DEVI Prasad Singh, J. - (1.) In these bunch of writ petitions common question of law and facts are involved, hence, I proceeded to decide the present bunch of writ petitions by the present judgment covering all the petitions. Every one suffers from the warmth of dearness on account of rise in consumer price index. With intention to meet out the adverse consequence and hardship on account of rise in consumer price index, dearness allowances are paid to the employees. When right to livelihood is guaranteed under Article 21 of the Constitution of India, whether inspite of fact that regular as well as work-charge employees both suffer equally on account of rise in consumer price index Government can provide ceiling on the dearness allowances of work charge employees ? Petitioners are aggrieved with the ceiling provided by the impugned order for payment of dearness allowances to the work-charge employee, hence, they have approached this Court under Article 226 of the Constitution of India. All the petitioners are the employees of Lok Nirman Vibhag and Irrigation Department discharging duties as work-charge employees.
(2.) THE brief facts of the case is that the petitioners in the present bunch of Writ Petitions were appointed between 1965 -85 as work charge employees in the respective department. THE regular employees get their salary from establishment budget. Whereas work charge employees get their salary from the estimate of work where they have been appointed. Volume VI of Para 667 of the Financial Handbook defines the work -charge employee. For convenience para 667 of the financial handbook is reproduced as under: " (667) Work -charged establishment will include such establishment as is employed upon the actual execution, as distinct from the general supervision, of a specific work or of sub -works of a specific project or upon the subordinate supervision of departmental Labour stores and machinery in connection with such a work or sub -works. When employees borne on the temporary establishment are employed on work of this nature their pay should for the time being, be charged direct to the work. " Volume VI of Para 669 of the Financial Handbook provides that the work -charge employees shall not be entitled for any pension or to leave salary or allowances except the allowances relating to travelling and daily allowances. THEy may be allowed and extra -ordinary pension and gratuity in certain conditions admissible under the rules contained in the Civil Services Regulations. However, the aforementioned provision contained in Financial Handbook has been de -notified or repealed by the State Government by notification dated 1 -1 -2000. THE relevant extract of the notification is reproduced as under: The controversy relating to the payment of equal dearness allowances to the regular employees as well as work charge employees has earlier drawn attention of this Court in a Writ Petition No. 1807 of 1997 (SS) which was decided by judgment and order dated 27 -8 -1999. It appears that earlier when ceiling was imposed by the respondents state a bunch of writ petitions were filed challenging the validity of decision taken by the State Government. During the pendency of writ petition the impugned order was passed by respondents state which was placed before this Court. On account of issuance of subsequent Government order providing ceiling on dearness allowances, earlier bunch of writ petitions were disposed of finally by judgment and order dated 26 -8 -1999 with the observation that in case there is any grievance relating to the fixation of salary the employees may raise such grievance before the competent authority. The question relating to the regularization of work charge employees was also considered by this Court. On account of assurance given by respondents state that they are proceeding ahead to consider the petitioner's case for regularisation in view of Apex Court judgment reported in 1998 (8) SCC 473, Raj Narain Prasad v. State of U. P. & Ors. , this Court had not proceeded ahead with the controversy on merit, and the writ petition was disposed of finally by judgment and order dated 26 -8 - 1999. It appears that grievance of the petitioners was not considered by the State Government satisfactorily, hence, they have challenged the impugned order dated 26 -8 -1999 by which the maximum ceiling limit have been placed on the grant of dearness allowance to the work charge employees. It is not disputed that employees working in the same cadre against the regular vacancy are getting regular pay scale with full dearness allowance in pursuance to decision taken by State Government on the basis of pay commission report without providing any ceiling limits. While assailing the impugned order Shri Hemendra Pratap learned Counsel for the petitioner and other Counsel who argued on behalf of petitioners had submitted that in pursuance to pay commission report the quantum of dearness allowances is decided by the State Government by revising the same in pursuance to hike in price index every year or at the interval of few years. The submission of the learned Counsel for the petitioner is that petitioner's have been paid salary in regular pay -scale available to the employees of the cadre. The work charge employees are being absorbed against regular vacancy in pursuance to Apex Court judgment in Raj Narain's case (supra ). Since petitioner discharges same duty which regular employees discharges they are entitled for dearness allowances which their counter part gets while discharging the same duty in the regular cadre. The further submission of the learned Counsel for the petitioner is that since rise in price index creates hardship and affects the regular as well as work charge employees equally, the revision of dearness allowances done in pursuance to pay commission report or for a particular cadre of the employees should be done without creating any difference between the regular as well as work charge employees. According to petitioner's Counsel since right to livelihood is a fundamental right guaranteed under Article 21 of the Constitution of India and dearness allowance is being revised on the basis of consumer price index which changes on hike in cost of living, the ceiling fixed by the State Government by the impugned order on the dearness allowance of the work charge employees is highly arbitrary unjust and improper hence violative of Articles 14 and 21 of the Constitution of India. Learned Counsel for the petitioner had relied upon the judgments reported in 1994 SCC (L&s) 1321, Hindustan Lever Ltd. v. B. N. Dougre & Ors. ; 1997 (5) SCC 10, Ashok (DR) v. Union of India; 1997 (8) SCC 191, Samatha v. State of Andhra Pradesh; 1997 (9) SCC 377, Air India Statutory Corporation v. United Labour, 2000 (2) LBESR 636 (SC): 1999 (3) SCC 601, Secretary H. S. F. B. v. Suresh & Ors. ; 2003 (6) SCC 469; State of West Bengal & Ors v. Pantha Chatterji; 2003 (6) SCC 1, Kapila Hingorani v. State of Bihar, 1998 (2) LBESR 75 (All) : (1998) 3 UPLBEC 2125; Prayag Narain & Ors. v. State of U. P. , AIR 1991 SC 537; Km. Shri Lekha Vidvarthi v. State of U. P. .
