Point in Issue :
Whether in the facts and circumstances of the case petitioner is entitled to HRA.

K.S. Jhaveri, J.—By way of filing this petition the petitioner – original applicant challenged the judgment and order dated 16th April 2004 passed in Original Application No. 268 of 2003 by the Central Administrative Tribunal, Ahmedabad Bench at Ahmedabad whereby the application filed by the petitioner has been partly allowed.

2. The short facts of the present case are that the petitioner was working with Railways and his wife was working as Senior Clerk in G.G. Hospital at Jamnagar, under the State Government. The petitioner’s wife has been provided Government Accommodation within the medical campus of G.G. Hospital, Jamnagar. She was, therefore, not drawing any HRA and was paying Rs. 450 as house rent for the house allotted in the Campus. The petitioner was drawing House Rent Allowance earlier as Railway Servant.

3. The case of the petitioner is that his wife has not been allotted ‘rent free’ accommodation by the State Government and therefore he is entitled for HRA. His case is that as he was a patient and therefore he is living separately in a rented accommodation in the ground floor as he cannot climb the stairs to the second floor accommodation which was allotted to his wife in GG Hospital Campus. It is his further case that looking to note below Rule 1706 of the Rules HRA is admissible to either of the spouse, as per their choice.

4. As the respondents have stopped paying HRA to the petitioner and passed the recovery order against him without issuing any notice, he has filed the aforesaid Original Application before the Tribunal. The Tribunal while holding that the petitioner is not entitled for HRA also held that respondents are not entitled to recover the amount of HRA which has already been paid to the petitioner as the petitioner has not committed any fraud or misrepresentation of the fact regarding allotment of Government accommodation to his wife by the State Government. The petitioner, therefore, filed the present petition being Special Civil Application No. 5864 of 2004 challenging the judgment and order of Tribunal vide which the petitioner was held not entitled for HRA while Special Civil Application No. 405 of 2005 is filed by the Railways Department challenging the judgment and order of the Tribunal insofar as it held that the respondents are not entitled to recover the amount of HRA which has already been paid to the petitioner.

5. Mr. Pathak has mainly contended that in view of the note contained below Rule Rule 1706 of the Rules HRA is admissible to either of the spouse, as per their choice. The learned counsel for the respondents submitted that in view of the Railway Board Circular dated 4.3.2002 and submitted that in view of the Rule 1706(a)(i)(e) if petitioner’s wife has been allotted accommodation at the station by the State Government, then the petitioner is not entitled to HRA even if he resides separately.

6. We have heard learned counsel for the parties and perused the record.

7. In view of the fact that the government accommodation was given to the wife of the petitioner, on plain reading of Rule 1706 it is very clear that if any one of the spouses is getting the government accommodation in same station, then, the other spouse is not entitled for HRA. The Tribunal in Paragraphs 11, 12 and 13 has rightly considered as under:—

“11. Thus, Para 1706 and all sub-paras, if read togetehr shows that HRA would not be admissible if the employee does not incur any expenditure on rent or he occupies the accommodation provided by the Government or shares in a rent free accommodation or shares accommodation allotted to his wife husband by the State Government. Thus, in any of such situation, HRA would not be admissible. In the present case, admittedly, the applicant’s wife has been allotted Government accommodation, though it is not ‘rent free’. In the light of Sub-para (e) of 1706(a)(i) even if the applicant lives separately, he is not entitled to HRA. The submission of learned counsel that HRA would not be