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2018 Supreme(Cal) 233
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
DEBASISH KAR GUPTA, SHEKHAR B. SARAF, JJ.
Confederation of State Government Employees, West Bengal & Ors. - Appellant
Versus
The State of West Bengal & Ors. - Respondent
W.P.S.T. No. 45 of 2017
Decided on : 31-08-2018
Advocate Appeared:
For the Petitioners:Mr. Sardar Amjad Ali, Ld. Senior Advocate, Mr. Prabir Chatterjee, Mr. Abhijit Chakraborty, Mr. Masum Ali Sardar
For the State :Mr. Kishore Dutta, Ld. Advocate General, Mr. Joytosh Majumder, Ld. Government Pleader, Mr. Siddhartha Ghosh
For the Respondent:Mr. B.R. Bhattacharya, Ld. Senior Advocate, Mr. Firdous Samim
The claim of the employees serving under the Government of West Bengal for Dearness Allowance is based on legally enforceable right on the all employees serving under the Government of West Bengal up to such extent of the recommendations of the 5th Pay Commission which has been accepted by the Government of West Bengal by virtue of the provisions of sub-rule (1) Rule 12 of ROPA Rules, 2009 read with paragraph 10 of the clarificatory memorandum bearing No.1691-F dated February 23, 2009 on ROPA Rules, 2009 issued by the Government of West Bengal, Finance Department, Audit Branch, and paragraph 3 of memorandum bearing No.1692-F dated February 23, 2009 in the matter of drawl of Dearness Allowance in revised pay structure under the ROPA Rules, 2009 issued by the Government of West Bengal, Finance Department, Audit Branch.
Headnote:
DEARNESS ALLOWANCE - EMPLOYEES OF THE GOVERNMENT OF WEST BENGAL - RIGHT TO - EXTENT OF ACCEPTANCE OF THE RECOMMENDATIONS OF THE 5TH PAY COMMISSION BY THE GOVERNMENT OF WEST BENGAL - DISCRIMINATION IN THE MATTER OF PAYMENT OF DEARNESS ALLOWANCE - WHETHER THE CLAIM OF THE EMPLOYEES SERVING UNDER THE GOVERNMENT OF WEST BENGAL FOR DEARNESS ALLOWANCE IS A LEGALLY ENFORCEABLE RIGHT? - WHETHER THE CLAIM OF THE EMPLOYEES SERVING UNDER THE GOVERNMENT OF WEST BENGAL FOR DEARNESS ALLOWANCE ON THE BASIS OF THE RECOMMENDATIONS OF THE 5TH PAY COMMISSION IS LEGALLY ENFORCEABLE RIGHT? - WHETHER THE DISCRIMINATION IN THE MATTER OF PAYMENT OF DEARNESS ALLOWANCE TO THE EMPLOYEES OF THE STATE OF WEST BENGAL WITH THEIR COUNTERPARTS SERVING IN BANGLA BHAWAN AT NEW DELHI AND YOUTH HOSTEL IN CHENNAI INCLUDING THE EMPLOYEES OF WEST BENGAL STATE ELECTRICITY DEVELOPMENT CORPORATION REQUIRED CONSIDERATION?
Fact of the Case:
The petitioners, an association of employees serving under the Government of West Bengal, filed a writ petition challenging the final order of the West Bengal Administrative Tribunal dismissing their original application seeking release of 50% dearness allowances due up to January 2006, immediate compliance with the report and recommendations of the 5th Pay Commission, release of 50% dearness allowances as the State Government, grant of 50% of the Dearness Allowances as that of the Central Government with arrear up to January 2016.
