HRA is not payable if a government servant's spouse receives government accommodation; recovery of overpaid HRA is valid when claimed through misrepresentation.

JUDGMENT

Talwant Singh, J. The petitioner has challenged the final order dated 03.09.2021, passed in OA No. 862/2019 by the learned Central Administrative Tribunal (hereinafter referred to `the CAT'), Principal Bench, New Delhi.

2. In brief, the case of the petitioner is that he was a Group `A' Government officer posted in Delhi and his wife, who is an employee of Indira Gandhi National Open University (IGNOU), also posted at Delhi and she was allotted a residential accommodation since July, 2003. Petitioner was residing with his wife but on 15.05.2007, he informed his department that he had shifted to his own flat at Shipra Sun City, Indirapuram, Ghaziabad but his wife continued to stay at her official accommodation in IGNOU Campus due to her work-related exigencies. The petitioner was granted House Rent Allowance (HRA) w.e.f. May 2007.

3. On 03.03.2016, when petitioner was posted in Delhi Milk Scheme, a complaint was made regarding HRA being claimed by the petitioner. The authorities then decided that petitioner is not entitled to HRA as per para 5 (c) (iii) of HRA Rules, as his wife was employed in IGNOU. Further, payment of HRA was stopped and recovery of the already disbursed amount of Rs.13,76,697/- for the period from May, 2007 to March, 2017 was ordered to be made.

4. The petitioner, then, challenged the aforesaid order being arbitrary, illegal, discriminatory and against the spirit of Article 14 of the Constitution of India before CAT by filing OA No. 862/2019. Prior thereto, the petitioner had submitted a representation to his department on 11.04.2017; it was rejected on 14.02.2019. During the pendency of the OA filed by the petitioner, recovery was stayed vide order dated 25.03.2019.

5. The petitioner retired from service on 31.01.2021. On 03.02.2021, an amount of Rs.13,76,697/- was withheld by respondents out of his retiral benefits. The OA filed by the petitioner was dismissed on 03.09.2021. Hence, the present petition was filed.

6. We have heard arguments for admission of the writ petition on 28.09.2021 and our considered view is as under.

7. The CAT while dismissing the OA filed by the petitioner observed as under:

"9....The main contention of the applicant has been that the residential accommodation provided to his spouse in IGNOU Campus cannot be considered as Government accommodation as the Universities cannot be considered as Government Department or Government bodies. In support of his claim, he has relied upon the aforesaid judgments of the Hon'ble Karnataka High Court and this Tribunal. The fact, however, remains that IGNOU is an autonomous body under the Central Government, Ministry of Human Resource Development and is fully funded by budgetary support. It is also a fact that this aspect has also been clarified in OM dated 03.04.2017 by Department of Expenditure {E.II (B) Division} vide ID No.2/2/2016-E.II (B) dated 15.09.2016 as under:

"It is clarified that as both the officer & his wife are posted at Delhi (UA) and his wife has been allotted residential accommodation at the same station by IGNOU, which is an Autonomous Body under the administrative control of Ministry of Human Resource Development and is funded by the Central Government, it would imply that accommodation provided to spouse of Director (Cost) would qualify as `Government Accommodation' for the purpose of 5(c)(iii) notwithstanding the judgments of CAT, Mumbai Bench quoted in the reply dated 07.03.2016/30.03.2016 furnished by the officer in response to the clarification sought by DMS/DoAHD&F, since the same were applicable to only the applicants