(3.) ON the other hand, the submission of learned Additional Chief Standing Counsel is that in pursuance to recommendation of equivalence committee which has revised the wages of work charge employees, the ceiling on the dearness of the employees of the Lok Nirman Vibhag and irrigation department can be provided by the State Government. The classification done by the State providing ceiling on the dearness allowances of work charge employees and not on the regular employees is a reasonable classification and does not hit by Article 14 of the Constitution of India. According to learned Additional Chief Standing Counsel Shri Alok Sinha the dearness allowance of the work charge employees was revised thrice. Learned Additional Chief Standing Counsel for the State also submitted that in view of judgment and order dated 27 -8 -1999 passed by this Court, the present writ petition is not maintainable and barred by constructive res judicata. It has been also submitted that on account of provision contained in 667 to 668 of the financial handbook Volume (6) the work charge employees were entitled for consolidated wages with the ceiling on dearness allowances. The benefit provided to the regular employees can not be provided to the work charge employees. The further submission of the learned Counsel for the State is that the principle of equal pay for equal work shall not be attracted in respect of work charge employees, in view of the fact they form distinct and separate class because on their different nature of engagement and qualification. Learned Additional Chief Standing Counsel had also proceeded to submits that even if the petitioners have been provided regular pay -scale by the Department they will not be entitled for same dearness allowances which is being paid to regular employees on account of fact that payment of regular pay -scale in violation of Government order or provision contained in Financial Handbook will not create any statutory right to claim same dearness allowance which is being paid to regular employees. Leaned Standing Counsel submits that evaluation of job for the purpose of payment of pay scale including the dearness allowances must be left open for expert bodies or the concerned limb of the Government and Court should not interfere with such matters. Additional Chief Standing Counsel has relied upon the judgments reported in; AIR 1997 SC 693, State of Rajasthan v. Kunji Raman; 1997 (1) LBESR 479 (SC) : (1996) 11 SCC 77, State of Haryana & Ors. v. Jasmer Singh & Ors. ; 1997 (2) LBESR150 (SC) : AIR 1997 SC 2129; State of Haryana v. Surinder Kumar & Ors. ; (1990) 1 UPLBEC 596; Suresh Kumar Tewari & Ors. v. State of U. P. & Ors. ; 2003 (1) LBESR 993 (SC) : (2003) 1 SCC 250; State of Orissa & Ors. v. Balram Sahu & Ors. ; AIR 1987 SC 2342, Daily Rated Casual Labour Employee under PAT Department through Bhartiya Das Tar Mazdoor Manch v. UOI & Ors. ; 2001 (1) LBESR 1029 (SC) : (2001) 3 SCC 574, Gujarat Agriculture University v. Rathod Labhu Bechar & Ors. ; (1998) 8 SCC 473, Raj Narain Prasad & Ors. v. State of U. P. & Ors. ; (2004) 6 SCC 661, P. M. Bhargava & Ors. v. University Grant Commission & Ors. ; (2003) 4 SCC 59, Jugal Chandra Saikia v. State of U. P. , M. P. & Ors. ; AIR 2000 SC 1005; India Thermal Powers Ltd. v. State of M. P. & Ors. , (1988) 2 SCC 115, Dr. Shivarao Shantaram Wagle & Ors. v. UOI & Ors. , (1979) 4 SCC 440, Jaswant Singh & Ors. v. Union of India & Ors. ; AIR 1993 SC 2422. Federation of Directly Appointed Officers of Indian Railway & Ors. v. Union of India & Ors. ; AIR 1986 SC 1929, M/s. K. N. Oil Industries & Anr. v. State of M. P. & Ors. , AIR 2003 SC 3349 Shiromani Gurdwars Prabandhak Committee v. Mahant Harnam Singh & Ors. ; AIR 2000 SC 622, Maharashtra Vikrikar Karmchari Sangathan v. State of Maharashtra & Anr. ; AIR 2004 SC 2449, Union of India & Anr. v. Manu Dev Arya; (1991) 7 SCC 256, Joint Action Council of Service Doctor's Organizations & Ors. v. Union of India & Ors. ; AIR 1996 S. C. 2173; State of U. P. & Ors. v. Harish Chandra & Ors. ; (2001) 4 SCC 309, Union of India & Ors. v. Rakesh Kumar, (1997) 3 SCC 11; State of Haryana & Ors. v. Ram Kumar Mann; (1976) 4 SCC 543; G. Mauniyappa Naidu v. State of Karnataka & Ors. ; (2004) 1 UPLBEC 112, Upendra Kumar Saxena & Ors. v. State of U. P. & Ors. . HISTORY OF DEARNESS ALLOWANCe Next to basic wage Dearness Allowance is one of the most important element in the fixation of pay structure of employees, the concept of dearness allowance was introduced during second world war to meet out the increases in the cost of living caused by inflation. It was either linked to the cost of price index or was given by way of flat increases. The Dearness Allowance was designed to combat inflation and protect the actual wages of the workmen or employees. Thus the purpose of Dearness Allowances was for cent percent neutralization of price hike. The national commission of Labour in 1969 recommended 95 neutralization for minimum wages earners. The expedient of giving Dearness Allowances has been invented in order to mitigate the rigours of higher cost of living