Gauhati High Court
Tripura Govt. Employees Federation vs State Of Tripura And Anr. on 7 February, 1996
Equivalent citations: (1997)ILLJ766GAU
JUDGMENT N.G. Das, J.
1. The question for decision in this Writ Petition filed in the representative capacity under Article 226 of the Constitution of India is whether the employees of the Government of Tripura are entitled to get the Dearness Allowance as recommended by the Third Pay Commission (hereinafter referred to as the Commission) and accepted by the State Government by its Memorandum bearing No. F.4(6)-FIN(PC)/8 dated July 18, 1988 (Annexure-4).
2. The facts and circumstances under which this case has been filed may, therefore, be briefly stated as under:
3. The Government of Tripura by its Notification No. F.3(1)- FIN(PC)/85 dated November 4, 1985 constituted a Pay Commission (Third Pay Commission) to consider the question of salaries and allowances of Tripura Government employees and recommend pay structure. The terms of reference, as modified, required the Commission to consider the cases of anomalies in pay scales of various categories of posts, Dearness Allowance elements, all other emoluments etc. The terms of reference also required the Commission to make recommendations which may be desirable and feasible, keeping in view and having regard to, amongst other relevant factors, the recommendations of the Fourth Central Pay Commission, the economic condition in the State, the resources of the State Government and demands thereon.
4. To determine the Dearness Allowance the Fourth Central Pay Commission took the year 1960 as the base year equivalent to 100 point being All India Average Price Index. Thus price index point in the year 1986 was 608 and the Central Pay Commission recommended increase/enhancement of Dearness Allowance by 1 (one) per cent over the rise of price index per point after 608 and mode of assessment would be 6(six) monthly payable with the salary for the month of March and September every year having regard to the price index of preceding 12 (twelve) months (Annexure-5). The Central Government accepted the recommendation about payment of Dearness Allowance with modification that the periodicity would be March and September (Annexure-6).
5. Accordingly the Central Government kept proper records of the price index point from time to time and paid its employees the enhanced Dearness Allowance. It is stated that price index point stood at 1454 in April, 1995, 1479 in May, 1995, 1509, in June 1995 and 1543 in July, 1995. The State Government also accepted this position (Annexure-8).
6. The Central Government as per the recommendation of the Central Pay Commission paid 136 per cent till October 1, 1995. But the State Government even though accepted the recommendations of the Commission in respect of payment of Dearness Allowance at the Central rates, it paid only 92 per cent uptill October 1, 1995. The State Government employees were, therefore, deprived of 44 per cent till that date. It is further stated that the percentage of price index enhanced upto 153.78 per cent but the respondents paid only 92 per cent and due to non-payment of Dearness Allowance upto that point a lowest grade employee has been deprived of approximately Rs. 540/- per month and an employee having maximum grade of pay scale has been deprived of approximately Rs. 2380/-permonth.
7. In the Writ Petition it has been alleged that even though the petitioner-Association submitted repeated representations to the respondents for clearing up the upto date Dearness Allowances, the respondents did not take any effective steps for payment of upto date Dearness Allowances.
8. The petitioner has, therefore, prayed for issuance of a Writ of Mandamus directing the respondents for payment of the unpaid Dearness Allowances to all its employees.
9. The respondents contested the Writ Petition by filling an Affidavit-in-opposition wherein it has, inter alia, been contended that it is not a fact that the Government of Tripura is not releasing Dearness Allowance to its employees at the rate given by the Central Government. It is, however, admitted that the respondents could not cope up with the periodicity of releasing such Dearness Allowance as and when the Central Government released such Dearness Allowance.
10. It is also admitted that the respondents accepted the recommendations of the Commission but it has been contended that such acceptance did not confer any right upon any employee to claim it at any point of time ignoring the liabilities, responsibilities and duties of the respondents towards larger section of the people in the State and that such acceptance has not conferred any legal right to the petitioner to agitate before the Court in a Writ Petition under Article 226 of the Constitution.
11. The further contention of the respondents is that the State of Tripura being solely dependent upon the Central assistance, its obligation towards its employees in respect of payment of financial assistance depends upon the receipt of Central assistance. However, the State Government cleared 92 per cent of the Dearness Allowance and subsequently by an announcement dated January 8, 1996 sanctioned 12 per cent Dearness Allowance with effect from March 1, 1996. It has been contended that the State Government receives assistance from the Central Govt. through the award of the Finance Commission and Central Plan Assistance as determined by the Planning Commission. But successive Finance Commissions did not accord fair treatment to the State of Tripura to meet its legitimate requirements. According to the award of the Finance Commission, State Government receives assistance for the plan programme through the Central Plan Assistance, 90 per cent of which is grant and the balance 10 per cent is loan repayable by the State Government at prescribed rates of interest. Therefore, the State Government had to borrow money from the Financial Institutions and due to this borrowing the debt stood at Rs. 121.04 crores during the year 1995-96. That apart, the Ninth Finance Commission ignored the consumption of basic goods which was much higher in Tripura and as such fixation of tax rate of growth of revenue at 11.5 per cent was unreasonable.
