JUDGMENT :

Harish Tandon, J.

1. The instant review application has been taken out assailing the judgment and order dated 20th May, 2022 passed in WPST no. 102 of 2020 primarily on two grounds. Firstly, there is an error apparent in the said judgment on the face of the record and secondly, there was a mistake on the part of the arguing Counsel in not referring several Government orders issued by the Finance Department, Government of West Bengal releasing the instalments of Dearness Allowance (for short, “DA”) to its employees with effect from April 1, 2008 to January 1, 2019.

2. Though the several grounds have been taken for review of the said judgment and order in the memorandum of review as well as an application filed therein, yet, the learned Advocate General has squeezed his argument on the aforesaid two points adumbrated herein before.

3. Being conscious of the scope of review provided under Order 47, Rule 1 of the Code of Civil Procedure and the power of the Court in exercising such powers, the salient facts of the instant case is required to be narrated for the purpose of brevity, clarity and dealing with the points urged before us by the State of West Bengal.

4. The 5th Pay Commission was set up by the State of West Bengal in the year 2008 to ascertain and recommend the revision in the structure of emoluments to the State Government employees including the Dearness Allowances in juxtaposition with the actual Cost-of-Living Index. On the basis of the recommendation of the 5th Pay Commission, the State Government accepted the recommendations to the extent which is reflected in ROPA Rules, 2009. There is no ambiguity in the mind of the litigants that the aforesaid Rules of 2009 was promulgated in exercise of the powers enshrined in the Constitution and assumed the character of statutory document. The said rule is exhaustive and further imbibed within itself several incidents of allowances including the Dearness Allowance.

5. The principal grievance of the respondents herein are against the non grant/disbursement of the Dearness Allowance in terms of the said recommendation as well as the ROPA Rules, 2009. Initially, several pleas were taken including that the State cannot devise its own method of ascertaining the DA but should compute the same in the similar fashion that of the Central Government. Another plea was taken that the Central Government has adopted a methodology of computing the DA twice in a year which was initially accepted and followed by the State Government but later on there has been irregularities in disbursement thereof. The respondents also claimed that there must be an equality in payment of the disbursement of the DA to the employees of the State Government and cannot discriminate the employees’ positioned within the State and outside.

6. The State took a stand that the payment of the Dearness Allowance to its employees is not a legally enforceable right and falls within the absolute prerogative of the State either to grant or refusal to grant the Dearness Allowances. A further plea was taken that although the 5th Pay Commission was set up to ascertain various issues or aspects but it is mere recommendation which may or may not be accepted by the State Government in its entirety.

7. The Tribunal dismissed the said application holding that it is within the discretionary domain of the State Government to pay or disburse the Dearness Allowance to its employees and, therefore, the inaction and/or refusal in this regard cannot result in denial of an accrued right. It was further held that even if the State Government have acted upon the recommendation of the 5th Pay Commission to a certain extent but it does not ipso facto lead to the situation where the State is bound to carry out the same to its logical conclusion. The Tribunal further held that the claim of the discrimination in the matter of payment of Dearness Allowance to the employees posted within the State of West Bengal and their counterpart outside the