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DA order by Hon'ble High Court, Calcutta




IN THE HIGH COURT AT CALCUTTA 

CIVIL APPELLATE JURISDICTION 

APPELLATE SIDE 

PRESENT: 

THE HON’BLE JUSTICE HARISH TANDON 

THE HON’BLE JUSTICE RABINDRANATH SAMANTA

WPST 102 OF 2020 

THE STATE OF WEST BENGAL & ORS. 

-Vs 

CONFEDERATION OF STATE GOVERNMENT EMPLOYEES, WEST BENGAL &  ORS. 

Mr. S.N. Mookherjee, Learned Advocate General, 

Mr. Amitesh Banerjee,Adv. 

Mr. Debasish Ghosh, Adv. 

Mr. Shayak Chakraborty, Adv. 

 ….. for the Petitioners  

Mr. Bikash Ranjan Bhattacharya,Senior Advocate. 

Mr. Firdous Samim, Adv. 

Ms. Gopa Biswas, Adv. 

Ms. Mousumi Hazra, Adv. 

 ….. for the respondent no. 1 

Mr. Bikash Ranjan Bhattacharya, Senior Advocate. 

Mr. Prabir Chatterjee,Adv. 

Mr. Dilip Chatterjee,Adv. 

Mr. Durga Bhusan Mukherjee, Adv. 

Ms. Debolina Bannerjee, Adv. ….for the respondent no.2

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Mr. Kallol Basu, Adv. 

Mr. Suman Banerjee, Adv. 

Mr. Rohitendra Chandra Deb, Adv. 

Mr. Guddu Singh, Adv. 

 …. For the added respondents 

  

Heard On : 29.04.2022 

Judgment on : 20.05.2022 

Rabindranath Samanta, J:- 

1. This writ petition has been filed by the petitioners the State of  West Bengal through the Chief Secretary and the Principal  Secretary, Finance Department, Government of West Bengal, challenging the judgment and order dated 26.07.2019 passed  by the West Bengal Administrative Tribunal (hereinafter referred  to as the Tribunal) in O.A. No. 1154 of 2016. 

2. Disgruntled at the inaction and discriminatory action on the  part of the State towards grant of Dearness Allowance to its  employees in terms of the West Bengal Services (Revision of Pay  and Allowance) Rules, 2009 (in short ROPA Rules, 2009) the  respondents Confederation of State Government Employees,  West Bengal, Unity Forum, an organisation of the salaried  employees of the State Government and two others namely  Indranil Mitra and Gopal Majumder of the unions brought the  aforesaid original application seeking the following reliefs:- 

“ a. A direction upon the respondents authorities to  forthwith release the 50 % dearness allowance which is  due upto January, 2006 immediately within a period of 1  (one) month from the date of receiving of the order;

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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  upto 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. By the order dated 16.02.2017 the Learned Tribunal dismissed  the application recording the following observations:-

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“ i. Payment of Dearness Allowance to the employees  of the Government of West Bengal was absolute  prerogative falling within 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. Feeling aggrieved by the order of dismissal of the application the  respondent Nos. 1 to 4 preferred a writ petition being WPST No.  45 of 2017 before this Court and a Co-ordinate Division Bench  by the judgment dated 31.08.2018 set aside the order of the 

Tribunal and remanded the matter back to the Tribunal for  fresh adjudication on some issues framed by the Division  Bench. 

5. To discern the observations made by the learned co-ordinate  Division Bench and the issues framed by it for adjudication it 

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will be apposite to excerpt the relevant observations which are  as under:- 

“ 82. In view of the discussions and observations made  hereinabove, I sum up as follows:- 

i) 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. 

ii) 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.

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iii) 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. 

83. The aforesaid second and third 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 in Youth Hostel at Chennai, which  require adjudication after bringing relevant  materials on record, cannot be done in this writ  application acting as a Court of first instance in  view of the principles of law settled in the matter  of L.Chandra Kumar Vs. Union of India, reported  in AIR 1997 SC 1225. The Learned Tribunal is the  appropriate forum to discharge the above function  as a Court of first instance. 

84. As a consequence the order impugned to this  writ application stands quashed and set aside 

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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.” 

6. Dissatisfied with the judgment and order dated 31.08.2018  passed by the Co-ordinate Division Bench the petitioners herein  filed review application being R.V.W.No. 159 of 2018 seeking  review of the judgment. It appears that by a judgment dated  07.03.2019 the review application preferred by the petitioners was  dismissed. However, on the prayer of the learned Advocate  General, the Co-ordinate Division Bench allowed the petitioners  time to file the affidavit-in-opposition before the Tribunal by a  period of three weeks from date, reply if any, one week thereafter.  By the order the Tribunal was requested to expeditiously hear and  decide the matter preferably within a period of two months from  date. 

7. In compliance with the directions made by a Co-ordinate Bench  in WPST No. 45 of 2017 and RVW No. 159 of 2018, the learned  Tribunal heard the original application No. 1154 of 2016 and on  consideration of the materials placed before it disposed of the 

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application vide the judgment and order dated 26.07.2019. In the  judgment the following directions were made by the learned  Tribunal :- 

“ The respondent No. 1, Chief Secretary to the Government of  West Bengal is directed to evolve norms/principles within a  period of three months from the date of this order for release  of DA on the basic pay of the State Government employees  fixed in terms of ROPA Rules, 2009 by taking into  consideration inflation on the basis of AICPI number  (1982=100), so that DA can be paid to the State Government  employees at least twice in a year till the date of giving effect  to the recommendation of 6th Pay Commission set up by the  Government of West Bengal for its employees. The respondent  no. 1 is directed to implement the norms/principles evolved as  per direction of the Tribunal within a period of six months  from the date of the order. The respondent No. 1 is further  directed to make payment of arrears of DA on the basic pay  to the State Government employees by taking into account  level of inflation on the basis of AICPI number (1982=100) by  following the norms/principles evolved as per direction of the  Tribunal within a period of one year from the date of this  order or before giving effect to the recommendation of 6th Pay  Commission set up by the Government of West Bengal,  whichever is earlier. The respondent No.1 is at liberty to  decide the mode and manner of payment of arrears of DA to  the State Government employees within the period of time  fixed by us. The respondent No. 1 is also directed not to give  any effect to the office orders/memorandums issued for  payment of DA to the State Government employees posted in  New Delhi and Chennai at a rate payable to the employees of 

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the Central Government, but the respondent No.1 will not  make any recovery for excess payment of salary to those  State Government employees. The respondent No.1 is at  liberty to give incentive to the State Government employees  working in New Delhi and Chennai by payment of special  allowance or any other allowances as the State Government  may deem fit and proper. With the above directions, the  original application stands disposed of.” 

