D.S. Tewatia, J.@mdashThe Petitioners, who are employees of the Punjab Government, have claimed that their place of posting and residence were located in such villages or places, as fall within 5 miles (8 kilometers) from the periphery" of Chandigarh and thus are entitled to the payment of city compensatory allowance from the date on which they came to be so posted/resided in such villages.
2. The Petitioners have alleged in the petition that in the year 1975 the Punjab Government had decided that such of the government employees as were posted in Chandigarh/Mohali or within 5 miles (8 kilometers) of the periphery thereof or were residing in Chandigarh/Mohali or in places within 5 miles (8 kilometers) of its periphery would be entitled for the grant of city compensatory allowance.
3. On 11th December, 1978, the Government clarified that the given distance of 5 miles/8 kilometers shall be measured as per roads or tracks and not by crow flight; that the city compensatory allowance in question was stopped by Respondents 2 and 3 without giving any notice or opportunity to the Petitioners. The Petitioners have sought a direction to the Respondents for continuing to pay the compensatory allowance.
4. Since all the petitions (C.W.P. Nos. 5015, 5444, 5445, 5470, 5810, 5811, 5812, 6259, 6307, 6544, 6545, 6881 and 6916 of 1986 raise common questions of law and fact, we, therefore, propose to decide them by one order in Civil Writ Petition No. 6259 of 1986:
5. In the written statement filed on behalf of the Respondent-State it has been asserted that the decision to grant city compensatory allowance alluded to in the writ petition had been revised,-vide the Punjab Government circular letter No. 15/3/79-8FR/358, dated 14th January, 1980 and it was decided that only such employees would be entitled to the payment of city compensatory allowances, who were posted at Chandigarh and Mohali and not to those, who were posted in places at a distance of 5 miles (8 kilometers) from the peripheries of said two cities; that in view of the aforesaid decision of the government, the Petitioners were not entitled to payment of any city compensatory allowance from the aforesaid date, i.e., 14th January, 1980; that the Petitioners were not entitled to be given any opportunity of hearing before discontinuing the payment of city compensatory allowance in terms of the aforesaid government decision.
6. Counsel for the Petitioners has canvassed that the payment of compensatory allowance in terms of 1975 decision of the government had become a vested right of the Petitioners and they could not be divested of that right without being afforded an opportunity of hearing. In support of his submission, be cited a Single Bench decision of this Court rendered in Harchand Singh and Ors. v. The State of Punjab etc. C.W.P. 1758 of 1979 decided on 31st March, 1986 and a Division Bench decision of this Court rendered in Shamsher Singh and Ors. v. The State of Punjab etc. C.W.P. 3988 of 1986 decided on 18th September, 1986 approving the said Single Bench decision.
7. Mr. H.S. Rair, Deputy Advocate-General, Punjab, on the other hand contended that the two Division Benches of this Court have taken a contrary view. In this regard he referred to the decision of the Division Bench rendered in Jit Singh and Ors. v. The State of Punjab etc. C.W.P. 8359 of 1976 decided on 19th May, 1977 and a Division Bench decision rendered in The State of Punjab etc. v. Harnek Singh and Ors. L.P.A. 106 of 1977 decided on 17th June, 1980.
8. We find no merit in the contention advanced on behalf of the Petitioners. For one thing the payment of city compensatory allowance to the Petitioners by the State Government was by way of concession. It was, open to the government to withdraw the said concession. Nobody could urge that the government before deciding to withdraw the concession should have heard any such government employee. The position is not different when a given right is created by the statutory provision or executive instructions. The given statute or the executive instructions could be amended or withdrawn in a manner as to do away with the right created by earlier provisions of the statute or instructions. No body could contend that before modifying the statute or modifying the executive instructions the beneficiaries under the existing statute and the executive instructions should be afforded an opportunity.
9. The Division Bench in Jit Singh''s case (supra) had virtually taken the same view in regard to the right of hearing. The facts in that case were that the government had modified the existing instructions regarding the payment of house rent allowance by clarifying that the distance of 5 miles (8 kilometers) from the given towns would be measured by track/roads and not by crow flight. As a result of this decision, the government stopped paying house rent allowance to such employees whose place of residence/posting although was within 5 miles (8 kilometers) by crow flight but was beyond 5 miles (8 kilometers) when measured by track/roads. The affected employees challenged the discontinuance of house rent allowance in this Court. On behalf of the Petitioners, a contention was raised that the decision to discontinue the payment of house rent allowance without affording an opportunity of hearing was illegal and against the principles of natural justice. Goyal, J. who delivered the opinion for the Bench repelled the contention with the following observations:
The grant of the house rent allowance was only a concession given by the State to its employees upon certain conditions and that concession having never been incorporated in any statutory rule could be withdrawn or the conditions for its payment modified at any time unilaterally by the State. The concerned authorities in stopping the payment of the house rent allowance to the Petitioners only gave effect to the later circular (Annexure P-3) and this, in our view, did not involve the reversal of any prior decision conferring any benefit on the Petitioners which could give rise to a right to the Petitioners of being heard prior to the stopping of the payment of the house rent allowance.