12. Moreover in view of the need to conserve the Himalayan ecology system, forests can no longer be treated as a source of revenue in Tripura. All these facts were brought to the notice of the Ninth Finance Commission but it made its recommendation without considering the various factors such as percentage of per capita income, loss of forest revenue, uneconomical load factors, expenditure for upgradation of standards of administration, high cost of labour etc. The State of Tripura specifically brought to the notice of the Tenth Finance Commission the difference in the rates of Dearness Allowance sanctioned by the State Government as compared to the Central Government rates. But in-spite of all these facts the recommendation of the Commission fell far short of the State requirements. The Tenth Finance Commission grossly under-estimated the expenditure of the State. While the State Government asked for a total devolution of Rs. 4,952.26 crores in the form of share of taxes and grant-in-aid to meet the revenue expenditure during these five years period, the Commission recommended Rs. 2,775.85 crores.
13. It is further stated that various other problems, namely, refugees from Bangladesh, natural calamities, disruption of road communication due to successive floods, growth of population due to migration etc. were brought to the notice of the Tenth Finance Commission in time. But inspite of being aware of all these problems, the Central Government released 462.08 crores leaving a short fall of Rs. 18.25 crores. The further contention of the respondents is that in the budget of 1995-96 the total non plan provision is Rs. 619.93 crores and out of this 73.39 per cent is meant for Salaries and Wages and only 164.94 crores (26.61 per cent of the non plan provision) is available for other expenditure.
14. It is averred that the State Government cannot divert the plan assistance for non plan expenditure beyond a limit. Anyhow, despite all these financial constraints the State Government sanctioned Dearness Allowance upto 92 per cent plus 12 per cent and hence in view of the financial constraints it cannot be said that the State Government is not taking care of the interest of its employees,
15. As regards election manifesto it has been stated that that was nothing but a pious and benevolent desire and not an assurance at all.
16. The respondents have, therefore, submitted for dismissal of the Writ Petition.
17. Before entering into the rival contentions, it may be mentioned here that there is no dispute that the purpose of Dearness Allowance is to neutralise a portion of the increase in the cost of living. During his arguments, Mr. A. Chakraborty, learned Advocate General has also not disputed that there has been a substantial increase in the cost of living index justifying the grant of increase of Dearness Allowance. It is also an admitted fact that recommendation of the Commission for payment of Dearness Allowance at the Central rate was accepted by the Government of Tripura without any reservation (Annexure-4). That the Central Government paid 136 per cent till October 1, 1995 is also an admitted fact (Annexure-7).
18. The Third Pay Commission Report dealt with the payment of allowances and other emoluments under Part-10 of its report and in respect of Dearness Allowance it made the recommendation in the following words:-
"Dearness Allowance:
This allowance is paid for compensating erosion of real wages of employees by the impact of the rising prices.
There is nothing in sight to suggest that the price will stabilise in the near future. Thus, the need for this allowance not only exists but is very likely to continue for a long time to come.
Alt the Employees' Organisations without exception have urged for payment of Dear-ness Allowance elements atthe same rate and periodicity as under the Central Government. The Commission, after careful consideration of all aspects, particularly the fact the payment of this allowance at Central Rates and periodicity is in force in many States, recommends that payment of Dearness Allowance elements may be made at Central rates. The periodicity of payment may also be as in the Central Government from time to time".
19. The Government of Tripura by its Memorandum bearing No. F.4(6)-FIN(PC)/87 dated July 18, 1988 contained in Annexure-4 accepted this recommendation without any sort of reservation. In drawing my attention to this Memorandum, Mr. B.B.Deb, the learned senior counsel appearing on behalf of the petitioner has, therefore, submitted that this Memorandum would clearly show that the Government of Tripura accepted the recommendation for payment of Dearness Allowance at the Central rates without any reservation and hence the Government cannot now deny payment of the Dearness Allowance at the Central rates as it is an admitted fact that there has been a substantial increase in the cost of living index. One of the terms of reference as would appear from the report of the Commission at page 5 is:
"The terms of reference require the Commission to make recommendations which may be desirable and feasible, keeping in view and having regard to, amongst other relevant factors, the recommendations of the Fourth Central Pay Commission, the economic condition in the State, the resource of the State Government and demands thereon".