Finding of the Court:
1. The claim of the employees serving under the Government of West Bengal for Dearness Allowance is based on legally enforceable right on the all employees serving under the Government of West Bengal up to such extent of the recommendations of the 5th Pay Commission which has been accepted by the Government of West Bengal by virtue of the provisions of sub-rule (1) Rule 12 of ROPA Rules, 2009 read with paragraph 10 of the clarificatory memorandum bearing No.1691-F dated February 23, 2009 on ROPA Rules, 2009 issued by the Government of West Bengal, Finance Department, Audit Branch, and paragraph 3 of memorandum bearing No.1692-F dated February 23, 2009 in the matter of drawl of Dearness Allowance in revised pay structure under the ROPA Rules, 2009 issued by the Government of West Bengal, Finance Department, Audit Branch. 2. The claim of the employees serving under the Government of West Bengal to get Dearness Allowance at a rate equivalent to that of the employees of the Central Government requires adjudication upon consideration of the relevant materials on record for the purpose indicated hereinabove. 3. The claim of the employees serving under the Government of West Bengal for Dearness Allowance at a rate equivalent to that of the employees discharging their functions in Banga Bhawan at New Delhi and in Youth Hostel at Chennai requires consideration of the materials which may be brought on record by the Government of West Bengal for adjudication of the issue of arbitrariness in payment of Dearness Allowance at differential rates.
Issues: 1. Whether the claim of the employees serving under the Government of West Bengal for Dearness Allowance is a legally enforceable right? 2. Whether the claim of the employees serving under the Government of West Bengal for Dearness Allowance on the basis of the recommendations of the 5th Pay Commission is legally enforceable right? 3. Whether the discrimination in the matter of payment of Dearness Allowance to the Employees of the State of West Bengal with their counterparts serving in Banga Bhawan at New Delhi and Youth Hostel in Chennai including the Employees of West Bengal State Electricity Development Corporation required consideration?
Ratio Decidendi: 1. The recommendation of a Pay Commission is binding upon the Government only up to that extent which has been accepted by the Government. 2. The claim of the employees serving under the Government of West Bengal for Dearness Allowance is based on legally enforceable right on the all employees serving under the Government of West Bengal up to such extent of the recommendations of the 5th Pay Commission which has been accepted by the Government of West Bengal by virtue of the provisions of sub-rule (1) Rule 12 of ROPA Rules, 2009 read with paragraph 10 of the clarificatory memorandum bearing No.1691-F dated February 23, 2009 on ROPA Rules, 2009 issued by the Government of West Bengal, Finance Department, Audit Branch, and paragraph 3 of memorandum bearing No.1692-F dated February 23, 2009 in the matter of drawl of Dearness Allowance in revised pay structure under the ROPA Rules, 2009 issued by the Government of West Bengal, Finance Department, Audit Branch. 3. The claim of the employees serving under the Government of West Bengal to get Dearness Allowance at a rate equivalent to that of the employees of the Central Government requires adjudication upon consideration of the relevant materials on record for the purpose indicated hereinabove. 4. The claim of the employees serving under the Government of West Bengal for Dearness Allowance at a rate equivalent to that of the employees discharging their functions in Banga Bhawan at New Delhi and in Youth Hostel at Chennai requires consideration of the materials which may be brought on record by the Government of West Bengal for adjudication of the issue of arbitrariness in payment of Dearness Allowance at differential rates.
Final Decision: The writ petition was allowed. The order impugned to this writ application was quashed and set aside remanding the matter back to the learned Tribunal for adjudication of the aforesaid two issues, namely (i) Whether the claim of the employees serving under the Government of West Bengal for Dearness Allowance at a rate equivalent to that of the employees of the Central Government, and (ii) Whether the discrimination in the matter of payment of Dearness Allowance to the Employees of the State of West Bengal with their counterparts serving in Banga Bhawan at New Delhi and Youth Hostel in Chennai, on its merit without being influenced by its earlier observations made in the order impugned to this writ application.
Key Points: - The court held that the claim to Dearness Allowance is enforceable to the extent accepted by the Government of West Bengal under ROPA Rules, 2009 and clarificatory memos (!) (!) . - The Government’s acceptance of the 5th Pay Commission recommendations determines the extent of a legally enforceable right to DA, within the scope of sub-rule (1) Rule 12 of ROPA Rules, 2009 and related memoranda (!) (!) (!) . - The issues of parity with Central Government DA and discrimination for employees in Banga Bhawan Delhi and Chennai require consideration with additional materials and cannot be resolved in a writ petition at first instance; remanded to Tribunal for adjudication on these two issues (!) (!) (!) . - The 5th Pay Commission’s Chapter 10 recommendations on instalments and backlog influenced by the Bihar/West Bengal framework, and the ROPA Rules define the components of existing emoluments including DA (!) (!) (!) (!) (!) (!) . - DA is part of pay structure and is to be related to revised pay structure from 1/1/2006 with no arrears for 2006-2008 as per memoranda 1691-F and 1692-F, but subsequent rates can be determined per guidelines when accepted (!) (!) (!) (!) . - The tribunal’s observations on discretionary prerogative and lack of right were revised; upon acceptance of the 5th Commission recommendations, a legally enforceable right arises (!) (!) . - The judgment emphasizes that Pay Commission recommendations are binding only to the extent accepted and implemented for all employees if references cover all employees; otherwise not binding (!) (!) (!) .