8. What we find from the judgment dated 31.08.2018 passed by  Co-ordinate Bench in WPST No. 45 of 2017 and having withstood  the test in the review application being RVW, it has been held by  the Co-ordinate Bench in unambiguous term that the claim of the  employees serving under the Government of West Bengal for  Dearness Allowance is based on legally enforceable right on all the  employees serving under the Government of West Bengal up to  such extent of the recommendation of the 5th Pay Commission  which has been accepted by the Government of West Bengal by  virtue of provisions of sub-rule (1) Rule 12 of ROPA Rules, 2009  read with paragraph 10 of the clarificatory memorandum being 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 a revised pay structure under the ROPA Rules, 2009  issued by the Government of West Bengal, Finance Department,  Audit Branch. As against such finding/direction of the Co-ordinate  Bench, no appeal has been preferred by the petitioners before any  higher forum. Therefore, this finding/direction of the Division  Bench has attained finality.

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9. Now, the seminal question involved in the instant matter is  whether the judgment and the order passed by the learned  Tribunal to adjudicate the aforesaid two issues in favour of the  employees is sustainable ? 

10. Before we consider the question as posed, the background  facts, shorn of details, may be delineated as under :- 

The State of West Bengal set up 5th Pay Commission in the year  2008 to examine the structure of emoluments of all employees  under the control of the Government of West Bengal and to make  recommendation on certain issues including principles for grant of  Dearness Allowance with reference to the cost of living index. The  5th Pay Commission made various recommendations including  revision of pay and allowances including Dearness Allowances to  be paid to the employees of different departments of the  Government and submitted its report to the State Government. The  State Government accepted the recommendation of the Pay  Commission by making Rules viz., ROPA Rules, 2009. These Rules  provide for giving allowances viz., Dearness Allowances, medical  allowance, house rent allowance and non-practising allowances.  The grievances of the respondent Nos. 1 to 4 who were the  applicants of the original application are against the non-grant of  Dearness Allowance to the employees in terms of the  recommendation of the Pay Commission as recommended in  Chapter- X of the report. Owing to unabated pressure of inflation,  the real value of salary fixed periodically by the Pay Commission  gets continuously eroded with the passage of time. The cost of  price living index is the basic factor for consideration of the Pay  Commission for determination of Pay and Dearness Allowances to  be paid to the employees. The State Government followed the same  principles for computation and payment of D.A on basic pay fixed 

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under 5th Pay Commission as has been done by the Central  Government under 6th Central Pay Commission. The Central  Government has revised D.A twice in a year on 1st January and 1st July and paid them within third month on which the DA is  payable, whereas the State Government initially paid D.A twice in a  year but discontinued to pay twice in a year after the year 2010  and has delayed payments of D.A to its employees in most  arbitrary manner. Compared to the D.A.s paid to the Central  Government Employees, the State Government Employees are  lagging far behind. By setting out comparative chart of D.A paid to  the Central Government Employees and D.A paid to the State  Government Employees the applicants/ respondent Nos. 1 to 4  have depicted the difference of D.A in the Tribunal application.  

11. The State Government Employees who are serving at Banga  Bhawan at New Delhi and Youth Hostel in Chennai are getting D.A at the same rate as admissible to Central Government Employees.  Besides, the employees of West Bengal State Electricity  Development Corporation are also getting D.A at the same rate as  that of Central Government Employees. This action on the part of  the Government of West Bengal is grossly discriminatory.  

12. Under the aforesaid facts as briefly stated, the respondent nos.  1 to 4/ the applicants sought for the reliefs as quoted above.  

13. Appearing for the petitioners Mr. S.N. Mookherjee, learned  Advocate General by citing a decision in the case of India General  Navigation & Railway Company Limited, Calcutta and  Another-Vs- Workmen and Another reported in AIR 1960 SC  1286 submits that the principle as to payment of Dearness  Allowance depends upon the place of posting of an employee where  his family members (i.e., wife and children) reside. Placing reliance 

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upon a decision in the case of Workmen Employed by Mesrs  Indian Oxygen Limited –Vs- Mesrs Indian Oxygen Limited  reported in (1985) 3 SCC 177 learned Advocate General  emphasises that Dearness Allowance for workmen of various units  of an All-India concern should vary according to All-India 

Consumer Price Index for those respective units and cannot be  based on All India Average Consumer Price Index with uniformity.  Learned Advocate General points out that Industry-cum-Region  Principle is applicable for adjudication of payment of disbursement  of Dearness Allowance. Learned Advocate General emphatically  submits that payment of Dearness Allowance is deeply interlinked  to the financial ability of the employer and if the resources of the  employer do not permit the employer to pay Dearness Allowance to  neutralise the high cost of living of an employee the employer is  within its lawful domain to decline payment or disbursement of  Dearness Allowance. In support of his submission learned  Advocate General has cited a decision in the case of Tamil Nadu  Electricity Board represented by its Chairman –Vs- Tneb - Thozhilalar Aykkiya Sangam by its General Secretary  reported in (2019) 15 SCC 235. To sum up his submission  learned Advocate General argues that payment of Dearness  Allowance to the employees of the Government is within the  discriminatory domain of the Government dependent on the  factors like its financial resources, place of posting of an employee  etc. and inability on the part of the Government to pay or disburse  Dearness Allowance cannot be termed as denial of the accrued  right of an employee.  

14. Mr. Bikash Ranjan Bhattacharya, learned Senior Counsel  appearing for the respondent Nos. 1 to 4 submits that most of the  State Governments have adopted the method of payment of 

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Dearness Allowance to its employees at the same rate as  admissible to the Central Government employees which is assessed  as per the All India Average Consumer Price Index prepared by  Labour Bureau, Shimla. Mr. Bhattacharya submits that the  methodology or principle behind payment of Dearness Allowance is  to mitigate the loss of value of basic salary of an employee on  inflation in the market economy. Mr. Bhattacharya by referring to  an unreported judgment of a Co-ordinate Division Bench of this  High Court rendered in MAT 501 of 2020 with MAT 502 of 2020  (West Bengal State Electricity Transmission Company Limited  and Others -Vs- West Bengal State Electricity Board Engineers  Association and Others) submits that the West Bengal State  Electricity Transmission Company Limited, a State Government  undertaking, has been directed to pay the Dearness Allowance to  its employees at the same rate as admissible to Central  Government Employees. Mr. Bhattacharya argues that the  submission of the State that due to financial inability it is not in  a position to pay Dearness Allowance to its employees is not  acceptable as this Government disburses Dearness Allowances at  the rate of Central Government to the members of All India  Administrative Service and All India Police Service who are serving  under the direct control of the State Government. Mr.  Bhattacharya further submits that those employees who are  employed at Delhi and Chennai, but governed under the statutory  Rules of the State Government are getting Dearness Allowances at  the rate as that of the Central Government and this action on the  part of the Government offends the golden Rule of equality  enshrined in Article 14 of the Constitution. Lastly Mr.  Bhattacharya by drawing our attention to the definition of “existing  emoluments” under Rule 3 of the West Bengal ROPA Rules, 2009  emphasises that after the advent of ROPA Rules, 2009 the claim of 