beyond a certain stage for the simple reason that emoluments of public servants arc generally fabricated on the basis of certain stabilised price structure. The Second Central Pay Commission in its report laid down the principle underlying the grant of dearness allowances in the following words: "a dearness allowances is device to project to a grater or lesser extent the real income of the wage earners and salaried employees from the affect of rise in price and the distinction we have made in the preceding paragraph is based on the consideration that employees in the lower pay ranges in particular would suffer serious hardship without such protection while those drawing higher salaries may not. But even among with lower paid employees there is a graduation not all of them require the same degree of protection. " According to report of U. P. Pay Rationalisation Committee (1964 -65) the Dearness Allowance can have justification only so long as prices which break from their moorings and spiral up are in such a state, as the temporary phase, but when price changes their moorings permanently and get pegged at higher point without any reasonable chance of coming down again then in such a case the resort to the expedience of (Dearness Allowance) would be inappropriate for in such a state of the economy a wholesale revision of pay structure is called for. It is not always easy to say whether price rise index in the economy is going to be permanent or not unless it is an obvious passing phase. It has, therefore, been practiced the continuance of expedience of Dearness Allowance for a long period as was possible. In the State of U. P. for the first time compensatory allowances on account of higher price of food prices in Districts like Dehradun, Nainital, Almora and Garhwal was paid to the employees. However, after the first world war in 1919 Mr. C. A. Silberrad and C. H. B. Kendell made certain proposals for "high price allowance" on a sliding scale, designed to allow for the difference between the then prevailing prices and the normal price level. The proposed "high prices allowance" was incorporated in the pay structure itself to the extent it was considered necessary. As discussed above the payment of "dearness Allowance" had originated after second world war. In pursuance to report of U. P. Pay Committee 1947 the Dearness Allowance was restricted up to Rs. 200/ - only subject to marginal adjustment. However, gradually Dearness Allowance has been decided on sliding scale falling the price index. Hon'ble Supreme Court in the cases reported in AIR 1963 SC 1332, Hindustan Times Ltd. v. Their Workmen, held that Dearness Allowance should not remain fixed but should be on sliding scale. The whole purpose of Dearness Allowance is to neutralise a portion of increase in cost of living. The Apex Court had relied upon its earlier judgment reported in 1961 (2) LLJ 352. Relevant portion from the case of Hindustan Times Ltd. (supra) is reproduced as under: ". . . . . . . . . . . should be fixed as the Dearness Allowance. It is, in our opinion proper and desirable that the Dearness Allowance should not remain fixed at this figure but should be on a sliding scale. As was pointed out in Workmen of Hindustan Motors v. Hindustan Motors v. Hindustan Motors, 1961 (2) Lab LJ 352 (SC), the whole purpose of dearness allowance being to neutralise as portion of the increase in the cost of living, it should ordinarily be on a sliding scale and provide for an increase on rise in the cost of living and a decrease on a fall in the cost of living. " In one another case reported in AIR 1980 SC 31, C. V. K. U. Sahakari Mandi v. G. S. Barot, Hon'ble Supreme Court held that the purpose of grant of Dearness Allowance is to neutralise the increase in the cost of living due to rise in price. For convenience paras 9 and 10 of the C. V. K. U. Sahakari Mandi (supra) is reproduces as under: "the law is thus clear that dearness allowance is intended to neutralise a portion of the increase in the cost of living. Though 100 per cent neutralization is not advisable as it will lead to inflation, full neutralization may be permissible only in the case of the lowest class of employees. The management is entitled to complain if the neutralization is more than 100 per cent. (10) The purpose of grant of dearness allowance is to neutralise the increase in the cost of living due to rise in prices. Neutralization may be such as to neutralise fully the increase in cost of living or may be restricted to neutralise only portion of the increase. Full or cent per cent neutralization can be achieved if the increase in the cost of living is fully compensated so that the pay of the worker is not adversely affected. But an award of more than 100 per cent of an increase in the cost of living would be more than neutralization and would be in effect give the worker an increased wage. The result would be the worker would be getting an increased wage packet whenever there is a price rise a result which would not have been envisages in making provision for grant of dearness allowance. " CONSUMER PRICE INDEx;