1 / 12 IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURISDICTION APPELLATE SIDE Item No.D/L.2 Saikat Mukherjee WP.CT NO.210 OF 2026 UNION OF INDIA AND ORS. ] ...Petitioner Versus DIPAK KUMAR MAJI ] ...Respondent Appearance: Ms. Rashmi Bothra and Ms. Garima Raijada, Advocates for the Petitioner Mr. Kallol Basu with Mr. Sakya Maity, Advocates for the Respondent CORAM : RAVINDRA V. GHUGE, CJ. & ARIJIT BANERJEE, J. DATE : 17th September, 2026. JUDGMENT (Per Ravindra V Ghuge, CJ) 1. Rule. Rule is made returnable forthwith and heard finally by the consent of the parties. 2. The Petitioner before us is the Union of India and the Director, Government of India, Ministry of Culture, Library Section, New Delhi and Senior Library and Information Officer, Central 2 / 12 Reference Library, Kolkata. The Respondent is a retired Accounts-cum- Administrative Officer, under the control of the Librarian, Central Reference Library at Kolkata. The grievance of the Petitioner is as regards the Judgment dated 16.07.2026, delivered by the Learned Central Administrative Tribunal, Kolkata Bench (hereinafter referred to as ‘the Tribunal’) in O.A. No.350/461/2020. 3. Having considered the strenuous submissions of the Learned Counsel for the respective sides, we have considered the record placed before us. 4. The Original Applicant was initially appointed as a Lower Division Clerk on 03.08.1982 and later on promoted as the Accounts- cum-Administrative Officer in the Central Reference Library. His wife, Smt. Bijali Maji (Paine) was also a State Government employee, who was posted as a Staff Nurse at Shambhu Nath Pandit Hospital, Kolkata. 5. It is undisputed that in 1997 the Original Applicant’s wife, Smt. Bijali Maji was allotted a government accommodation by the State Government at the Shambhu Nath Pandit Hospital. Therefore, she was not drawing HRA. Being married to her, the Original Applicant started occupying the government accommodation allotted to his wife. 3 / 12 However, he was drawing HRA on the ground that he was not occupying any government accommodation. 6. In 1999, the Original Applicant who was serving as a junior employee, raised an issue as regards the accommodation allocated to his wife, while he continued to draw the HRA. On a clarification sought, the Medical Superintendent, Shambhu Nath Pandit Hospital, responded by stating that the accommodation allocated to the wife of the Original Applicant was a dormitory room with common toilet and not a regular residential staff quarter. The fact, however, is undisputed that she was occupying a government accommodation as a shelter and the Original Applicant, being her husband, was residing along with her in the same accommodation. Consequent to the allotment of such accommodation, the Original Applicant’s wife Smt. Bijali was not drawing HRA in view the Rule that she was occupying a government premises. 7. The Petitioner employer received a complaint from the National Library Staff Association, which was a communication dated 28.09.2006 routed through the Ministry, wherein, it was alleged that the Original Applicant was drawing HRA though he was residing in an accommodation allocated to his wife, a government employee. In response, the Librarian communicated through his letter dated 4 / 12 12.10.2006 to the Under Secretary to the Government of India that the matter was already examined in 1999 and reiterated that the clarification received from the hospital was that the Original Applicant was occupying a dormitory. 8. The Original Applicant pleaded before the Tribunal in the Memo of the Original Appeal, that his wife Smt. Bijali was working as a Staff Nurse in the hospital. A dormitory was allotted to her in 1997 in order to attend to her night duties. No rent was deducted for the occupation of the dormitory, but HRA was paid to her. Such HRA was stopped in 1999 which was towards payment of rent for the dormitory. In the affidavit-in-reply to the O.A., the Department has taken a stand in paragraph13 that the wife of the Original Applicant was denied HRA from 1999 since she was occupying the dormitory and for which separate rent was not being recovered from her. In short, the HRA was stopped as being towards the occupation of the government accommodation. 9. It is canvassed before us by the Original Applicant that the Librarian had called upon for details from the Medical Superintendent in the light of the correspondence adverted to herein above and all doubts were cleared by the Shambhu Nath Pandit Hospital that the wife of the 5 / 12 Original Applicant was allotted one dormitory type room with common toilet and which was not a regular residential staff quarter. 