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Dearness Allowance of an employee has fructified as the statutory  right and it is enforceable by the writ Court or Administrative  Tribunal. To counter the submission of the learned Advocate  General Mr. Bhattacharya submits that the decisions cited by  learned Advocate General relate to workmen governed under the  Labour Laws, especially the Industrial Disputes Act and the  conditions of service of them are contractual whereas the service  conditions of Government Employees are governed by the statutory  Rules emanating from Article 309 of the Constitution. On this  score, Mr. Bhattacharya argues that the judgment rendered by the  learned Tribunal is quite justified and it does not warrant any  interference by this Court.  

15. Mr. Kallol Basu, learned Counsel appearing for the added  respondents adopts the submission as advanced by Mr.  Bhattacharya. 

16. Before we advert to and consider the submissions advanced by  the learned Counsels appearing for the parties we feel it necessary  to refer to the relevant portion of the report of the 5th Pay  Commission and the relevant provision of the ROPA Rules, 2009.  

17.The 5th Pay Commission under Chapter- 10 relating to  allowances has, amongst others, reported and recommended as  under :- 

“10.2. Now we first deal with Dearness Allowance. Due to the  unabated pressure of inflation in the economy the real value  of salary fixed periodically by Pay Commission gets  continuously eroded with the passage of time. Thus arises  the need for payment of Dearness Allowance so as to protect  this loss.

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10.3 The State Government since 01.04.1979 has been  following the same principles followed by the Government of  India in the matter of calculation of the quantum of each  instalment of Dearness Allowance. But almost invariably  there is a time lag in actual payment and when the same is  paid, the same does not include any arrears. Right now only  one such instalment has remained due which the Government  of India sanctioned on 01.07.2008. The last instalment  which the State Government has sanctioned with effect from  01.03.2009 was sanctioned by the Government of India with  effect from 01.01.2008.  

10.4. A major grievance of most of the associations of  employees has been non-payment of the D.A instalments in  time (as per of Government of India’s announced policy, this  is payable twice a year viz., w.e.f. 1st January and 1st July  each year). They are also aggrieved because of non-payment  of arrears.  

10.6. It is evident from the above that the State Government’s  sanction of instalments does not follow any definite pattern.  It is also clear that there are delays in payment of various  instalments of D.A and there cannot be any differences of  opinion regarding the need to avoid the delays. We are of the  opinion that with some extra effort the State Government  should be in a position to clear the backlog of the lone  instalment which was sanctioned by the Government of India  w.e.f July 1, 2008, and then fall in line with the Central  Government pattern of sanctioning two instalments of D.A  each year. We recommend this course of action. If it is done,  it will mitigate a long standing grievance of almost all  employees within our terms.”

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18. The aforesaid recommendation of the 5th Pay Commission has  been accepted by the Government by promulgating the ROPA  Rules, 2009. As per Rule 3 (c) “existing emoluments” mean  aggregate of (I) existing basic pay, (II) Dearness Pay appropriate to  the basic pay and (III) Dearness Allowance appropriate to the basic  pay plus dearness pay at index average 536(1982=100)

19. As quoted above, the Co-ordinate Division Bench in the  judgment rendered in WPST No. 45 of 2017 has held that 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  upto 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. This observation, as stated above, has attained finality.  Therefore, we have no hesitation in our mind to hold that the State  Government employees under the ROPA Rules, 2009 has acquired  legally enforceable right to get Dearness Allowance at the rate to be  calculated on the basis of All India Consumer Price Index as  embedded in Rule 3 (c) of the ROPA Rules, 2009.  

20. In view of the decision of a Co-ordinate Division Bench in MAT  501 of 2020 with MAT 502 of 2020 (West Bengal State  Electricity Transmission Company Limited and Others -Vs-

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West Bengal State Electricity Board Engineers Association  and Others) the Employees under West Bengal State Electricity  Transmission Company Limited are entitled to Dearness  Allowances at the rate of Central Government.  

21. The learned Tribunal in the impugned judgment has struck  down the relevant office orders/memorandums under which D.A  was paid to the State Government Employees working at Banga  Bhawan in New Delhi and at Youth Hostel in Chennai at the rate  payable to the employees of the Central Government holding the  orders/memorandums discriminatory offending the doctrine of  equality under Article 14 of the Constitution. Bearing in mind the  principle enunciated by the Hon’ble Apex Court in the decision in  the case of D.S. Nakara –Vs- Union of India reported in AIR 1983 SC 130 we hold that the classification of the State  Government Employees working at West Bengal and State  Government Employees working at Delhi and Chennai governed by  the same statutory Rules is discriminatory sans intelligible  differntia and offends the golden doctrine of equality under Article  14 of the Constitution.  

22. Since the claim of the State Government Employees of  Dearness Allowance at the rate to be calculated on the basis of All  India Consumer Price Index has fructified as a legally enforceable  statutory right the decisions reported in AIR 1960 SC 1286 and  (1985) 3 SCC 177 (supra) cited by learned Advocate General  pertaining to payment of Dearness Allowance to workmen whose  conditions of services are contractual in nature under private  individuals/organisations are not applicable to the facts of the case  on hand. Similarly, in view of the factual and legal scenario as  above the decision in the case of Tamil Nadu Electricity Board  represented by its Chairman –Vs- Tneb - Thozhilalar Aykkiya 

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Sangam by its General Secretary reported in (2019) 15 SCC  235 is also not applicable. 

