HIGH COURT OF UTTARANCHAL AT NAINITAL (Court’s order whether the case is or not approved for reporting.) (Chapter VIII Rule 32 (2)(b) Description of the case. WPSS No. 155/2005 Keshan Bahadur Adhikari Vs State of Uttaranchal Through its Secretary Approved for reporting. __________________ Not approved for reporting Date of decision 31.3.2006 Initial of Judge 2 HIGH COURT OF UTTARANCHAL AT NAINITAL Writ Petition no. 155 of 2005 (SS) 1. Keshan Bahadur Adhikari S/O Nagar Bahadur Adhikari R/o Village Koteshwar Colony P.O. Sweet Pool Sri Nagar Pauri Garhwal, presently poste d as senior driller in Nalkoop Khand, Ballupur Dehrad un, Sub Division. Kotwdar. Garhwal. 2. Bharat Singh S/O Hukum Singh R/O Village and Post Office-Potti Distt. Uttarakashi, presently posted helper in Nalkoop Khand, Ballupur, Dehradun, Sub Div ision, Irrigation Srinagar, Garhwal. ….Petitioners Versus 1. State of Uttaranchal Through its Secretary. Departyment of Irrigation Civil Secretariat, Dehradun. 2. The Chief Engineer and Head of Department [Karmik], Uttaranchal Irrigation Department, Irrigation Bhawan, Dehradun. 3. The Chief Engineer, Gamga Ghati, Irrigation Department, Dehradun, Uttaranchal. 4. The Finance Secretary, Finance Department, Secretariat Dehradun, Uttaranchal. 5. The Executive Engineer, Nalkoop Khand, Dehradun, Uttaranchal. 6. The Adhikshan Abhiyanta, Irrigation, Nirman Khand, Mandal Dehradun, Uttaranchal … Respondents Writ Petition No. 1152 of 2003 (S/S) 1. Gopal Singh Gusain S/O Sro Keshav Singh Gusain, serving as Gauge Reader Yamuna Nirman Khand-1, Dehradun. 2. Keshav Datt Son of Sri Baldev Parsad, serving as Pump Operator Yamuna Nirman Khand-1, Dehradun. 3. Gopal Singh Son of Sri Bir Singh, serving as Assistant Baira Yamuna Nirman Khand-1, Dehradun. 3 4. Agnu Ram Son of Sri Bhukhal, serving as Beldar Civil Construction Division-1 Dhalipur, Dehradun. 5. Ram Naresh Son of Sri Bhukhal, serving as Beldar Civil Construction Dilvision-1 Dhalipur, Dehradun. 6. Waheed Son of Sri Rashi Ahmad Shah, serving as Driver Yamuna Nirman Khand-1, Dehradun. 7. Krishna Kumar Son of Sri Ram Swarup, serving as Beldar Yamuna irman Khand-1, Dehradun. 8. Bimlesh Rao Son of Sri Dandasi, serving as Beldar amuna Nirman Khand-1,Dehradun Anand Rao Son of Sri Koiriya Rao, serving as Beldar Yamuna irman Khand-1, Dehradun. 9. Anand Rao Son of Sri Doiriya Rao, serving as Beldar yamuna Nirman Khand-1, Dehradun. 10. Shakil Son of Sri Bashir, serving as Chaukindar Yamuna Nirman Khand-1, Dehradun. 11. Lok Bahadur Son of Sri Bhakt Bahadur, servidng as Helper Yamuna Nirman Khand-1, Dehradun. 12. Kishan Chand Son of Sri Budhhumal, serving as Peon amuna Nirman Khan d-1, Dehradun. 13.Ram Singh Son of Sri Bakhtawar Singh Negi, serving as Helper Yamuna Nirman Khand-1, Dehradun. 14.Vijendra Kumar Son of Late Sri Ganga Ram sre4ving as Beldar Yamuna Nirman Khand-1, Dehradun. 15. Hriday Ram Son of late Sri Beni Ram, serving as Beldar Yamuna Nirman Khand-1, Dehradun. ….Petitioners. Versus 1. State of Uttaranchal through Secretary Department of Lrrigation, Uttaranchal Shasan Dehradun. 2. Chief Engineer/Head of Department Irrigation Uttaranchal, Yamuna Colony, Dehradun. 3. Executive Engineer Yamuna Nirman Khand-1 Yamuna Colony, Dehradun 4. Executive Engineer Civil Nirman. NKhand-1 Dhalipur, Dehradun Respondents 4 Writ petition no.36/2003 (S/S) Ramesh Chandra S/o Sh. Ram Prakash R/o Canal Colony, Gadarpur, District-Udham Singh Nagar. Versus 1. State of Uttaranchal service through secretary, Department of Irrigation, Civil Secdretariat, Dehradun. 2. The Chief Engineer, Uttaranchal Irrigation Department Irrigation Bahawabn,Dehradun. 3. Chief Engineer, North Irritatyion Department, Udttaranchal, Haldwani, Nainital. 4. Superintending Engineer, Irrigation Work Circle, Nainigal. 