Jharkhand High Court
State Of Jharkhand vs Md. Mosharaf Khan on 13 October, 2023
Author: Shree Chandrashekhar
Bench: Shree Chandrashekhar, Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Letters Patent Appellate Jurisdiction)
L.P.A. No. 155 of 2017
1. State of Jharkhand
2. The Principal Secretary, Water Resource Department, Government of
Jharkhand, Nepal House, P.O. & P.S. Doranda, District Ranchi,
3. The Deputy, Secretary. Water Resource Department. Government of
Jharkhand, Nepal House, P.O. & P.S. Doranda, District Ranchi
4. The Under Secretary. Water Resource Department, Government of
Jharkhand, Nepal House, P.O. & P.S. Doranda, District Ranchi,
5. The Chief Engineer, Minor Irrigation, Water Resource Department,
Government of Jharkhand, Abhiyantaran Bhawan, PO-G.P.O., PS-Kotwali,
Dist.-Ranchi.
........ Appellants/Respondents
Versus
1. Md. Mosharaf Khan, son of Late Ashraf Khan, Resident of village
Karbalah Chowk, Pahari Mohalla, P.O. & P.S. Medni Nagar, District
Palamu.
2. Kanhai Rai, son of Late Ramkumar Rai, resident of village Dumri, P.O.
& P.S. Manika, District Latehar.
3. Anul Ahmad, son of Late Safique Ahmad, resident of village Delha, P.O.
& P.S. Tarhasi, District Palamu.
4. Gyani Sao, son of Late Gokhul Sao, resident of village Nimia, P.O. Gahar
Pathara, P.S. Paltan, District Palamu.
5. Indradeo Mehtar, son of Late Bipat Mehtar, resident of village
Nawajaipur, P.O. Nawajaipur, P.S. Patan, District Palamu.
6. Radho Manjhi, son of Manjhi, resident of village Jaitukhand, P.O.
Rajwadih, P.S. Lesliganj. District-Palamu
7.Vishwanath Ram, w/o late Triveni Ram, r/o village-Nawakhas, PO-
Nawajajpur, PS-Paltan, District-Palamu
........Writ petitioners/Respondents
With
L.P.A. No. 156 of 2017
1. State of Jharkhand
2. The Principal Secretary, Water Resource Department, Government of
Jharkhand, Nepal House, P.O. & P.S. Doranda, District Ranchi,
3. The Deputy, Secretary. Water Resource Department. Government of
Jharkhand, Nepal House, P.O. & P.S. Doranda, District Ranchi
4. The Under Secretary. Water Resource Department, Government of
Jharkhand, Nepal House, P.O. & P.S. Doranda, District Ranchi,
5. The Chief Engineer, Minor Irrigation, Water Resource Department,
Government of Jharkhand, Abhiyantaran Bhawan, PO-G.P.O., PS-Kotwali,
Dist.-Ranchi. ........ Appellants/Respondents
2 L.P.A No. 155 of 2017 with L.P.A No.156 of 2017
Versus
1. Sanjay Kumar Tiwary, son of Shri Yamuna Tiwary, Resident of village
Rajwa. P.O. Rajwa, P.S. Medni Nagar, District Palamu.
2. Indra Deo Ram, son of Phogal Ram, resident of village Dhuri, P.O.
Nawazpur, P.S. Patan, Minor Irrigation Division, Medni Nagar, Palamu.
3. Ramjanam Choudhary, son of Late Nanghu Choudhary, resident of village
Patrihya, Kala, P.O Katubal, P.S. Chainpur, Minor Irrigation Division,
Medni Nagar, District Palamu.
4. Nand Kishore Singh, son of Late Lileshwar Singh, resident of village
Jorkar, P.O. Suwa, P.S. Medni Nagar, Minor Irrigation Division, Medni
Nagar, District Palamu.
5. Kawal Singh, son of Shri Khakhanu Singh, resident of village Khanwa,
P.O. Rajba, P.S. Medni Nagar, Minor Irrigation Division, Medni Nagar,
District Palamu.
6. Birendra Kumar Singh, son of late Sobhi Singh, resident of village
Faridpura, P.O. Sahar, Rampur- Alipur, P.S. Naubatpur, District Patna.
7. Urmila Kunwar, wife of Late Sadanand Thakur, resident of village Jod,
P.O. Sinjra, P.S. Daltonganj, District Palamu
........Writ petitioners/Respondents
CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
For the State of Jharkhand : Mr. Mrinal Kanti Roy, GA-I
Mr. Chandan Tiwari, AC to GA-I
For the Respondents : Mr. Saurabh Shekhar, Advocate
Mr. Anurag Kumar, Advocate
-----------------
ORDER
13th October 2023 These Letters Patent Appeals filed by the State of Jharkhand lay challenge to the order dated 2nd August 2016 passed in W.P(S) No.1711 of 2015 with W.P.(S) No.1896 of 2015.
2. Through supplementary affidavit dated 22nd April 2019, this has been brought to the notice of this Court that financial benefits accruing to the writ petitioners by virtue of the order dated 2nd August 2016 passed by the writ Court have been extended and paid to them.
3. Before the writ Court, fourteen persons who were working on Class-IV posts came raising a grievance against the order dated 16th October 2014 qua W.P(S) No.1711 of 2015 and the order dated 23rd September 2014 3 L.P.A No. 155 of 2017 with L.P.A No.156 of 2017 qua W.P(S) No.1896 of 2015 by which they were denied dearness allowance.