23. As the pleadings indicate, it stands undisputed that due to  erosion of value of the salary of Government Employees and non payment of Dearness Allowance since long to neutralize the  erosion, sustaining livelihood of Government Employees has been  affected to a great extent as revealed in the report of the 5th Pay  Commission. As held above, to get Dearness Allowances at the rate  to be calculated in terms of All India Consumer Price Index average  536 (1982=100) is now the legally enforceable right of the State  Government Employees. What we feel, apart from acquiring the  enforceable legal right to get Dearness Allowance using the  methodology of All India Consumer Price Index, such right of the  employees to sustain their livelihood with human dignity has been  fructified or elevated as fundamental right as enshrined in Article  21 of the Constitution. Such right available to Government  Employees who are the main workforce behind the functioning of a  Government in right direction cannot be denied by the State. As  observed by the Pay Commission, we are of the same view that to  pay respect to the statutory rights of the Government Employees to  get D.A Allowances at the rate as above, the Government must  generate all its resources. We feel that denial or deprivation of the  legitimate claim of Dearness Allowance of the employees to sustain  their livelihood in a dignified manner may have demoralizing effect  upon them which may in turn adversely affect the smooth  functioning of the Government. In such backdrop, the stand taken  by the State that due to financial inability it is not in a position to  pay Dearness Allowance to its Employees at the rate to be  calculated using the methodology of uniform All India Consumer  Price Index average 536 (1982=100) is not acceptable. While the 

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claim of the employees to Dearness Allowance is backed by  statutory and fundamental rights and the Court finds that the  State turns deaf ears to such rights, this Court in exercise of its  extraordinary judicial power may direct the State to implement  such rights of the employees. 

24. In view of the factual and legal scenario as discussed above, we  find that the learned Tribunal by the judgment impugned  adjudicated the two issues formulated by the Division Bench in  justified manner. There is no infirmity in the judgment which  warrants any interference by this Court. 

25.Therefore, the question as raised is answered in the affirmative. 

26.Accordingly, the writ petition filed by the State of West Bengal is  dismissed on contest. No order as to costs. 

27.The petitioners are directed to release the Dearness Allowance  and Arrear Dearness Allowance to its employees at the rate to be  calculated on the basis of All India Consumer Price Index average  536(1982=100) commensurate with their pay as per the ROPA  Rules, 2009 as directed by the Tribunal within three months from  date. 

28.Urgent certified copies of this judgment, if applied for, be given  to the parties upon compliance with all requisite formalities. 

( Rabindranath Samanta, J.)

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Harish Tandon, J. 

1. I had an opportunity to peruse the judgment authored by my brother  and I concur with the ultimate decisions arrived at but I thought that  I should pen my perception on the issues involved in the instant writ  petition concerning the Dearness Allowance attributable to the  Government employees within the State.  

2. The concept of Dearness Allowance and its horizon is required to be  recapitulated which in my opinion, is a unique feature to combat the  disparity in the living conditions and mitigating the circumstances  faced by the Government employees due to cost inflation. The  different countries in the world have tackled the inflation by revision  of wages instead of granting the Dearness Allowance. The Dearness  Allowance in our country is a relic of 1st World War to tackle the rise  of costs impacted upon the living standards by not using the same  terminology but in the form of an ad-hoc payment not linked with the  inflation of the cost of living. During this 2nd World War, the Dearness  Allowance (for short, “DA”) was introduced in the form of a grain  compensation allowances to recompense the employee of the  hardships suffered for the rise in the price of the foodgrains and after  the independence, the then Central Government constituted the 1st Pay Commission in 1947 to examine the base structure and ascertain  the actual hardship which the Central Government employees  suffered because of the steep rise in the cost of living, commonly  known as the inflation. The Committee was also set up on fair wages  to evaluate the situation and recommend the suggestive measures  which was constituted in the year 1949. In the same line the 2nd Pay  Commission was constituted in the year 1959 and, thereafter, a one  man independent committee was constituted to enquire the question  of Dearness Allowance that may be payable to the Government 

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employees and the report was submitted by such one man committee  in the month of July, 1966; the same was followed by an another  commission i.e., the Dearness Allowance Commission to examine the  principles governing the grant of DA to the Central Government  employees in future and also make recommendations pertaining to  the modalities and the acceptable structure or the formula to  calculate the DA in future. Since thereafter, the aforesaid modalities  have been adopted by constituting Pay Commission from time to time  and the reports suggesting the modalities on well-structured  parameter was being accepted either in entirety or with certain  modifications. Ironically and historically, the observations of the  various commissions and the committees the DA was made applicable  to the employees who are at the subsistence level or just above it in  order to enable them to sustain the cost of living. Initially, the  commission and committees were taking into various factors but  concentrating on the rise in the essential commodities which by  passage of time and the progression in the society the concept of DA  changes to engulf various factors imbibing wide range of the  commodities to make the life meaningful and/or maintain the living  standard as far as practicable depending upon the compelling  limitations of general interests. What was the luxury at one point of  time prevalent in the Indian society have become a necessity in future  and what was the necessity has become a basic need in the changing  society and, therefore, the concept of the DA has become more robust  and all the Governments are obligated to compensate the loss in the  cost of living and ensure the quality life not to be luxurious or  extravagant but on mere sustenance. Initially, the DA was intended to  be temporary arrangements or a transitional protection but because  of the stark reality of the situation and the continuous rising of  inflation impacting on the potential and efficacies of the employees in 

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meeting various vicissitudes of the life and, therefore, cannot be  perceived to be static.  

3. In federal system, the Union of State and its independence as  envisioned in the Constitution, the State Government from time to  time, in tune with the Central Government, constituted the Pay  Commission to evaluate the inflation in the cost of living to the State  Government employees by adopting a different formula which  sometimes raises the disparity. The 6th Central Pay Commission  recommended the Dearness Allowances to be calculated at the index  average 536 (1982=100) since the State Governments were setting up  their own Pay Commission and the State of West Bengal constituted  the 5th State Pay Commission to ascertain the pay structure, scale of  pay, the revised scale of pay and various allowances including the  Dearness Allowances which may be extended to its employees. The  report of the 5th State Pay Commission would reveal that the State  Government since 1st April, 1979 has been following the principles  followed by the Government of India in the matter of the calculation of  the quantum of each instalment of the Dearness Allowances due to  the inhibited pressure of inflation in the economy and the real value  of salary fixed periodically by the pay commissions which gets  continuously eroded by passage of time. The Commission thought  that it is a high time where the payment of Dearness Allowances is to  be extended and paid to the Government employees to protect the  loss. The said commission further found that there has been a  disparity in the time lag in the actual payment of the Dearness  Allowances as sometimes the arrears are not included or not paid in  uniform manner and recommended the State Government to clear all  the backlogs of the lone instalment in tune with the sanctioned by the  Government of India with effect from July 1, 2008 and to fall in line  with the Central Government pattern of sanctioning two instalments  of DA each year.