20. It appears from the report of the Commission that the Commission while making recommendations for Dearness Allowance at the Central rates kept all relevant factors, namely, the economic condition in the State, the resources of the State Government etc. in view. It has, therefore, been argued by Mr.Deb that a right has accrued to the employees to get payment of the Dearness Allowance as per the recommendation of the Commission.
21. But it has been contended by learned Advocate General that even though the Government accepted the recommendations for payment of Dearness Allowance at the Central rates, such acceptance has not accrued any legal right to the employees for its payment at any point of time. It is submitted by Mr. Chakraborty that payment of Dearness Allowance is a matter of grace and not a matter of right. According to him, the Dearness Allowance is paid to the employees under Rule 44 of the Fundamental Rules and under this provision it is a matter of discretion with the State Government whether it will grant Dearness Allowance and if so, how much? That being the legal position, it is argued that the prayer for Mandamus is clearly misconceived. According to him, Rule 44 of that Fundamental Rules confers no right on the Government servants to the grant of Dearness Allowance. It imposes no duty on the State to grant it. It merely confers a power on the State to grant compensatory (sic) allowance at its own discretion. But Mr. Deb has contended that this argument of the learned Advocate General is not acceptable as the Government while constituting the Commission had in its view that there had been a substantial increase in the cost of living index and keeping that fact in view in the terms of reference to the Commission it was particularly mentioned that the Commission should keep in its view the recommendations of the Fourth Central Pay Commission. The Commission also having regard to the facts in view made the recommendations for payment of Dearness Allowance at the Central rates and it being accepted without any sort of reservation the Government cannot, now, say that its acceptance of the recommendations imposed no duty on the State to grant it. It is argued that the recommendations of the Commission were accepted as far back as on July 18, 1988 and the employees having discharged their duties can very well maintain an action in respect of the pay and allowances unpaid. It is submitted that pay and allowances of a public servant, once it has become payable, has always to be treated as debt.
22. But Mr. Chakraborty in support of his contention that payment of Dearness Allowance is nothing but a grace has placed reliance upon a decision of the Supreme Court rendered in the case of the State of Madhya Pradesh, Appellant v. G.G. Mandawar, Respondent reported in (1954-II-LLJ-673).
23. I have gone through the judgment but I am of opinion that this decision is not applicable to the present case as the facts of that case are quite distinguishable from the case in hand. The question for decision in that case (appeal) was whether a resolution of the Government of Central Provinces and Berar, now Madhya Pradesh, dated September 16, 1948 fixing a scale of Dear-ness Allowance to be paid to its servants was repugnant to Article 14 of the Constitution. What happened in that case was that on May 10, 1946 Central Government appointed a Central Pay Commission to enquire into and report on the conditions of service of its employees with particular reference to "the structure of their pay scales and standards of remuneration with the object of achieving rationalisation, simplification and uniformity to the fullest degree possible" . The Commission by its report dated May 3, 1947 recommended the grant of Dearness Allowance on the specified scale. On May 27, 1947 the Government of Central Provinces and Berar appointed a Pay Committee "to examine the recommendations of the Central Pay Commission and to report the extent to which and the modifications subject to which these recommendations should be accepted by the Provincial Government, so far as Government servants under its rule-making control are concerned".
24. By its report dated June 22, 1948 the Committee recommended the grant of Dearness Allowance on a scale which though practically identical with that adopted by the Commission in respect of salaries above Rs. 400/- per mensem, was less than it as regards salaries of Rs. 400/- per mensem or less. These recommendations were accepted by the Government by its Resolution dated September 16, 1948. This difference between the two scales caused considerable dissatisfaction among the employees concerned, and after unsuccessful attempts to get redress on the executive side, they filed through their representative the respondent, an application under Article 226 of the Constitution.
25. On examination of the two reports it was found by their Lordships that in paragraph 31 the Committee observed that unlike the Central Pay Commission they were taking into consideration the financial resources of the State in fixing the scale. Thus, the Committee approached the problem from a different angle and applied different principles in fixing the scale of Dearness Allowance.
26. These facts clearly indicated that the Committee went into the matter independently, and viewed the question from a different standpoint, and in formulating the scheme which they did, they did not adopt the Report of the Commission though they derived considerable assistance from it. Actually what happened was that there was some coincidence between two scales at some stages and that was not adoption of the report of the Central Pay Commission by the Committee.
