Dearness Allowance is a legally enforceable right of State Govt. employees, Calcuttaa High Court

The Calcutta High Court has ruled 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..A Division Bench of the Justices Debasish Kar Gupta and Shekhar B Saraf held that though the Pay Commission recommendations are not enforceable in nature, they become binding on the Government once they are accepted.. “It is the age old settled principle of law that the recommendation made by the Pay Commission is not binding upon the Government and non-acceptance of the recommendation does not amount to violation of Article 14 or 16 of the Constitution of India, but in the event reference is made in respect of all employees of the Government concerned and it accepts the recommendations of the Pay Commission, it is bound to implement those recommendations in respect of all employees of the Government concerned.”.The judgement was pronounced in an appeal by Confederation of State Government Employees, West Bengal against an order of the West Bengal Administrative Tribunal (Tribunal)..The Tribunal had concluded that the State Government’s refusal to pay the recommended DA as per the Pay Commission’s Report of February 2009 did not result in denial of an accrued right of a Government employee..It held that payment of DA to its employees was “absolute prerogative” falling with the discretionary domain of the State Government..The 5th Pay Commission was constituted by the West Bengal Government for recommending the revised pay structure of its employees..The Commission recommended that the State Government should clear the backlog of the DA sanctioned by the Central Government w.e.f. July 1, 2008, and then fall in line with the Central Government pattern of sanctioning two installments of DA each year..Accepting its Report, the West Bengal Government framed West Bengal Services (Revision of Pay and Allowance) Rule, 2009 in the exercise of the power conferred by the proviso to Article 309 of the Constitution of India. The State Government also accepted the recommendation of the Pay Commission relating to payment of Dearness Allowance to its employees by incorporating DA as a component of the “existing emoluments” while revising their pay structures..The Petitioner Confederation moved the Tribunal after the State Government failed to pay the DA in time, as envisaged by the Pay Commission and sought a direction to the State authorities to immediately comply with the report and the recommendations of the 5th Pay Commission Report..It argued that in light of the revised pay structure as per West Bengal Services (Revision of Pay and Allowance) Rule, 2009 and a subsequent memorandum issued by West Bengal Finance Department, Audit Branch to further clarify the adoption of this new pay structure, the West Bengal Government could not have denied them the right to DA..The Court, thus held,.“As a consequence once the Government of West Bengal, accepts the recommendation of the 5th Pay Commission for payment of Dearness Allowance to the extent as indicated hereinabove, it confers legally enforceable right on its employees to get the Dearness Allowance.“.The Court, however, remanded back two additional issues in the matter, namely, the legality of differential rate of DA for employees serving under the Government of West Bengal and Central Government, and the discrimination in payment of DA 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, to the Tribunal.The issues, as directed by the High Court, would be heard by the Tribunal and disposed of preferably within two months..The Petitioner Confederation was represented by Senior Advocate Sardar Amjad Ali with Advocates Prabir Chatterjee, Abhijit Chakraborty and Masum Ali Sardar..State of West Bengal was represented by Advocate General Kishore Dutta, Government Pleader Joytosh Majumder, and Advocate Siddhartha Ghosh..Senior Advocate BR Bhattacharya with Advocate Firdous Samim represented an added respondent who has been working for gain under the State Government in the Finance Department..Read the judgement below.