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4. On the basis of the said recommendation, the State Government  promulgated West Bengal Services (Revision of Pay & Allowance)  Rules, 2009 under proviso to Article 309 of the Constitution of India and, therefore, brings the same in reality in the form of the statutory  document. The said Rule would evince that it was made effective from 1stDay of January, 2006 expanding its horizon to all persons  appointed to Civil Services and post under the rule making control of  the State Government except certain categories of services indicated  in Rule 2 thereof. The said Rule being somewhat exhaustive  encompassing the change in the grade pay, revised pay structure,  basic pay in revised pay structure and other allied benefits, apart  from the allowances including the DA. Rule 3 (C) of the said rules  defining the existing emoluments includes the DA appropriate to the  basic pay plus the dearness pay at index average 536 (1982=100). While dealing with the fixation of initial pay and revised pay structure  under Rule 7, the proviso to Clause (b) thereof gives manifest  intention as to the index average of 536 (1982=100). However, Rule  12 which starts with the non-obstante clause postulates that the  arrears of the DA between the period from 1st January, 2006 to 31st March, 2008 shall not be paid to a Government employee but the  Government employees shall be entitled to the arrears on and from 1st April, 2008 to 31st March, 2009 in three consecutive yearly  instalments in cash for the year 2009-10. The aforesaid rule was  published in the Calcutta Gazette: Extraordinary on February 23,  2009. Simultaneously, the memorandum no. 1691-F was issued by  the Finance Department, Government of West Bengal through its  principal secretary as clarificatory memorandum to the said rule  concerning the allied matters dealt with by the 5th Pay Commission.  Paragraph 2 thereof exposes the intention of the Government to  accept the recommendation of the said Commission concerning the  running pay bands and the grade pay leading to its scale of pay 

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without any modifications; in other words, the same was accepted  without any modifications and in toto. Paragraph 10 thereof which is  of a seminal importance in the instant writ petition relates to a DA  and exposes the manifest intention of the Government in this regard.  Under the said paragraph, the DA was admissible to all Government  employees which they are entitled from time to time, since 1st 

January, 2006 to be relatable to the pay in the revised pay structure  and on the basis of another Government order issued by the Finance  Department vide memo no. 1692-F dated 23rdFebruary, 2009. Under  the memo no. 1692-F dated 23rd February, 2009 the Government  decided to pay the DA with effect from 1st April, 2008 at the rate  indicated therein. However, the clarification was also given in  Paragraph 5 providing the meaning of the term “basic pay” for the  purpose of the DA to mean the pay drawn in the revised pay band  including the pay band and non-practicing allowances (NPA), were  admissible but shall not include any other type of pay. This anomaly  raises a concern with the several State Government Employees’  Organisations and the representations were made to the State  Government highlighting the disparity not only on the rate of the  dearness allowances but its timely payments.  

5. Ultimately, the tribunal application under Section 19 of the  Administrative Tribunal Act, 1985 being OA no. 1154 of 2016 was  filed by the Respondent no. 1 for the 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 

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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.” 

6. The said tribunal application was dismissed upon returning the  findings that the payment of dearness allowances falls within the  absolute prerogative of the discretionary domain of the State  Government and, therefore, no right has accrued into the employee to  claim DA. It was further observed that despite the partial acceptance  of the recommendation of the 5th Pay Commission, it does not confer  any right on the State employees to bring an action for enforcement  thereof. Lastly it was observed that the DA paid to the employees of  the State Government posted at Banga Bhavan, New Delhi and Youth  Hostel at Chennai including the employees of the West Bengal State 

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Electricity Development Corporation is not the discriminatory one. It  is pertinent to record that the plea was also taken by the Respondent  no. 1 in the said tribunal application that the moment the DA is paid  to a Government employee at par with the rate of the DA admissible to  the Central Government employees, to the State Government  Employees posted at Banga Bhavan, New Delhi and Youth Hostel at  Chennai and the West Bengal State Electricity Development  Corporation, the same should be also extended to these employees of  the State Government posted within the State of West Bengal. 

7. The said order dated Feb 16, 2017 was assailed before the Division  Bench in WPST 45 of 2017 wherein the three points were formulated.  Firstly, whether the claim of the State Government employees for  Dearness Allowances is a legally enforceable right in terms of ROPA  Rules, 2009 read with the other Government orders issued  correspondingly; secondly, whether the claim of the employee to get  the Dearness Allowance at the same rate that of the employees of the  Central Government; thirdly, whether the rate of dearness allowance  equivalent to the rate of Central Government employee paid to the  State Government employees posted at Banga Bhavan, New Delhi and  Youth Hostel at Chennai is discriminatory.  

8. The Division Bench answered the first point in favour of the  respondent no. 1. In other words, the Division Bench held that the  claim of the employee serving under the State of West Bengal for  Dearness Allowance is based on a legally enforceable right to the  extent of the recommendation of the 5th Pay Commission accepted by  the Government of West Bengal by promulgating the ROPA Rules,  2009 and the clarificatory memorandum issued simultaneously.  However, the other two questions were not answered and the matter  was remitted to the Tribunal to decide the same. The State  Government filed an application for review against the said order  which was ultimately dismissed. 

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9. Thus, the point as to the legally enforceable right having created upon  the State Government employees over the claim of DA attained finality  and in absence of any further challenge to the higher forum, such  point cannot be reagitated and/or reopened in the instant proceeding. 

10. However, the Tribunal on limited remand answered the aforesaid two  points in the following: 

“38.The function of the pleadings is only to state the  material facts and it is for the Court or Tribunal to determine  the legal result of those facts and to mould the relief in  accordance with that result, as decided by the Federal Court  in “Messers Moolji jaitha and Co. v. Khandesh Spinning and  Wearing Mills Co. Ltd.” Reported in AIR 1950 FC 83: 1950  SCC online FC3. Accordingly, we would like to give the  following directions on the basis of the findings made by us.  The respondent No.1, Chief Secretary to the Government of  West Bengal is directed to evolve norms/principles within a  period of three months from the date of this order for release  of DA on the basic pay of the State Government employees  fixed in terms of ROPA Rules, 2009 by taking into  consideration inflation on the basis of AICPI number  (1982=100), so that DA can be paid to the State Government  employees at least twice in a year till the date of giving effect  to the recommendation of 6th Pay Commission set up by the  Government of West Bengal for its employees. The  respondent No. 1 is directed to implement the  norms/principles evolved as per direction of the Tribunal  within a period of six months from the date of the order. The  respondent no.1 is further direct6ed to make payment of  arrears of DA on the basic pay to the State Government 

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employees by taking into account level of inflation on the  basis of AICPI number (1982=100) by following the  norms/principles evolved as per direction of the Tribunal  within a period of one year from the date of this order or  before giving effect to the recommendation of 6th Pay  Commission set up by the Government of West Bengal,  whichever is earlier. The respondent No.1 is at liberty to  decide the mode and manner of payment of arrears of DA to  the State Government employees within the period of time  fixed by us. The respondent No.1 is also directed not to give  any effect to the office orders/memorandums issued for  payment of DA to the State Government employees posted in  New Delhi and Chennai at a rate payable to the employees of  the Central Government but the respondent No.1 will not  make any recovery for excess payment of salary to those  State Government employees. The respondent No.1 is at  liberty to give incentive to the State Government employees  working in New Delhi and Chennai by payment of special  allowance or any other allowances as the State Government  may deem fit and proper. With the above directions, the  original application stands disposed of.” 

