Delhi High Court has dismissed a plea challenging the order of the Central as well as the Delhi Government to freeze the disbursement of enhanced Dearness Allowance to government employees and pensioners, reported LiveLaw.in.
The Division Bench of Justice Vipin Sanghi and Justice Rajnish Bhatnagar noted that there’s no obligation in law upon the Central Government to disburse the increase in Dearness Allowance/ Dearness Relief within a time bound manner.
The court further observed that Rule 3 of All India Services (Dearness Allowance) Rules itself empowers the Central Government to lay down the conditions subject to which Dearness Allowance may be drawn by officers of Central Government.
The order has come in a PIL seeking a direction to be issued to the Finance Ministry of both the Centre and the Delhi Government to withdraw the notifications regarding freezing of enhanced Dearness Allowance of government employees and release the same as per norms.
The disputed Office Memorandum (OM) of the Central Government notifies that the 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.
However, it is stated in the said OM 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.
The petitioner had made the following arguments before the court:
a. Central government employees and Central government pensioners have a vested right to receive the enhanced Dearness Allowance/ Dearness Relief under the All India Services (Dearness Allowance) Rules, 1972.
b. Despite citing COVID19 pandemic as a reason for freezing the DA, the said order has not been passed by the competent authority under the Disaster Management Act
c. It is only during financial emergency declared by the President under Article 360 of the Constitution, 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
Observations of the court
The court observed that the DA Rules of 1972 show 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.
The court further highlighted that 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. Moreover, 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.
The court said: '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.'
On the issue of authority to issue the said OM, the court noted that merely because the disputed OM makes reference to the COVID19 pandemic, it does not follow that the only provision which the respondents could have invoked are those contained in the Disaster Management Act.
Rejecting the argument of the petitioner on Article 360 of the Constitution, the court reiterated that the OM does not tantamount to reduction of either salary, or allowances, of persons serving in connection with the affairs of the State.
The court observed that: '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.'