27. In the present case the Commission went into the matter independently, and viewed the question of payment of Dearness Allowance after taking all the relevant factors, namely, substantial increase in the cost of living index, the economic condition in the State, the resources of the State Government etc. and after taking all these factors in view the Commission recommended that the Govt. should pay Dear-ness Allowance to its employees at the Central rates. The State Government in its turn also accepted the recommendations as stated above.
28. In the background of all these facts, I am of the view that this decision is not at all applicable to the present case.
29. Now as regards the question as to whether any legal right accrued to the employees by virtue of the acceptance of the recommendation, Mr. Deb has contended that such administrative order accepting the recommendations, in the back-ground of all the facts, has conferred justiciable right upon the petitioner which can be enforced in a Court by a Writ or Order in the nature of Mandamus. In support of his contention Mr. Deb has placed reliance upon a number of decisions, the first of which is a decision rendered in the case of D.P. Pathak and Anr., Petitioners v. The State of Punjab and Ors., Respondents reported in 1980 AISLJ Punjab and Haryana, 559 where a question arose as to the qualification for appointment to the post of Deputy Director in Punjab Ayurvedic Department Since the Government prescribed the qualification by some executive order instead of framing necessary Rules an argument was advanced that such executive instructions might not have the same effect as the Rules have. But it was held that even if there were no Rules prescribing any qualification for appointment to the post of Deputy Director, the Government can in its executive jurisdiction prescribe the qualifications and such executive instructions will have the same effect as the Rules have and an appointment in their violation can give a person a right to challenge the same.
30. The next decision relied on by Mr. Deb is the decision rendered in the case of Y. Ganga Raju and Ors., Petitioners v. The Railway Board and Ors., Respondents reported in AISLJ 1983 Andhra Pradesh, 45. In that case Railway Employees went on strike and many of them did not attend inspite of notice. So, orders were passed to retire the employees who having attained the age of 55 years failed to report for duty on February 2/3, 1981. In the order it was mentioned that such employee would be paid a sum equivalent to the amount of his pay and allowance for a period of three months calculated at the same rate at which he was drawing them immediately before his retirement. It was argued by learned Advocate General that such instructions were in the nature of administrative instructions and they did not have any statutory force. But a Division Bench of Andhra Pradesh High Court under paragraph 27 of its judgment held:-
"But it has been repeatedly held by this Court that when an authority gives instructions regarding the implementation of certain orders, that authority has to follow the instructions issued by itself before requiring others to obey its orders and if the authority does not conform to its own orders it is open to this court to interfere in appropriate cases".
31. To repel the contention of Mr. Deb learned Advocate General has, in his Written Argument, placed reliance upon a decision in the case of Killick Nixon Ltd., Appellant v. Killick & Allied Companies Employees' Union, Respondent reported in (1975- II-LLJ-53)(SC). The question which posed for consideration in those appeals was whether there should be ceiling on Dearness Allowance. In the case in hand there is no question of imposition of any ceiling on the Dearness Allowance. So, the observation made in those appeals that the Company was able to make out a case for imposition of a ceiling and that at what particular amount there should be a ceiling on Dearness Allowance was a matter which would have to be gone into by the Tribunal do not support the contention of learned Advocate General.
32. The next decision relied on by Mr. Chakraborty is the decision in the case of The Management of Shri Chalthan Vibhag Khand Udyog Sahakari Mandli Ltd. etc., Appellants v. G.S. Barot and Anr., Respondents reported in (1979-II-LLJ-383)(SC). This decision is also not applicable to the present case as here in the case in hand the question of 100 per cent neutralisation is not involved. The claimant-petitioner claimed Dearness Allowance upto the extent to which the Central Government has granted. Admittedly, Central Government granted Dearness Allowance upto 136 per cent till October 1, 1995. Under para 10 of the Writ Petition it has been stated the price index increased by 935 over the price index of 608 in 1986 and as such the percentage of price index enhanced by 153.78 per cent and the employees are entitled to be paid 153.78 per cent increased Dearness Allowance on their basic pay. This statement has not been denied by the respondents. So, question of 100 per cent neutralisation does not arise. Therefore, this decision is not applicable to the present case.
33. Reliance has also been placed upon a decision in the Case of the Workmen, employed by Indian Oxygen Ltd., Appellants v. Indian Oxygen Ltd., Respondent reported in AIR 1986 SC 125. This decision is also of no help as in that case the Government of Uttar Pradesh referred a dispute to the Industrial Tribunal for adjudication in respect of determination of Dearness Allowance to be paid to the Industrial Workers at Kanpur. In the present case what should be the Dearness Allowance has already been determined by the Commission and accepted by the State Government. So, there is no question for re-determination of the Dearness Allowance in the present case.