This decision was approvingly quoted by a later Division Bench in Harnek Singh''s case (supra). In this regard the following observations of the later Division Bench deserve noticing:
Lastly it calls for notice that in Jit Singh''s case it has been held that the house rent being admittedly not statutory and in the nature of a concession cannot only be varied or revised but even withdrawn by the Government....
10. Coming now to the decision relied upon on behalf of the Petitioners, it may be observed that the ratio of Single Bench''s decision in Harchand Singh''s case (supra) is not attracted to the facts of the present case. That was a case in which the instructions conferring right to receive city compensatory allowance was not modified or withdrawn. In that case a bald plea was taken on behalf of the State that the Petitioners were not eligible to get the city compensatory allowance and, therefore, the same was rightly discontinued with effect from April, 1979.
11. When the instructions or the law conferring benefit remained in operation the benefit flowing from the same to an individual could be discontinued if the given individual no longer fulfils the requisite conditions laid down in the given instructions for making him eligible to receive the benefit. Such facts being peculiar to the individual, it would be in the fitness of things that the given individual is given an opportunity to explain and show that the requisite conditions making him eligible to receive the benefit remained unchanged.
Such is not the case here.
A Division Bench''s order passed in limine in Shamsher Singh''s case (supra) was also relied upon by the Petitioners. It is in the following terms:
This petition is covered by the ratio of this Court''s decision rendered in C.W.P. No. 1758 of 1979, decided on 31st March, 1986.
Hence, this petition is allowed in the same terms inasmuch as in the present case also the compensatory allowance had been stopped without affording any opportunity of hearing to the Petitioners.
The Respondents shall be at liberty to take a fresh decision in the matter after hearing the Petitioners.
12. It would be seen that the Division Bench while deciding Shamsher Singh''s case (supra) merely followed the decision of the learned Single Judge, which as already observed was correctly decided in relation to its own facts. In Shamsher Singh''s case, the State had not filed any written statement, and, therefore, the Bench did not examine the matter in depth in order to see as to whether in fact the ratio of the Single Bench''s decision in Harchand Singh''s case, (supra) covered the facts of the case before the Division Bench. In the circumstances it would be taken that the Division Bench proceeded on the assumption that the ratio of the decision in Harnek Singh''s (supra) was attracted to the case in hand. The ratio of the aforesaid Single Bench judgment we have already considered. In view of this, we would take, that the Division Bench decision had approved the ratio of that case as we too in this case are doing. We are of the view that the Division Bench judgment to which one of us was a party, did not lay down a proposition of law that the employees receiving the city compensatory allowance would be entitled to a hearing before the same is discontinued as a result of change of instructions or the law conferring the said benefit.
13. Mr. R.K. Chopra, the learned Counsel for the Petitioners, drew our attention to a Supreme Court decision rendered in Santokh Singh and Ors v. State of Punjab and Ors. Civil Appeals 31 and 32 of 1984 decided on 17th December, 1985 and urged that it would be volatile of Article 14 of the Constitution if persons similarly situated are entitled to a benefit to which the Petitioners in the present case would be held ineligible. The facts of the case before their Lordships were that the State Government pursuant to the decision of a Single Bench of the High Court rendered in Tilak Raj v. The State of Punjab C.W.P. 656 of 1977 decided on 18th March, 1977, gave running pay scales of Masters to several untrained Masters from the date of their appointment. Later on the decision in Tilak Raj''s case (supra) was not approved by a Division Bench in Shervinder Raur v. State of Punjab C.W.P. 3674 of 1977 decided on 12th September, 1979. The State Government after the decision of the Division Bench refused to give the running pay scales of Masters to the remaining untrained Masters. It is in the light of that that their Lordships ordered the State Government to pay the running grade to the remaining teachers also because Tilak Raj''s case (supra) had become final and it would be unthinkable that the State Government would be paying running grade to some Masters and denying the same to other Masters, who were identically situated.
14. There is no denying the justness of the proposition enunciated by their Lordships.
15. Such a situation is not going to arise in the present case in view of the decisions cited on behalf of the Petitioners, because the effect of the said decisions is only this that in regard to the Petitioners who had filed those petitions, the State Government would hear them and then discontinue the payment of city compensatory allowance. Unlike the Tilak Raj''s case (supra), those decisions have not acquired the cast iron mould.
16. We will direct the State Government to comply with the formality of hearing in regard to the Petitioners of those cases and take an immediate decision, particularly in regard to such employees to whom the payment of city compensatory allowance was liable to be discontinued as a result of the later instructions dated 14th January, 1980 (Annexure R-3).
17. For the reasons aforementioned, we find no merit in these petitions and dismiss the same in limine.