11.To summarise the findings made by the Tribunal in the impugned  judgment, it is discerned that the direction was passed upon the  Chief Secretary to the Government of West Bengal to evolve  norms/principles within a specified time for release of DA on the  basic pay of the State Government employees fixed under ROPA  Rules, 2009 and such DA shall be paid at least twice in a year till the  acceptance and/or giving effect to the recommendation of the 6th Pay  Commission set up by the Government of West Bengal. The Said Chief  Secretary was further directed to implement the norms/principles in 

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terms of the order of the Tribunal within Six months from the date of  the said order and to make the payments of the arrears DA within one  year from the date of order or before giving effect to the  recommendation of the 6th Pay Commission set up by the State  Government and directed to revise the DA of the employees posted  outside the West Bengal in commensurate with the rate of the DA  payable to the employees posted within the State of West Bengal and  in the event any excess payment is made, the same should not be  realised/recovered from the said employees. However, the liberty was  also granted to the Chief Secretary to take a decision upon extending  the incentives to such employees by way of special allowances or any  other allowances as the Government may deem fit and proper.  

12. Such being the factual matrix discerned from the record, the learned  Advocate General submits that the concept of ascertaining the rate of  the DA being variable and depends upon the various factors including  the consumer price index at the relevant place of his posting cannot 

be brought within the straight jacket formula. In other words, it is  submitted that the DA depends upon the place of posting or where  the employee is posted in a particular place the inflation as to the cost  of living at such place and therefore, the uniform standard of  ascertaining the cost of inflation on an all India basis may result into  a chaos and relied upon a judgment of the Supreme Court in the case  of Workmen Employed By M/s Indian Oxygen Ltd. Vs. M/s. Indian  Oxygen Ltd., reported in (1985) 3SCC 177. According to Mr.  Advocate General, the DA is linked to the cost of living index of a  particular centre or place having a local flavour and therefore, in a  major city the same would be different than in any other remote  places. According to Mr. Advocate General since the DA is linked to  the cost of living index available at the centre and it is not imperative  on the part of the State Government to adopt the rate of the Central  Government determined on all India basis. Mr. Advocate General

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further relies upon a judgment of the Supreme Court in case of  Indian General Navigation and Railway Co., Ltd. Calcutta and  Anr. Vs. Workmen and Anr., Reported in AIR 1960 SC 1286 in  support of his contention that the principle behind the ascertainment  of the DA is linked with the cost of living index at the place of posting  or where their families are living and/or residing and therefore, the  rate of DA ascertained by the Central Government may not be the  said safe factor. Mr. Advocate General is very much vocal in his 

submission that the DA cannot be claimed as a matter of right as it  largely depends upon the ability and the financial position of the State  and for such reason every State follows their own rate of DA payable  to its employees and may in some cases adopt the rate of the DA of  the Central Government but there is no obligation on the part of the  State Government to accept the said rate and placed reliance upon a  judgment of the Supreme Court in Tamil Nadu Electricity Board  vs. TNEB- Thozhilalar Aykkiya Sangam, reported in (2019) 15  SCC 235. Mr. Advocate General further submits that since the rate of  DA is variable in nature depending largely upon the place of posting,  there is no incongruity in the decision of the State Government in  giving the DA at the rate equivalent to the DA of the Central  Government employees to its employees posted at New Delhi, Chennai and other organisations. As per the learned Advocate General, such  policy decision of the State Government is non-discriminatory and  based upon rationality, reasonability and there is an intelligible  differentia amongst the same class. 

13.Mr. Bikash Ranjan Bhattacharya, learned Senior Advocate appearing  for the Respondent no. 1 submits that the moment the Government  accept the recommendation of the 5th Pay Commission by  promulgating the Rule in exercise of the power conferred under Article  309 of the Constitution of India, it cannot retract therefrom and deny  the legitimate claim emanates from the said statutory rules. It is 

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further submitted that the earlier Division Bench has held that the  said respondent has a legally enforceable right to claim the DA under  ROPA Rules, 2009 and therefore, the State Government cannot take a  contrary stand thereto. According to Mr. Bhattacharya, if the  modalities and the basic factors emanates from the said ROPA Rules,  2009 is evident and patent and require to be adhered to, the  contention of the learned Advocate General that the dearness  allowance is variable and largely dependent upon the place of the  posting is untenable. It is further submitted that mere a plea relating  to inability or incapability to pay dearness allowance determined  under the structured formula is an unacceptable defence and in fact,  the same argument was advanced in case of West Bengal State  Electricity Transmission Company Ltd. &Ors. vs. West Bengal  State Electricity Board Engineers’ Association &Ors. (MAT 109  of 2020) decided on 11.3.2020, but does not found favour. The said  judgment was assailed before the Supreme Court in the Special Leave  to Appeal (C) No. 2947 of 2022 which was dismissed on 4th March,  2022. Thus, it is contended that the moment the Government  accepted the recommendation of the pay commission by framing the  Rules under Article 309 of the Constitution of India, it cannot take a  rebound and deny the payment of the DA under any pretext including  the financial crunch.  

14.Mr. Kallol Basu, learned Advocate appearing for the aided  respondents adopts and reiterates the stand of Mr. Bhattacharya by  submitting that the State Government cannot take a plea of fixing  rate of DA by taking the cost price index at a particular place in view  of the definition of the existing emoluments under ROPA Rules, 2009.  He, thus, submits that there is no illegality or infirmity in the  impugned order and therefore, the writ petition filed by the State  needs to be dismissed. 