34. As a matter of fact, the decisions relied on and as referred to above by learned Advocate General are not relevant for the present case. In the case in hand it can be very well said that by declaration of its acceptance of the recommendation the Government induced a reasonable belief to its employees that they would be getting Dearness Allowance at Central rates and that assurance is nothing short of a promise by conduct and hence rules of estoppel bind the Government. It is an admitted fact that in pursuance of the recommendation of the Commission the Government paid Dearness Allowance upto 104 per cent (92 per cent plus 12 per cent).
35. So, in view of all the facts, circumstances and the decisions discussed above I am of the view that by accepting the recommendations of the Commission vide Memorandum bearing No. F.4(6)-FIN(PC)/87 dated July 18, 1988(Annexure-4) the respondents cannot now take a stand that no right accrues to the petitioner for payment of the balance Dearness Allowance. The respondents having failed to do so, it is open to the petitioner to agitate the matter by means of an application under Article 226 of the Constitution of India.
36. It is true that an additional financial burden would be thrown on the Government. In the Additional Affidavit submitted by the respondents it has been stated that the Government of Tripura announced 12 per cent Dearness Allowance on January 8, 1996 to be effected from March 1, 1996 for the State Government Employees and Officers. It has been stated that 'this 12% is consisting of two instalments amounting to 5% and 7% which was sanctioned by the Central Government from July 1, 1993 and January 1, 1994'. This statement clearly indicates that the Central Government sanctioned the amount sometime back. Annexure-7 document showing payment of Dearness Allowance from stage to stage indicates that upto January 1, 1994 Central Government paid 104 per cent Dearness Allowance to its employees whereas the State Government paid only 60 per cent Dearness Allowance to its employees. After January 1, 1994 the Central Government and the State Government paid Dearness Allowance upto October 1, 1995 as per the following table:
Date Rate of Dearness Allowance recieved by the Central Govt. Employees p.m. (percentage) (%) Rate of Dearness Allowance received by the Tripura Govt.. Employees p.m. (percentage) (%) Rate of Dearness Allowance by the Tripura Govt.. Employees p.m. (percentage) (%) 1 2 3 4 1.5.1994 104 71 33 1.7.1994 114 71 43 1.1.1995 125 71 54 1.4.1995 125 83 42 1.7.1995 136 83 53 1.10.1995 136 92 44 By the last declaration dated January 8, 1996 the State Government also announced for payment of additional Dearness Allowance of 12 per cent to be effected from March 1, 1996. So, the State Government Employees are entitled to get another 32 per cent of the Dearness Allowance.
37. The respondents have not placed the relevant records to show what amount of money they got from the Central Government under different Heads particularly what was the reply of Central Government for payment of unpaid Dearness Allowance to the State Government employees. The admitted position is that the Central Government paid 136 per cent till October 1, 1 995 and the State Government upto that period paid only 92 per cent Dearness Allowance i.e. 44 per cent less. By the last announcement dated January 8, 1996 for payment of additional 12 per cent, the amount comes to 104 per cent i.e. 32 per cent remains unpaid.
38. Considering the additional financial burden on the Government, Mr. Deb has submitted that he will have no objection in case the respondents choose to adjust the Dearness Allowance suitably i.e. if the Dearness Allowance is ordered to be deposited in the General Provident Fund recoverable after a few years.
39. It is true that an additional financial burden will be thrown on the State Government which is mainly dependent on the Central assistance. So, considering the financial constraints, the Government of Tripura has been facing, I am of the view that unpaid Dearness Allowance may be paid in instalments. Accordingly the respondents are directed to implement the recommendations of the Commission in respect of payment of unpaid Dearness Allowance viz. 32 per cent in three instalments i.e. the first instalment of 10 percent has to be paid within six months from March 1, 1996, the second instalment of 11 percent has to be paid within next six months i.e. within six months starting from September 1, 1996 and the third instalment of 11 percent has to be paid within six months from March 1, 1997. These amounts may, however, be ordered to be deposited in the General Provident Fund of the employees withdrawable in accordance with Rules, after expiry of a period of three years from the date of each deposit. This order may not, however, stand in the way of either paying the aforesaid unpaid Dearness Allowance or withdrawal of the same from the General Provident Fund earlier.
40. With the above directions, the petition is disposed of with no order as to costs.