10. The record reveals that the Original Applicant maintained his address for correspondence and his address of residence, as Quarter No.B-4, SSKM Government Quarters, 242, A.J.C. Bose Road, Kolkata-700020. This address is found in all records pertaining to the Petitioner. Previously the address was mentioned as 4, Debendra Lal Khan Road, Kolkata-700025, which is the address of his wife’s accommodation in which he was staying. 11. The Original Applicant superannuated on 31.10.2016. By an office order 61 of 2017-18 dated 21.04.2017, the same Librarian Dr. K.K. Kochukoshy who had earlier entered into correspondence with the Medical Superintendent of the hospital with regard to the said accommodation, passed an order directing recovery of Rs.8,40,795/- from his gratuity, towards the HRA drawn by the Original Applicant since 1999, when he started occupying the government shelter along with his wife. This order has been called in question before the Tribunal. By the impugned Order dated 16.07.2026, passed by the Tribunal in O.A. No.350/431/2020, the view taken by the Hon’ble Supreme Court in State of Punjab and Others vs. Rafiq Masih (White Washer) and 6 / 12 Others, (2015) 4 SCC 334, was followed and action of the Employer of deducting the said amount towards HRA, was quashed and set aside. Interest at the rate of 6% per annum was granted while directing refunding of said amount to the Original Applicant. OUR ANALYSIS AND CONCLUSIONS 12. There is no doubt that if the Original Applicant was occupying a State Government accommodation, he was not entitled for HRA. It is also undisputed that if the Original Applicant was occupying the government accommodation allotted to his wife, who hersself was a government employee, both of them were not entitled for HRA. On this premises, the contention on behalf of the Original Applicant is that the accommodation allotted to his wife was not in the type of a residential bungalow or a quarter. Therefore, such accommodation should not be treated as an accommodation and hence HRA should not be recovered from the Petitioner. 13. We find this submission to be fallacious. If the HRA was not paid to the wife of the Original Applicant since she was occupying a government accommodation, the same principle would apply to the Original Applicant. If the accommodation allotted to the wife of the Original Applicant is not to be treated as a government accommodation 7 / 12 or a shelter provided by the State Government, then both, the wife and the husband would have been entitled for HRA. The fact that the HRA was not paid to the wife on account of occupying a government shelter, legally presupposes that the shelter allotted to her which was in the nature of a one-room home, was treated as a government accommodation and hence the wife was held to be disentitled for HRA from 1994. The Original Applicant started occupying the said accommodation which was allotted to his wife because he got married to her. 14. Our attention is drawn to the instruction regarding ‘Grant of House Rent Allowance to Central Government employees by the Ministry of Finance, Department of Expenditure’. Clause 5.1(iii) under Clause 5 – ‘Conditions for Drawal of House Rent Allowance’ would indicate that if a husband/wife has been allotted accommodation at the same station by the Central Government/State Government etc., he/she resides in that accommodation or he/she resides separately in accommodation rented by him/her, would not be entitled for HRA. As such, it is trite that if the husband was residing with his wife and occupying a government accommodation allotted to the wife in the same station, both would not be entitled to the HRA. 8 / 12 15. We have considered the law laid down by the Hon’ble Supreme Court in Rafiq Masih (supra) and Syed Abdul Qadir Vs. State Of Bihar (2009) 3 SCC 475. The facts emerging in Rafiq Mashi (supra) and Syed Abdul Qadir (supra), are distinguishable from the facts before us. The Original Applicant was occupying the position of ‘Accounts- cum-Administrative Officer’ and was the ‘Drawing and Disbursing officer’ since 2008. He was aware of the Rules applicable. He was conscious of the fact that a one-room accommodation was allotted to his wife who was a government employee and he was residing in the said accommodation along with their son. He used to prepare his bills by including the HRA component and being the DDO he was drawing the said amount. As such, he was personally involved in the process of drawing HRA under his own signature. This is the distinguishing feature from the facts in Rafiq Mashi (supra) and Syed Abdul Qadir (supra), wherein the Hon’ble Supreme Court has held that employees who are in the Class-IV category and who are not instrumental in creating any mischief or in facilitating excess payment at the time of pay fixation, would not be liable for recovery of amount. 