FREEZING
OF DA/DR BY GOI IS IN ORDER - DELHI HIGH
COURT RULING
IN
THE HIGH COURT OF DELHI AT NEW DELHI
W.P.(C)
3308/2020
HITESH BHARDWAJ
..... Petitioner versus
MINISTRY OF
FINANCE, UNION OF INDIA AND ANR ..... Respondent
CORAM : HON'BLE
MR. JUSTICE VIPIN SANGHI & HON'BLE
MR. JUSTICE RAJNISH BHATNAGAR
O
R D E R (01.06.2020)
The present writ
petition has been preferred in public interest seeking following reliefs:
“a) Issue a Writ
of Mandamus or any other appropriate Writ, order or direction to the
Respondents to withdraw the notification issued by the Ministry of Finance,
Government of India
b) Issue a Writ
of Mandamus or any other appropriate Writ, order or direction to the
Respondents to withdraw the endorsement against the notification, issued by the
Ministry of Finance, Government of NCT of Delhi.
c) Issue a Writ
of Mandamus or any other appropriate Writ, order or direction to the
Respondents to defreeze and release the enhanced Dearness Allowance to the
Central Government Servants and pensioners as per norms.
d) Issue a Writ
of Mandamus or any other appropriate Writ, order or direction to the
Respondents to defreeze and release the enhanced Dearness Allowance to the
Government Servants and pensioners of GNCTD as per norms.” The respondent no.
1/Union of India issued an Office Memorandum dated 23.04.2020 which is the
cause for the petitioner’s grievance in the present writ petition. The said
Office Memorandum reads as follows:
“
No.1/1/2020-E-II(B)
Government
of India, Ministry of Finance, Department of Expenditure
North
Block, New Delhi, Dated the 23rd April, 2020.
OFFICE
MEMORANDUM
Subject:
Freezing of Dearness Allowance to Central Government employees and Dearness
Relief to Central Government pensioners at current rates till July 2021.
The undersigned is directed to say that
in view of the crisis arising out of COVID-19, it has been decided that the
additional instalment of Dearness Allowance payable to Central Government
employees and Dearness Relief to Central Government pensioners, due from 1st
January 2020 shall not be paid. The additional instalments of Dearness
Allowance and Dearness Relief due from 1st July 2020 and 1st January 2021 shall
also not be paid. However, Dearness Allowance and Dearness Relief at current
rates will continue to be paid.
2. As and when
the decision to release the future instalment of Dearness Allowance and
Dearness Relief due from 1st July 2021 is taken by the Government, the rates of
Dearness Allowance and Dearness Relief as effective from 1st January 2020, 1st
July 2020 and 1st January 2021 will be restored
prospectively and will be subsumed in the cumulative revised rate effective
from 1st July 2021. No arrears for the period from 1st January 2020 till 30th
June 2021 shall be paid.
3. These orders
shall be applicable to all Central Government employees and Central Government
pensioners.
Sd/-
(Annie George Mathew)
Additional
Secretary to the Government of India.”
The petitioner is also
aggrieved by the consequent order issued by respondent no. 2/GNCTD dated
24.04.2020, whereby the GNCTD has followed suit in terms of the Office
Memorandum dated 23.04.2020 issued by respondent no. 1. The Office Memorandum
dated 23.04.2020, in effect, conveys the decision of the Central Government
that Dearness Allowance due to the
Central Government Employees and Dearness Relief due to the Central Government
Pensioners from 01.01.2020 shall not be paid. It also states that additional
installment of the Dearness Allowance and Dearness Relief due from 01.07.2020
and 01.01.2021 shall also not be paid. Pertinently, Dearness Allowance and
Dearness Relief at the current rates would continue to be paid. The said Office
Memorandum further states that as and when the decision to release future
installment of Dearness Allowance and Dearness Relief due from 01.07.2021 is
taken by the Government, rates of the Dearness Allowance and Dearness Relief as
effective from 01.01.2020, 01.07.2020 and 01.07.2021 will be restored prospectively,
and will be subsumed in the cumulative revised rate effective from 01.07.2020.
No arrears from the period 01.01.2020 till 30.06.2021 shall be paid.
The first submission of the petitioner is
that Central Government Employees and Central Government Pensioners have a
vested right to receive the enhanced Dearness Allowance/ Dearness Relief which
has already been declared effective from 01.01.2020. The said increase was declared
at 4%. The petitioner also claims that such employees and pensioners also have
vested right to continue to receive enhancement in Dearness Allowance/ Dearness
Relief on and from 01.07.2020 and 01.01.2021.
To examine the merit of this submission,
we may refer to the All India Services (Dearness Allowance) Rules, 1972. These
statutory rules have been framed by the Central Government after consultation
with the Government of the States concerned in exercise of powers conferred by
SubSection (1) of Section 3 of All India Services Act,1952. Rule 3 of the said Rule
is relevant and which reads as follows:
“3. Regulation
of dearness allowance: Every member of the Service and every officer, whose
initial pay is fixed in accordance with sub-rule (5) or sub-rule (6A) of rule 4
of the Indian Administrative Service (Pay) Rules, 1954 or sub-rule (5) of rule
4 of the Indian Police Service (Pay) Rules, 1954 or sub-rule (6) of rule 4 of
the Indian Forest Service (Pay) Rules, 1968, shall be entitled to draw dearness
allowance at such rates, and subject to such conditions, as may be specified by the Central Government, from time to time,
in respect of the officers of Central Civil Services, Class I.” (emphasis supplied)
From the above Rule, it would be seen
that Central Government servants shall be entitled to draw Dearness Allowance
“at such rates, and subject to such conditions, as may be specified by the
Central Government, from time to time, in respect of officers of the Central
Civil Service, ClassI”. We may notice that there is no other statutory rule
brought to our notice relating to payment of Dearness Allowance or Dearness
Relief and it appears that the said Rule governs the payment of Dearness
Allowance and Dearness Relief to Government servants and Government Pensioners
of the Union in respect of all the classes of employees.
