of this Court in the case of Dr. Maya Rani Srivastava vs. The Director (Higher Education), U.P., Allahabad and others reported in 1996(3) E.S.C. 474 (All.). The petitioner submitted reminders. The Director, I.E.R.T. by order dated 5th September, 1997 directed for payment of house rent allowance to the petitioner in pursuance of which the Joint Director, Technical Education, U.P. (East Zone), Varanasi started payment of house rent allowance to the petitioner from October, 1997. The petitioner thereafter submitted another representation for payment of arrears of house rent allowance from March, 1996 to September, 1997. On such representation of the petitioner, the Director, Technical Education wrote to the State Government seeking appropriate direction for stopping the house rent allowance of the petitioner. In the reference letter dated 11th July, 2000 of the Director, Technical Education it was stated that when husband and wife both are residing in the same city and in the same house, both are not entitled for house rent allowance and the judgment of this Court in Dr. Maya Rani's case (supra) cannot be applied in all matters. The State Government wrote a letter on 21st October, 2000 to the Director, Technical Education after receiving which letter, the Director, Technical Education issued an order dated 10th November, 2000 for stopping the payment of house rent allowance to the petitioner and for taking steps for recovery of irregularly paid house rent allowance to the petitioner and further to submit a report of responsible official in that regard. This writ petition has been filed by the petitioner challenging the aforesaid order.
(3.) IN the counter affidavit filed by the State it was stated that in view of the clear policy of the State that if husband and wife both are in the Government service, the house rent allowance is not payable to both of them, hence the order issued were perfectly in accordance with law and the petitioner was not entitled for payment of house rent allowance. The petitioner in his rejoinder affidavit has again relied on the Division Bench judgment of this Court in Dr. Maya Rani's case (supra) and has stated that against the said judgment special leave petition filed by the Director (Higher Education) has also been dismissed on 7th July, 1997. Copy of the Government order dated 15th December, 1981 with regard to house rent allowance has also been brought on the record as Annexure-3 to the rejoinder affidavit. In the supplementary counter affidavit filed by the State, reliance has been placed on the Government order dated 15th December, 1981, specifically paragraph 5 and 7, and the office order dated 28th February, 1984 clarifying paragraph 4(5) of the Government order dated 15 th December, 1981. Copy of the circular dated 31st July, 2003 of the Director, Technical Education has also been brought on the record by which all Joint Directors and Principals were communicated that in accordance with the Government order 28th February, 1984 and 28th April, 2002 if husband and wife are residing in the same city then only one of them is entitled for house rent allowance. The petitioner in his rejoinder affidavit replying to the supplementary counter affidavit has stated that the said Government order dated 15th December, 1981 is applicable if both husband and wife are in State Government service. It was stated that petitioner's wife is teacher in Rajashri Tandon Mahavidyalaya which received aid from the State Government up to 13th July, 2005 and with effect from 14th July, 2005 it has become a constituent college of the University of Allahabad, which has been declared as Central University with effect from 14th July, 2005. The petitioner is living in the accommodation owned by him, hence he is entitled for house rent allowance. With regard to Government order dated 28th February, 1984, it has been stated that the said Government order is erroneous, confusing and illogical. It was stated that house rent allowance is payable to both of them. The Government order dated 28th February, 1984 as well as the Government order dated 15th December, 1981 are stated to be violative of Articles 14 and 16 of the Constitution of India. The circular dated 31st July, 2003 of the Director, Technical Education has also been stated to be arbitrary and violative of Articles 14 and 16 of the Constitution of India. Referring to the supplementary rejoinder affidavit, the petitioner has stated that the Government order dated 15th December, 1981 had come to an end on 30th June, 1988 after issuance of the Government order dated 19th September, 1988, hence restriction if any has now come to an end. Copy of the Government orders dated 19th September, 1988 and 11th June, 1999 have been brought on the record along with the supplementary rejoinder affidavit. Reliance has also been placed on the Government order dated 8 th December, 2008.;