5. Executive Engineer, Irrigation Division, Rudrapur, Udham Singh Nagar. ….. Respondents. WRIT PETITION NO 456 OF 2005 (S/S) 1- Kamal Singh S/O Dungar Singh Presently Posted as Rolar Cleaner Construction Division, Ranikhet Distdrict Almora. 2- Suresh Chandra Mainalli s/o Ganga Dutt Mainali Presently Posted as Mate National Highway E-87, Public works Department, Ranikhet, District Almora 3- Ram Dutt s/o Jeewa Nand Presently Posted as Beldar National Highway E-87, Public works Department, Ranikhet, District Almora 4-Durga Dutt s/o Umakant Presently Posted as Beldar National Highway E- 87, Public works Department, Ranikhet, District Almora 5- Krishnanand s/o umakant Presently Posted as Beldar National Highway E-87, Public Works Department, Ranikhet, District Almora 5 6- Shankar Dutt s/o Chintamani Presently Posted as Beldar National Highway E-87, Public Works Departmen, anikhet, District Almora 7- Soban Singh s/o Aan Singh Presently Posted as Mate National Highway E-87, Public Works Department, Ranikhet, Districxt Almora 8- Khushal Singh s/o Harak Singh Preksently posted as Beldar, Public Works Department, Ran8ikhet, District Almora. 9- Pramod Shah, s/o Kishori Lal Sah resently posted as Beldar, Dwarahat Engineering Road, Public Works Department, Ranikhet, District Almora. 10-Heera Singh Kaira s/o Diwan Singh Kaira Presently posted as Beldar, Dwarahat Binta Motor Marg, Public Works Department, Ranikhet, District Almora. 11. Prem Singh s/o (Gaja Singh) resently posted as Beldar, Dwarahat Binta Motor Marg, Public Works Department, Ranikhet, District Almora. 12. Amba Dutt s/o Bhawani Dutt Presently posted as Beldar, Ganaj Jorashi otor Marg, Public Works Department, Ranikhet, District Almora. 13.Hari Singh s/o Pratap Singh Presently posted as Beldar, Ganai Jorashi Motor Marg, public Works Department, Ranikhet, District Almora. 14 Bhim Singh s/o Trilock Singh Presently posted as Beldar, Mashi Gairkhet Motor arg, Public Works Department, Ranikhet, District Almora. 15- Balam Singh s/o Harak Singh Presently posted as Beldar, Ranikhet Store, Public Works Department, Ranikhet, District Almora. 16- Gopal Dutt s/o Hari Dutt Presently posted as Beldar, Ranikhet Ramnagar Motor Marg, public Works Deparetment, Ranikhet, District Almora. 17- Hair Ram S/o Chami Ram 6 Presently posted as Beldar, Devlikhet Tyherakhal Motor Marg, public Works Department, Ranikhet, District Almora. 18 Mohan Singh Bisht s/o Khusal Singh Presently posted as Beldar, Devlikhet Therakhal Motor Marg, Public Works Department, Ranikhet, District Almora. 19. Sagat Singh S/o Keshar Singh Presently posted as Mate Tarikhet Pipali Motor Marg, public Works Department, Ranikhet, District Almora. 20. Nandan Singh S/o Heera Singh Presently posted as Beldar, Public Works Department, Ranikhet, District Almora. 21. Gopal Singh S/o Dungar Singh Presently posted as Beldar, Khairna Ranikhet Motor Marg, Public Works Department, Ranikhet, District Almora. 22. Kishan Singh S/o Vijay Singh Presently posted as Beldar, Khairna Ranikhet Motor Marg, public Work Department, Ranikhet, District Almora. 23. Dharam Singh S/o Lacham Singh Presently posted as Beldar, Khairna Ranikhet Motor Marg, Public Work Department, Ranikhet, District Almora. 24. Davender S/o Rewadha Presently posted as Beldar, Ranikhet Jalli MashiMotor Marg, Public Work Department, Ranikhet, District Almora. 25. Khushal Singh S/o Salip Singh Presently posted as Mate, National Highway E-87, Public Work Department, Ranikhet, District Almora. 26. Ishwari Sharan, S/o Chintamani. Presently posted as Beldar, Godhi Rawara Motor Marg, Public Work Department, Ranikhet, District Almora. 7 27- Bache Singh son of Sri Nar Singh, Beldar Dodi Rawara Motor Marg. P.W.D. Ranikhet 28. Gopal Singh s/o Mohan Singh, Beldar, Godhi Rawara Motor Marg P.W.D. Ranikhet. 29. Ramesh Chandra s/o Bhawani Dutt, Beldar Bhatroj Khan Gani Motor Marg, Ranikhet. 