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15.The facts emerged from the pleadings of the parties and the  arguments so advanced before us have squeezed the zone of  consideration in the limited sphere. Initially, the plea was taken by  the State that DA is not legally enforceable right and therefore, the  State Government employees are not entitled to any relief consequent  thereupon and the writ petition was dismissed on February 16, 2017  by the Tribunal but the Division Bench while considering the writ  petition filed against the said order of the Tribunal held in  unequivocal term that the same is the legally enforceable right but  declined to interfere with other two points, namely, (i) whether the  claim of the employees serving under the Government of West Bengal  for dearness allowance at a rate equivalent to 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  Government with their counterparts serving at Banga Bhavan in New  Delhi and Youth Hostel in Chennai, are require to be decided upon  disclosure of the further materials. An application for review was filed  against the order of the Division Bench passed in WPST No. 45 of  2017 which was later on dismissed. There was no further challenge to  the said order of the Division Bench and therefore, it can be  reasonably inferred that the said order attained finality. As a logical  corollary, the main thrust on a plea of legally enforceable right  relating to the claim of DA has been set at rest and it cannot be  reopened in the instant proceeding. After the remand on the  aforesaid two points, the Tribunal has answered the same and  rejected the contention that the statutory rules or the administrative  directions mandates the State Government employees to get DA at the  rate payable to its employees by the Central Government. However,  the Tribunal held that the claim of DA being legally enforceable right,  the State Government employees are entitled to get DA on the basic  pay at the rate to be calculated on the basis of all-India Consumer 

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Price Index (AICPI) number published from time to time taking the  base year (1982=100) and therefore, it is the bounden duty of the  State Government to evolve norms/principles on payment of DA to its  employees by calculating the same on the basis of AICPI on the basic  pay fixed in terms of the ROPA Rules, 2009 till the date of giving the  effect to the recommendation of 6th Pay Commission set up by the  State of West Bengal. It was further held that the State Government  is bound to pay the arrears of DA upon fixation of the rate in terms of  the aforesaid directions either in cash or giving direction for  depositing the same in General Provident Fund (for short, “GPF”) with  suitable restrictions in withdrawal of the same within the specified  time. So far as the point of discrimination is concerned, the Tribunal  held that there cannot be the classification within the class and all  the State Government employees constitute a homogeneous class and  therefore, the payment of DA at different rate (in this case at the rate  declared by the Central Government) is discriminatory and is violative  of Article 14 of the Constitution of India. Such being the position as  stood as on this date, there is no hesitation to hold that it is not  obligatory or imperative on the part of the State Government to pay  the DA to its employee at the rate of DA paid to the Central  Government employee. The question is still begging an answer what  would be the modalities and/or norms to be adopted by the State  Government in ascertaining the rate of DA to its employee? 

16.According to the learned Advocate General, the adjudication and/or  ascertainment of DA cannot be brought within the straight-jacket  formula as it depends upon the place of posting and therefore, it is  variable in nature with an avowed object to neutralise the high cost of  living because of the inflation at a place where he is posted or his  family is residing and therefore, it is within the exclusive domain of  the State Government to declare the DA at the rate prevalent at the  respective locality and not on the standard formula. The judgment of 

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India General Navigation and Railway Co. Ltd., Calcutta & Anr.  (supra) appears to have been misunderstood in this regard. In the  said report, the employer was a steamer company having its head  office at Calcutta and the dispute arose with its worker primarily on  two grounds, namely, (i) the dearness allowance for the steamer and  flat clerks and (ii) the working hours for ghat employees on  Saturdays. Initially, Bengal Chambers of Commerce was entrusted  the task of ascertaining the rate of DA to the staff posted at the head  office and at the Calcutta ghats and recommended that the steamer  clerks and flat should be paid the same rate of DA. The company  took a plea that there is a fallacy in the said recommendation to grant  the rate of DA to those clerks at such rate in a uniformed manner but  must be allowed at the rate prevalent at the locality whether the  workman is posted. The Apex Court held that the concept of DA  largely depends upon the place of posting of the employee but did not  accept such contention on the special fact that those clerks were  entrusted to work on flats and steamers while plying on the river  cannot be said to have a definite place of posting and therefore, held  that the expression “place of posting” should mean that the employee should get DA where their families are residing which would be  considered to be a place of posting of such employees for all practical  purposes in these words:  

“5.So far as the principle is concerned there is no doubt that  dearness allowance depends upon the place of posting of an  employee. The difficulty, however, of applying this principle  in the case of these clerks is that they have no definite place  of posting; they are flat and steamer clerks and their main  duty is to work on flats and steamers while they are plying  on the river. In such a case the principle that dearness  allowance should be governed by the place of posting can 

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only mean that the employees should get dearness allowance  where their families (i.e. wife and children) are residing, for  that would be the place of posting of such employees for all  practical purposes. The Tribunal’s view therefore that these  clerks should be paid this rate of dearness allowance would  be justified on the presumption made by it that the families  of these clerks must necessarily be living in Calcutta when  they were on duty on a flat or steamer. There is, however, no  proof of this on the record and it cannot necessarily be  assumed that every such clerk must be keeping his family in  Greater Calcutta. As we have pointed out above, this rate of  dearness allowance is not meant to apply to those who reside  outside Greater Calcutta. Though therefore the Tribunal is  right in awarding this rate of dearness allowance to these  clerks, it went wrong in assuming that every one of these  clerks was residing in Greater Calcutta.” 

17.In Workmen Employed By M/s. Indian Oxygen Ltd. (supra) the  question which fell for consideration whether the variable DA payable  by the employer to its workmen should be revised by linking with the  Consumer Price Index for industrial workers at Kanpur as computed  by Labour Bureau, Simla and if the answer is affirmative than at what  rate. In the said case, the company has a Pan India Establishments  and there appears to be two rival unions at its industrial undertaking  at Kanpur. The company subsequently intended to uniformly grant  the DA to its employees posted at all its industrial establishments  throughout the country which raises a dissent amongst the  employees of the industrial undertaking at Kanpur. It was the stand  of the dissenting union that the workman employed in the company  and the major cities are getting a higher DA in comparison to Kanpur  Unit and therefore, the working out of the rate of DA taking into 

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account the consumer price index for Delhi prepared by the Labour  Bureau, Simla cannot be uniformly applied while revising the rate of  the DA for the workman employed in at Kanpur Unit. The Apex Court  held that the DA is directly relatable to the erosion of real wages for  the constant upward rise in the prices of the basic necessities and is  somewhat depended upon the inflationary inputs which resulted in  short fall in the purchasing power of the rupee. It is further held that  the DA linked with the price rise with an avowed object recompense  loss in real wages on account of the steep price rise. It was, thus,  held that the company has been misled to adopt the equitable  principle of introducing uniform rate of the DA linked with the all 

India average consumer price index prepared by the Labour Bureau,  Simla.  

