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The Calcutta High Court on Friday upheld the order of the West Bengal Administrative Tribunal and directed the State government to release the Dearness Allowances and Arrear Dearness Allowance to its employees as per the West Bengal Services (Revision of Pay and Allowances) Rules, 2009 (ROPA Rules, 2009) within a period of 3 months.

A division bench of Justice Harish Tandon and Justice Rabindranath Samanta held, "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."

The bench emphasized that to get Dearness Allowances (DA) at the rate to be calculated in terms of the All India Consumer Price Index average of 536 (1982=100) is now the legally enforceable right of the State government employees.

Court was of the opinion that “the legal right to get DA as a way to sustain livelihood has been elevated as a fundamental right under Article 21 of the Constitution”.

The bench relied upon Apex Court's judgment in Workmen Employed By M/s Indian Oxygen Ltd. Vs. M/s. Indian Oxygen Ltd. (1985) and Indian General Navigation and Railway Co., Ltd. Calcutta and Anr. Vs. Workmen and Anr. (1960), where it was held that DA is an integral part of the wages awarded to its workmen at the several units at different places.

 “What we feel, apart from acquiring the enforceable legal right to get DA 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 rights available to Government Employees who are the main workforce behind the functioning of a Government in the 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. at the rate as above, the government must generate all its resources”, the bench observed.

Consequently, the bench dismissed the State government’s contention that it does not have the financial capability to pay DA to its employees at the rate to be calculated using the methodology of uniform All India Consumer Price Index average 536 (1982=100).

“We feel that denial or deprivation of the legitimate claim of DA of the employees to sustain their livelihood in a dignified manner may have a demoralizing effect upon them which may in turn adversely affect the smooth functioning of the Government.....While the 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”, observed the bench.

Furthermore, the bench held that the discrimination in the payment of DA by the State government to its employees posted in New Delhi or Chennai and the employees within the State offends Article 14 of the Constitution of India.

The bench further stated that it is within the domain of the State Government to provide special or other allowances to such employees because of the variety of the posting at the distinct place from the State but there is no justification for differential payment of DA to such employees.

Conclusively, the court held, "There cannot be any categorization of the State Government employees on the basis of their posting at different locations as it would amount to 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 persons from another. There must be a rational and reasonable nexus with the avowed object sought to be achieved by such classification".

“We do not find any infirmity or illegality in the impugned order and therefore, the writ petition deserves dismissal," ordered the court.

Case Title: State of West Bengal & Ors. v. Confederation of State government employees, West Bengal & Ors.