NISSAR ALI MIR Vs. STATE

JUDGEMENT

(1.) CONTROVERSY in this writ petition apparently is simple but interesting Petitioners 1 and 2 are working in the Government press as Compositors and petitioner No: 3 in working as a sweeper in the Chest -Diseases Hospital, Srinagar Vide Govt. Order dated 4 -3 -1975 certain employees of the State were treated as having attached risk allowance equal to 10% of their pay subject to certain conditions in accordance with Act. 41 -C of the Civil Service Regulations The petitioners belong to class of employees who are mentioned in this order Pay scales were revised by the State Govt. on the recommendations of the third pay commission and the risk allowance with effect from 1 -4 -1982 was allowed to be drawn at the rate of 6% of basic pay in the revised scale, as against 10% in the pre -revised pay scales. In case the amount due at 6% of basic pay works out to be lesser than the amount already drawn on 31 -3 -1982 by an employee on this account, the amount already drawn shall be protected till it is advantageous to him to draw that amount. From 1 -1 -1982 to 31 -3 -1982 the amount of risk allowance as drawn in pre -revised scales shall not be recalculated. It was also provided that such of the employees who have opted for pre -revised pay scales shall, however continue to draw the allowance at 10% of pay in old scles. This order is impugned in this writ petition. The contention is that the employees who were held to be entitled to draw risk allowance were exposed to hazards and their nature of duty was peculiar. Therefore, it should not have been reduced. This contention is primarily based on Art. 42 of the Constitution of India, Chapter IV of the Constitution deals with directive principles of State Policy. Among other things state has to make provision for securing just and humane conditions of work and for maternity relief.

(2.) THE risk allowance is stated to have been paid to the various types of employees to enable them to secure just and humane conditions of work. By virtue of their nature of jobs these employees are said to be exposed to various types of hazards affecting their health and living conditions and therefore a permanent provision was made in the Civil Service Regulations for payment of risk allowance which was fixed by the State at 10% of the basic pay. The submission is that payment of risk allowance has got to be ordered after determination of the same. The impugned order does not say as to what is the criteria for fixing it at the rate of 6%, Therefore it is contended that the risk allowance has been fixed without determination Art. 41 -C of the Civil Service Regulations reads as under : "41 -C The Risk Allowance shall be granted at such rates for such categories of employees as may be determined by the Govt. from time to time. The allowance shall not be drawn during : - (a) any kind of leave except casual leave/special casual leave ; (b) the period of suspension. (c) the period of deputation or trainings sponsored by the Govt. or otherwise which may be treated as duty, (d) the period of tour outside the headquarter, the Head of the institutions where the concerned employees entitled to the allowance work will certify on their monthly establishment/ Salary bills that the concerned in whose favour the allowance is drawn were working on the posts to which the allowance is attached."

(3.) THIS Articles was inserted in the Civil Service Regulations on 26 -4 -1973 vide SRO No: 189. The risk allowance was net to be drawn during leave, except casual leave/special casual leave, during period of suspension or deputation or trainings sponsored by the Government or during the period of tour etc.