18.The aforesaid two judgments relate to an industrial dispute and the  nature of the DA which is an integral part of the wages awarded to its  workman at the several units at different places. There was no  statutory rules governing the field of the DA and was largely depended  upon the policy decision of the company. The company which has a  Pan India Establishments intended to grant the DA on uniform rate  taking into account the inflation at a particular place which has not  been accepted to be the safe mode. Even the Apex Court has held  that all the workmen of the company are entitled to an uniform rate of  wages depending upon the nature of the duties and responsibilities  entrusted upon them but so far as the rate of DA is concerned it  varies from place to place and it would not be safe to ascertain the  rate of DA based upon cost price index at a particular place as it is  variable in nature. The aforesaid judgments in our opinion cannot  come in aid to the State Government as they are guided, controlled,  regulated and bound by the statutory provisions. It is one thing to  say that the policy decision is within the realm of the State and the  courts should seldom interfere therewith but it is completely different 

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when the statutory rules provides and regulates the functioning of the  State Government and therefore, any departure therefrom has to be  within the strict boundaries thereof. Previously, the Bengal Chambers  of Commerce was entrusted to ascertain the rate of inflation and  recommended the said rate of DA to the workmen of the industrial  undertaking within the region but the same has been done away with  and the onerous duties have been entrusted upon the Labour Bureau,  Simla. The concept of DA to neutralise the real wages of the workmen  at a particular industrial establishments may be variable but the  same analogy in our opinion may not be adopted in relation to  Government employees be it of the State or the Central. In recent  past, the Central Government has granted the DA to all its employees  uniformly irrespective of their place of posting. The concept of  variability in the DA has radically changed and the uniformity  appears to be the hallmark thereof. In fact, the State Government on  accepting the recommendation of the 5th Pay Commission framed  ROPA Rules, 2009 under Article 309 of the Constitution of India and  expressly excluded the categories of the persons from the purview  under Rule 2 thereof. The said rule manifestly exposes the lucid and  explicit intention of the Government in a doctrine of the  recommendation of the 5th Pay Commission and while defining  “existing emoluments” under Clause 3(C) thereof. The method of  ascertaining the DA has been clearly spelt out to be based upon at the  index average 536 (1982=100). It is logically inferred from the  aforesaid stand of the State that the rate of DA declared by the  Central Government though at the index average 536 (1982=100) cannot be extended to the State Government employee because of the  variability in the living cost price within the State but the State  Government cannot deny the applicability of the index average 536  (1982=100) under the said statutory rules. On the same day when  the said rule was published in the official gazette, the Memorandum 

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1690-F dated 23rd February, 2009 was issued by the Special  Secretary, Government of West Bengal indicating the conscious  decision of the Government relating to the release of the DA  admissible to the Government employees in the revised pay structure  but the DA between the period from 1st January, 2006 to 31st March,  2008 was decided not to be paid to such employees. Consequent  upon the said Memorandum, the clarification was made vide Memo  No. 1691-F dated 23rd February, 2009 wherein the DA which the  State Government employees were entitled from time to time since 1st January, 2006 was to be paid in terms of the said Memo No. 1692-F  dated 23rd February, 2009. The subsequent memorandum clarifying  the stand of the Government leaves no ambiguity that it is imperative  on the part of the State to pay the DA to its employees on and from 1st 

April, 2008 at the rate calculated on the basis of the index average  536 (1982=100). There cannot be any departure from the provisions  of the statutory rules nor the State Governments can act contrary  thereto taking shelter under the incapability and/or incapacity to  meet such requirement. In fact, the Tribunal also held that it would  not be proper to direct the State Government to pay the DA at the rate  of the Central Government but in view of the discussions made  hereinabove, there is no infirmity in the direction passed by the  Tribunal for evolving the norms/principles in fixing the DA on the  basis of the AICPI 536 (1982=100). It appears from the materials on  record that after accepting the recommendation of the 5th Pay  Commission and upon the promulgation of the ROPA Rules, 2009, the  DA was released twice in a year though in erratic manner. The  Central Government on the basis of the 6th Pay Commission have  decided to pay the DA twice in a year which was continued to be  accepted by the State Government and implemented for a brief period  but later on there has been a disparity. The moment the State  Government has adopted the manner in which the DA is to be 

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ascertained and paid to the employees twice in a year, in absence of  any valid reasons or compelling circumstances, the abrupt disruption  cannot be countenanced and therefore, we do not find any fault in the  order of the Tribunal in this regard.  

19.So far as the second point is concerned the tribunal has found all the  State Government employees irrespective of their place of posting are  to be treated uniformly and there cannot be any discrimination in  granting the DA at different rates to the State Government employees  posted at Delhi or Chennai. The Division Bench in an earlier round of  litigation have held that the claim of DA is a legally enforceable right.  The moment it is declared that the DA is a legal right the payment in  uniform rate would avoid any kind of discrimination. As indicated  above, there has been a paradigm shift between the period prior to  2009 and after as the Bengal Chambers of Commerce who was  initially entrusted to deal with such situation was done away with  and an uniform base index of 536 (1982=100) was adopted and  implemented. Under the ROPA Rules, 2009 the rate of DA to the  State Government employees is determined on the basis of AICPI and  applicable to all the State Government employees and therefore, the  moment they constitute a homogeneous class and in absence of any  special or compelling factors differentiating them or in absence of any  intelligible differentia, the class differentiation offends Article 14 of the  Constitution of India. There cannot be any categorisation of the State  Government employees on the basis of their posting at different  locations as it would amount to a classification within the  homogeneous class. We are not unmindful of the proposition of law  that the classification within the class can be accepted provided, it is  based upon the rationale and there is an intelligible differentia  distinguishing one group of person from other. There must be a  rational and reasonable nexus with the avowed object sought to be  achieved by such classification. The moment the AICPI is the base 

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factor to ascertain the DA it imbibed within itself all such  eventualities undertaken by the Labour Bureau, Simla and therefore,  the moment the rate of DA is ascertained based upon such factor, the  discrimination in payment of different rates of DA to the employees  posted at New Delhi or Chennai and the employees within the State  offends Article 14 of the Constitution of India. It is within the domain  of the State Government to provide special or other allowances to  such employees because of the vagarious of the posting at the distinct  place from the State but we do not find any justification in differential  payment of the DA to such employees.  

20.In view of the findings recorded hereinabove. We do not find any  infirmity or illegality in the impugned order and therefore, the writ  petition deserves dismissal which is accordingly dismissed.  

21.Urgent photostat certified copies of this judgment, if applied for, be  made available to the parties subject to compliance with requisite  formalities.  

 (Harish Tandon, J.)

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DA order by Hon'ble  Calcutta High Court

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