The above rule shows that the entitlement to
draw Dearness Allowance and Dearness Relief is determined by the Central
Government. The same may be specified by the Central Government from time to
time, subject to whatever conditions the Government may deem fit to impose.
From the above Rule, it is clear to us
that, firstly, there is no statutory rule which obliges the Central Government
to continue to enhance the Dearness Allowance or Dearness Relief at regular
intervals i.e. to revise the same upwards from time to time. Consequently,
there is no vested right in the Central Government Employees, or Central
Government Pensioners to receive higher Dearness Allowance or Dearness Relief
on regular intervals.
Pertinently, by the impugned Office
Memorandum, the Central Government has frozen – and not withdrawn, the Dearness
Allowance and Dearness Relief being paid to Central Government Employees and
Central Government Pensioners at the time of issuance of the said Office Memorandum.
So far as the submission with regard
to increase of 4% Dearness Allowance or Dearness Relief with effect from
01.01.2020 is concerned, the impugned Office Memorandum does not seek to take
it away. All that it does is to postpone its payment till after 01.07.2021.
That power, in our view, resides with the Central Government, by virtue of Rule
3 of the All India Services (Dearness Allowance) Rule, 1972, since the Central
Government is
empowered to take the decision to make payment of Dearness Allowance/Dearness
Relief, subject to such conditions as the Central Government may specify from
time to time.
The submission of learned counsel for
the petitioner is that the Central Government in the impugned Office Memorandum
has referred to COVID19 pandemic as the reason for its decision contained in
the said Office Memorandum. However, the impugned Office Memorandum has not
been issued by the competent authority under the Disaster Management Act. We do
not find merit in this submission. The provisions of the Disaster Management
Act are not the only repository of the power of the Government to take action
in the light of the pandemic. As noticed above, the power to determine as to
how much Dearness Allowance is to be paid, i.e. at what rates, and subject to
what condition, resides with the Central Government by virtue of Rule 3 of All
India Services (Dearness Allowance) Rules, 1972. Merely because the said
impugned Office Memorandum makes reference to the COVID-19 pandemic, it does
not follow that the only provision which the respondents could have invoked are
those contained in the Disaster Management Act. The Central Government, by
referring to COVID-19 pandemic in the impugned communication, has merely
provided its reasons and justification for its decision contained in the said
Office Memorandum.
The next submission of the learned
counsel for the petitioner is that the impugned Office Memorandum is also in
violation of Article 360(4)(a)(i) of the Constitution of India. Article 360 of
the Constitution of India contains the provision as to financial emergency, and
it provides that if the President is satisfied that a situation has arisen
whereby the financial stability of credit in India or any part of the territory
thereof is threatened, he
may, by a
proclamation make declaration to that effect. The submission is that President
of India has not declared financial emergency. The further submission is that
it is only during financial emergency declared by the President, that by virtue
of Sub-Article 4(a)(i) – a provision could be made requiring reduction of
salaries and allowances of all or any class of persons serving in connection
with the affairs of the State. Since no financial emergency has been declared, the
Office Memorandum in question could not have been issued which is referable to
Article 360(4)(a)(i) of the Constitution of India.
We find this submission to be
completely misplaced. This is for the reason that Article 360(4)(a)(i) deals
with a situation where the Government seeks to reduce the salary or allowance
of all, or any class of persons,
serving in
connection with the affairs of the State. In the present case, the Office
Memorandum does not seek to reduce either the salaries or allowances, which
includes Dearness Allowance and Dearness Relief in respect of serving
Government servants, or its pensioners. All that it does is to freeze the
payment of Dearness Allowance and Dearness Relief at the pre-existing level,
and to put in abeyance any increase in Dearness Allowance and Dearness Relief
till July, 2021. The said freeze does not tantamount to reduction of either
salary, or allowances, of persons serving in connection with the affairs of the
State.
The further submission of learned counsel
for the petitioner is that the Office Memorandum could not have been issued by mere
issuance of an office order, and the same should have been either framed as a
statutory rule, or by issuing a gazette notification. We do not find any basis
for this submission. We have noticed Rule 3 of the All India Services (Dearness
Allowance) Rules, 1972. The said Rule does not state that the Central
Government can form, or communicate, its decision with regard to entitlement to draw Dearness
Allowance, subject to conditions, only by framing another rule, or by a gazette
notification. There is no such requirement in law. Therefore, we do not find
any merits in this submission as well.
So far as the right to receive the
increase of Dearness Allowance/ Dearness Relief already declared by the
Government with effect from 01.01.2020 is concerned, it falls well within the
domain of the Central Government to decide as to when to disburse the said
increase. There is no obligation in law upon the Central Government to disburse
the increase in Dearness Allowance/ Dearness Relief within a time bound manner.
Rule 3 of All India Services (Dearness Allowance) Rules referred to above,
itself empowers the Central Government to lay down the conditions subject to which
Dearness Allowance may be drawn by officers of Central Government.
For the aforesaid reasons we do not
find any merit in this petition and the same is, accordingly, dismissed.
VIPIN
SANGHI, J & RAJNISH BHATNAGAR, J
