SHIV BODHAN Vs. STATE OF U P

JUDGEMENT

(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:

(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