'Fundamental Right Under Article 21': Calcutta High Court Orders State Govt To Pay Dearness Allowance To Its Employees Within 3 Months

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

A Bench comprising Justice Harish Tandon and Justice Rabindranath Samanta ordered, 

"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 Court underscored that 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. Opining further that the legal right to get Dearness Allowance as a way to sustain livelihood has been elevated as a fundamental right under Article 21 of the Constitution, the Court observed, 

"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."

The Court further dismissed the State government's argument that it does not have the financial capability 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) by observing, 

"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...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."

The Court further held that the discrimination in payment of Dearness Allowance by the State government to the employees posted at New Delhi or Chennai and the employees within the State violates the right to equality enshrined under Article 14 of the Constitution of India. The Court opined that 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 there is no  justification in differential payment of Dearness Allowance to such employees.

"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 Court observed. 

It may be noted that a Division Bench back in 2018 had ruled that the Dearness Allowance (DA) recommended by West Bengal's 5th Pay Commission is a "legally enforceable right" of employees serving under the Government of West Bengal.

Case Title: State of West Bengal v. Consideration of State Government Employee 

Case Citation: 2022 LiveLaw (Cal) 192

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