Jammu, Aug 19 : In a petition filed by Bindu Bala seeking quashment of April 28, 2009 order No 67 of 2009 whereby respondent has ordered recovery of Rs 1,01,000 on account of alleged irregular payment of HRA from 05/2005 to 11/2008, order No 163 of 2012 dated 20.04.2012 along with relieving order No Estt/CID Cell/reliev-2012/1345 dated 28.04.2012 whereby the petitioner was transferred from CID Cell, New Delhi to CID (SB) Jammu and PHQ J&K, Srinagar Order No.2065 of 2012 dated 31.05.2012 in so far as it relates to the petitioner whereby she has further been transferred from CID to Armed Zone, Srinagar, and with a further direction to the respondents not to effect further recovery from the salary of the petitioner on the grounds taken in the writ petition. According to the petitioner, she was posted in CID Cell, New Delhi, in 1997 whereas her husband was already working with Principal Resident Commissioner, New Delhi, since April 1996. It is contended that while residing together since 1997, differences erupted between the petitioner and her husband in the month of April, 2005 and petitioner started living separately along with her children in a rented accommodation at C-3, H No 99, Adarsh Colony, Aya Nagar, New Delhi, and resided there upto November 2008 and thereafter the petitioner reconciled with her husband and again started residing with him in his official accommodation.Justice Tashi Rabstan, after hearing both sides, said even if it is presumed that the petitioner was residing separately from May 2005 to November 2008, it is manifestly clear that in terms of Schedule XXII of CSR, the petitioner is not at all entitled to HRA as it specifically worded that "whether he/she resides in that accommodation or he/she resides separately in accommodation rented by him/her.". More so, when counsel for the petitioner, just for argument sake and for Court satisfaction was asked to show any proof as to whether from May 2005 to November, 2008, when allegedly there were strained relations between the petitioner and her husband, was any lis pending before any Court of law in this regard and was there any order from any Court, he side- tracked and ultimately failed to satisfy the Court. Therefore, the plea that has been raised by the petitioner cannot be accepted, particularly, in terms of the Rules position. Court agrees that HRA is a statutory right of any employee, but it is subject to some restrictions as per CSR. If the Courts accept such type of the contentions of employee(s), it may be a very possible loophole for any spouse to make a plea that because of strained relations between them, he/she was putting up in a separate accommodation and notwithstanding the presence of any Rule, it could have been permissible for them to claim HRA. So long as the provision is there regulating the drawing of HRA, this Court has to see that it has application in full force, but, with the restrictions prescribed. The employee was aware of his/her predicament, created by the Rule, but the challenge about its constitutionality thus stands repelled. Justice or equity could be guiding factors for rendering a decision but the result should not offend the test and text of law. Personal convictions regarding justice and fairness cannot form the basis of a judgment, especially when it results in state's largesse being distributed. Justice Rabstan said "he does not find any infirmity, illegality or irregularity in the action of the respondents to effect recovery of undue HRA as per impugned order, which is purely based on the audit of the Accountant General's office and dismissed the petition". (JNF) |