16. Another distinguishing feature in the present case is that the Original Applicant purchased a flat in 2011. Since 2011 till his superannuation in 2016, he claims to have lived in the accommodation 9 / 12 allotted to his wife and he did not occupy his own flat. This indicates that he was comfortable with his wife’s accommodation and despite having purchased a new flat, he did not choose to occupy the said flat. The continued occupation of the accommodation allotted to his wife indicated his will and desire to continue to reside in a government accommodation which his wife was allotted. 17. Today, before us, the Original Applicant claims that the accommodation allotted to the wife was not comfortable, it was not spacious and it resembled as dormitory. We find this contention not worth any consideration. We are dealing with the Service provision which mandates that a spouse occupying a government accommodation available to the wife or husband who is in government employment in the same station, would not be entitled for the HRA. The Learned Advocate for the Original Applicant has tendered a signed communication addressed to him, from the Original Applicant dated 17.09.2026 stating therein that in 2011, he shifted to his new flat. There are no pleadings on this issue, either before the Tribunal or before us. 18. We are convinced that the Original Applicant did not act bona fide and with honesty in view of the fact that he was residing in his wife’s government accommodation and yet prepared his salary bills 10 / 12 including the HRA. Being the Drawing and Disbursing Officer, he by his conduct facilitated the payment of such HRA to himself. 19. To a query from the Court as to whether he is willing to give up 75% of the recovered amount in view of the above stated facts, he has responded by stating that the Applicant has given him a letter stating therein that he is an old ailing person suffering from high sugar and other diseases, has to bear huge cost of medicines and his son being unemployed and he is willing to give up 50% of the recovered amount. The said communication is taken on record and marked as ‘X’ for identification. 20. The Learned Advocate for the Petitioner Union of India submits that the Original Applicant does not deserve any sympathy. Being the DDO, he was instrumental in preparing his bills and including the HRA component. Being the DDO he drew such salary knowingly that his wife was occupying a government accommodation and he was sharing the said accommodation along with her. This is not an inadvertent act. This is an act of deceit and dishonesty. She, therefore, submits that the Original Applicant does not deserve any sympathy, lest it would amount to showing misplaced sympathy to the Applicant. 11 / 12 21. We agree with the submission canvassed by the Learned Advocate for the Union of India. However, we also cannot ignore that earlier in 1999, the authorities observed that the wife of the Applicant was occupying a room which was stated to be a dormitory and did not oppose the drawing of HRA by the Applicant on the ground that accommodation of wife was not a regular residential staff quarter. Later on, after the Applicant retired from service, that the Petitioner realised that the Applicant was drawing HRA, illegally. 22. On the one hand, we find that the Original Applicant did not act bona fide and being in an advantageous position of DDO, he included the HRA component in his salary and received the salary including HRA. On the other hand, in the initial period, the Petitioner Employer did not object to such drawing of HRA by the Applicant Employee. Therefore, to balance the equities, keeping in view the that the Original Applicant is now a 70-year-old senior citizen and who claims to be suffering from diabetes, we are of the considered view that 25% of the deducted amount should be paid to him and 75% of the deducted amount should be adjusted against the recovery towards the HRA. Considering the odd figure that would be computed while calculating 25% of the said amount, we direct that the Petitioner would return an amount of Rs.2,11,000/- to the Original Applicant on or before 15th October, 2026. 12 / 12 23. This Petition is, therefore, partly allowed and the impugned Order of the Tribunal stands modified in the above terms. Rule is made partly absolute, accordingly. (Arijit Banerjee, J.) (Ravindra V. Ghuge) Chief Justice