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

Mridul Gupta ,
  23 May 2022       Share Bookmark

Court :
The Hon'ble Calcutta High Court
Brief :
State of West Bengal Vs Consideration of State Government Employee
Citation :
WPST 102 OF 2020

19 May 2022

The Honourable Mr. Justice Harish Tandon
The Honourable Mr. Justice Rabindranath Samanta

Petitioner(s): State of West Bengal
Respondent(s): Consideration of State Government Employee


This writ petition had been filed by the petitioners, challenging the judgment and order passed by the West Bengal Administrative Tribunal (hereinafter referred to as the Tribunal).


West Bengal Services (Revision of Pay and Allowance) Rules, 2009

Rule 3:Definitions

(c) Existing emoluments are defined as the sum of existing basic pay,dearness pay appropriate to basic pay, and dearness allowance appropriate to basic pay + dearness pay at index average 536 (1982 =100).


  • Dissatisfied with the State's inaction and discriminatory activity in granting Dearness Allowance to its employees, the respondents filed the application with the Tribunal demanding remedy.
  • The Learned Tribunal dismissed the application in its order.
  • Respondents filed a writ petition in the High Court, feeling aggrieved by the order of dismissal of the application, and a Co-ordinate Division Bench by the judgement set aside the order of the Tribunal and remanded the matter back to the Tribunal for fresh adjudication on some issues framed by the Division Bench.
  • Petitioners filed a review application requesting review of the judgement after being dissatisfied with the Co-ordinate Division Bench's decision and order. The petitioners' chosen review application was denied. However, on the learned Advocate General's request, the Co-ordinate Division Bench granted the petitioners time to file their affidavit-in-opposition with the Tribunal. In accordance with the directives of a Co-ordinate Bench, the learned Tribunal heard the initial application and disposed of it after considering the materials put before it.


  • Whether the government's inability to pay or disburse Dearness Allowance be considered a denial of an employee's accrued right?


  • The learned Advocate General contended, citing a decision in the case of India General Navigation & Railway Company Limited, Calcutta and Others Vs Workmen and Others [AIR 1960 SC 1286], that the principle of payment of Dearness Allowance was dependent on an employee's place of posting where his family members (wife and children) reside. The payment of Dearness Allowance was deeply linked to the employer's financial ability, and if the employer's resources did not permit the employer to pay Dearness Allowance to offset an employee's high cost of living, the employer was within its legal domain to decline payment or disbursement of Dearness Allowance. In support of his argument, the learned Advocate General referenced a judgement in Tamil Nadu Electricity Board represented by its Chairman Vs Tneb Thozhilalar Aykkiya Sangam by its General Secretary [(2019) 15 SCC 235]. To summarise, the payment of Dearness Allowance to government employees was within the government's discriminatory domain, depending on factors such as its financial resources, an employee's place of posting, and so on, and the government's inability to pay or disburse Dearness Allowance cannot be considered a denial of an employee's accrued right.


  • It was argued that the State's submission that it was unable to pay Dearness Allowance to its employees due to financial constraints was not acceptable because the Government pays Dearness Allowances at the Central Government rate to members of the All India Administrative Service and the All India Police Service who serve under the direct control of the State Government. It was also argued that employees employed in Delhi and Chennai but governed by the statutory Rules of the State Government were receiving Dearness Allowances at the same rate as the Central Government, and that this action by the government violated the golden rule of equality enshrined in Article 14 of the Constitution. Finally, the Court's attention was brought to the description of "existing emoluments" in Rule 3 of the West Bengal ROPA Rules, 2009, which emphasised that an employee's claim for Dearness Allowance had fructified as a statutory entitlement and was enforceable by the writ Court or Administrative Tribunal. On this point, it was contended that the learned Tribunal's decision was entirely reasonable and did not necessitate any intervention by the High Court.


  • The Court held that, in addition to acquiring the enforceable legal right to receive Dearness Allowance based on the All India Consumer Price Index methodology, the employees' right to sustain their livelihood with human dignity had been fructified or elevated as a fundamental right as enshrined in Article 21 of the Constitution. The State cannot deny such a privilege to Government Employees, who are the key personnel behind the proper operation of a government. As stated by the Pay Commission, the Court agreed that in order to respect the statutory rights of government employees to D.A Allowances at the aforesaid rate, the government must create all of its resources.
  • The Court reasoned that denial or deprivation of the employees' lawful claim to Dearness Allowance to continue their livelihood in a dignified way could have a demoralising effect on them, which could disrupt the smooth working of the government. While the employees' claim to Dearness Allowance was supported by statutory and fundamental rights, and the Court concluded that the State turned a deaf ear to such rights, this Court, in exercising its exceptional judicial jurisdiction, can direct the State to implement such employees' rights.
  • The Court observed that categorising State Government personnel based on their postings in different areas would amount to a classification within the homogeneous class. The Court was conscious of the legal concept that classification within a class can be recognised if it was based on rationale and there was an intelligible difference differentiating one group of people from another. There must be a rational and reasonable connection with the stated goal of such classification.


  • The High Court upheld the order of the West Bengal Administrative Tribunal's decision and ordered the State government to pay the Dearness Allowance and Arrear Dearness Allowance within three months, in accordance with the West Bengal Services (Revision of Pay and Allowance) Rules, 2009 (ROPA Rules, 2009).
  • Because the Court found no flaws or illegalities in the impugned decree, the writ petition was dismissed.

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