4. Md. Mosharaf Khan and others previously approached this Court in W.P(S) No.5888 of 2013 and Sanjay Kumar Tiwary and others came to this Court in W.P(S) No.4710 of 2012, with a claim that they are entitled for payment of salary in the lowest grade of pay-scale. These writ petitions were disposed of on different dates with a direction to the State of Jharkhand to make payment to them in the lowest grade of pay-scale. The writ Court placed reliance on "Nand Kishore Rai & Ors. v. State of Jharkhand" in W.P(S) No.700 of 2009 and the writ Court's order was upheld by the Letters Patent Court. This is not in dispute that the writ Court's order attained finality after a Special Leave to Appeal (C) No......../2013 CC 9080/2013 filed by the State of Jharkhand was dismissed on 8th May 2013. The State of Jharkhand has accepted the writ Court's order and made payment to the writ petitioners in the lowest grade of pay-scale since 10th September 2007. This is also a matter of record that the writ petitioners have now been regularized in service w.e.f. 16th March 2011.
5. However, the writ petitioners were aggrieved by the decision of the Department of Water Resources, Government of Jharkhand which declined to grant dearness allowance to them.
6. Before the writ Court, basing on the judgment in "Union of India v. Dharampal & Ors." (1996) 4 SCC 195, the writ petitioners assailed the order dated 23rd September 2014/ 16th October 2014 contending that the minimum of pay-scale shall include dearness allowance.
7. The writ Court has held as under:
"7. Having heard the learned counsels for both sides and upon going through the record, I find that pursuant to the directions of this Court as contained in Annexure-10 to the writ applications, the petitioners have since been paid their wages equal to the salary at the lowest grade of the employees of that cadre in their department. Learned counsel for the petitioners has confined his argument for the payment of dearness allowance only.
8. In Union of India & Others Vs. Dharma Pal and Others, reported in (1996) 4 SCC 195, the Hon'ble Apex Court has held that the daily wages earners are also entitled to the admissible D.A on their wages equal to minimum scale of pay, laying down the law as follows:-
"6. ----------- The daily wage workers / casual workers who are not regularized and work is taken from them are entitled to minimum of scale of pay prescribed for that post. In 4 L.P.A No. 155 of 2017 with L.P.A No.156 of 2017 addition to that, they are also entitled to 60% of the DA at Punjab pattern which is being followed in all other cases. -----
----- ."
9. As such, the question whether the persons working on daily wages shall be entitled to the D.A on the minimum of the basic pay scale, is no more res-integra and the Hon'ble Apex Court has held that they are entitled to the benefits of dearness allowance.
10. In view of the aforementioned discussions, the respondents authorities are directed to allow the benefits of D.A to the petitioners also on their wages, equal to the minimum on the basic pay scale, at the rates of D.A applicable from the dates from which the petitioners are getting their wages on the minimum of the pay scale.
11. The respondent authorities, particularly respondent No.2, the Principal Secretary, Water Resources Department, Government of Jharkhand, is directed to pass necessary orders, allowing the D.A to the petitioners on their wages on the minimum of the pay scale, positively within a period of two months from the date of receipt of this order. The orders contained in Memo No. 8092 dated 23.09.2014 & Memo No. 8296 dated 16.10.2014 as contained in Annexure-11 to the writ applications, stand quashed to the extent the benefits of D.A is disallowed by the said orders.
12. Both these writ applications are accordingly, allowed in part, with the directions as above."
8. It seems that the decision in "Dharampal" is based on some rules providing dearness allowance to the extent of 60% on the Punjab pattern which was being followed in other cases. Opposing the claim of the writ petitioners, the State of Jharkhand referred to the Resolution dated 28th February 2009 issued by the Department of Finance, Government of Jharkhand to submit that even basic pay does not include any other benefit like special pay etc. The decision in "State of Karnataka & Ors. v. Uma Devi & Ors." (2006) 4 SCC 1 was also pressed in service on behalf of the State of Jharkhand to contend that daily wage workers are not entitled for other allowances.
9. This is not a case set up by the writ petitioners that there is a rule in the Department of Water Resources or any other department under the Government of Jharkhand whereunder dearness allowance is included in the minimum of pay-scale. Moreover, the decision in "Dharampal" does not lay down a law that minimum of pay-scale shall include dearness allowance. On a plain reading of "Dharampal" it becomes abundantly clear that in addition to minimum of scale of pay the daily wage workers/casual workers were held entitled to 60% of dearness allowance. The plain language of paragraph no.6 in "Dharampal" cannot be construed to mean that the expression minimum of pay-scale shall include dearness allowance.
5 L.P.A No. 155 of 2017 with L.P.A No.156 of 201710. Having held so, the order dated 2nd August 2016 passed in W.P(S) No.1711 of 2015 with W.P.(S) No.1896 of 2015 is set aside and consequently L.P.A No.155 of 2017 and L.P.A No.156 of 2017 are allowed.
11. However, we direct that financial benefits paid to the writ petitioners shall not be recovered by virtue of the present order.
(Shree Chandrashekhar, J.) (Anubha Rawat Choudhary, J.) Sudhir/NAFR