What is the legally enforceable right to Dearness Allowance for employees under the Government of West Bengal as per the 5th Pay Commission recommendations?
What are the circumstances under which Dearness Allowance for West Bengal employees should be at par with Central Government employees, and is discrimination in differential rates permissible?
What is the appropriate course for adjudicating the issues of rate parity with Central Government employees and alleged discrimination between different West Bengal employee groups?
DEBASISH KAR GUPTA, J.
1. This Writ Application is filed against a final order dated February 16, 2017, passed by the West Bengal Administrative Tribunal dismissing the Original Application.
2. The above Original Application was filled by the applicants/writ petitioners before the learned Tribunal seeking following reliefs:-
“(a) A direction upon the respondents authorities to forthwith release the 50% dearness allowances which is due upto January, 2006 immediately within a period of 1 (one) month from the date of receiving of the order;
(b) A direction upon the respondent authorities to immediately comply with the report and the recommendations of the 5th Pay Commission Report positively and without fail within a period of 1 (one) month from the communication of the order;
(c) A direction upon the respondent authorities to release the 50% of dearness allowances as the State Government without releasing the 50% dearness allowances for mere eye-wash set up a 6th Pay Commission who recommended for 10% interim relief upon the basic pay. But no whisper about due 50% dearness allowances and unless the court intervenes into it there may be every possibility of forfeiture of that 50% due dearness allowances which is the penultimate goal and gain of the State Government and the applicants will suffer irreparable loss and injury;
(d) The applicants pray for relief order directing the respondent authorities to grant 50% of the Dearness Allowances as that of the Central Government with arrear up to January, 2016 within a period of two weeks from the date of order;
(e) Costs pertaining to this application and incidental thereto;
(f) Such other further order or orders as Your Lordships may deem fit and proper.”
3. The learned Tribunal arrived at the following findings at the time of dismissing the original application:-
(i) Payment of Dearness Allowance to the employees of the Government of West Bengal was absolute prerogative falling with the discretionary domain of the Employer (read the State Government) and inaction and/ or refusal on the part of former cannot result in denial of an accrued right of the Employee for getting Dearness Allowance;
(ii) Though part of the recommendation of 5th Pay Commission might have been acted upon, it did not entail that as a necessary corollary the same had to be carried out to its logical conclusion;
(iii) The issue of discrimination in the matter of payment of Dearness Allowance to the Employees of the State of West Bengal with their counterparts serving in Banga Bhawan at New Delhi and in Youth Hostel at Chennai including the Employees of West Bengal State Electricity Development Corporation, could not be grappled and no analogy on the basis of the same could be derived in this context.
4. Necessary to point out that considering the submission made by the learned counsel appearing for the State respondents to admit the original application and to permit them to file reply to the same, the learned Tribunal was of the view that keeping the matter hanging for reply would serve no purpose as the issue was otherwise apparent and settled or in other words, according to the learned Tribunal, waiting for Reply upon admission would have been bringing Cinderella to ball.
5. It is submitted by Mr. Sardar Amjad Ali, learned Senior Advocate appearing on behalf of the petitioners, that the 5th Pay Commission was constituted by the State Government for recommending the revised pay structure of the State Government employees covering the issues relating to Dearness Allowance, Medical Allowance, House Rent Allowance and Non Practicing Allowance. According to Mr. Ali, the need for payment of Dearness Allowance so as to protect the loss of the Government employees caused by unabated pressure of inflation in the economy was dealt with in Chapter 10 of the report dated February 12, 2009, submitted by the above Pay Commi