30. Manohar Dutt s/o Jay Dutt Mate, Ganai Jorashi Motor Marg ,P.W.D. Ranikhet. 31. Dan Singh s/o Sri Chandan Singh, mate Mashi Gairkhet Motor Marg P.W.D. Ranikhet. 32. Ratan Singh s/o Bache Singh, Beldar, Mashi Gairkhet Motor Marg P.W.D. Ranikhet. 33. Bhim Sing s/o Sri Nar Singh Beldar, Mashi Gairkhet Motor Marg P.W.D. Ranikhet. 34. Bache Singh s/o Dungar Singh, Beldar Mashi Gairkhet Motor Marg P.W.D. Ranikhet. 35. Jwala Dutt s/o Lokmani, Beldar, G.T.B. Motor Road P.W.D. Ranikhet. 36. Anand Singh s/o Nandan Singh, P.W.D. Ranikhet 37. Devi Dutt s/o Nityanand Mashi Gairkhet Motor Marg P.W.D. Ranikhet. 38. Bhuwan Chandra w/o Mathura Dutt, Beldar Ranikhet Jallsi Mashi motor road, P.W.D. Ranikhet. 39. Khim Singh s/o Lacham Singh, Beldar, Bhatroj Khan Ganj Motor road P.W.D. Ranikhet. 40. Umed Singh s/o Narayan Singh, Mate, Rachi Billekh Bhujan, Motor Marg Ranikhet. 41. Daulat Singhs/o Padam Singh, Beldar, Rachi Billekh Bhujan Road, P.W.D. Ranikhet. 42. Bahadur Singh s/o Heera Singh Beldar Ranikhet Jalsi Mashi Motor road, P.W.D. Ranikhet. 43. Pan Singh s/o Tika Singh, Beldar, Ranikhet Jalsi Mashi Motor Road, P.W.D. Ranikhet. 44. Harish Chandra s/o Prem Ram, Truck Cleaner P.W.D. Ranikhet. 45. Jiwan Singh s/o Tika Singh, Truck Cleaner, P.W.D. Ranikhet. 46. Mathura Dutt s/o Sri Hari Dutt, beldar Ranikhet Store,P.W.D. Ranikhet. 47. Lal Singh s/o Narayan Singh, Beldar, Kafara Chabbisa Motor Road, P.W.D. Ranikhet. 48. Smt. Ganga Devi w/o Lal Singh, Beldar, P.W.D. Ranikhet, Almora 8 49. Anand Singh s/o Sri Ram Singh, Mate P.W.D. Ranikhet District Almora. Versus 1. State of Uttaranchal 2. Engineer-in-Chief, P.W.D. Dehradun 3. Superintending Engineer, 43rd Circle, P.W.D. Almora 4. Executive Engineer, Construction Division, P.W.D. Ranikhet …. Respondents Dated: 31.3.2006 Hon. Rajesh Tandon, J. Heard the learned counsel for the parties at length. As a common question of fact and law involved in all the writ petitions, hence they are being decided together. By the present writ petition the petitioners have prayed for the issue of a writ, order or direction in the nature of Mandamus directing the respondents not to impose ceiling on dearness allowance payable to the petitioners. Briefly stated the petitioners are work charge employees of Public Works Department. The Government vide order dated 26.8.99 imposed ceiling on dearness allowance payable to the petitioners. Relevant paragraph of the said G.O. is quoted below: fuEu izdkj iquZjhf{kr fd;s tkus dh Jh jkT;iky egksn; lg"kZ LohÑfr iznku djrs gSaA 9 Dza0 iwoZorhZ osrueku lagr osrueku dh vf/kdre LaLrqr iquZjhf{kr osrueku lagr osrueku dh vf/kdre vf/kdkfj;ksa ds inuke ftuds }kjk fu/kkZj.k fd;k tk;sxk 1 2 3 4 5 6 1- 750&940 1700 2550&55&2660&60&3200 3200 v0 vfHk0 2- 775&1025 1700 2610&60&3150&65&3540 3540 vf/k0vfHk0 3- 825&1200 2200 2750&70&3900&75&4400 4400 vf/k0 vfHk0 4- 950&1500 2200 3050&75&3950&80&4590 4590 vf/k0 vfHk0 5- 975&1600 2500 3200&95&4900 4900 eq0vfHk0Lrj 6- 1200&2400 2500 4000&125&7000 6000 eq0vfHk0Lrj 7- 1400&2300 2500 4500&125&7000 7000 eq0vfHk0Lrj 8- 1600&2660 3000 5000&150&8000 8000 eq0vfHk0Lrj Further by order dated 1.2.01 while granting dearness allowance the following ceiling was imposed: 'kk0 la0 5892@99&27&fla&7&88 22@91 fnukad 26-8-99 }kjk fu/kkZfjr lagr osru dh vf/kdre lhek ds vUrZxr gh dk;ZizHkkfjr deZpkfj;ksa dks osru lhfer j[kk tk;sxkA Similar ceiling was also imposed regarding payment of bonus to the work charge employees. Relevant paragraph of G.O. dated 1.3.2001 is quoted below: dk;ZizHkkfjr deZpkfj;ksa dks nSfud osru Hkksxh deZpkfj;ksa dh HkkWfr cksul vuqeU; gS vr% dk;ZizHkkfjr deZpkfj;ksa ds fy, ekfld ifjyfC/k;ksa 1200@& izfrekg ekuh tk;sxhA pkgs mudh okLrfod ifjyfC/k;kW tks Hkh gksa bu deZpkfj;ksa dks ns; cksul dh /kujkf”k #0 1200 30@30-4 vFkkZr #01181@ iw.kkZfdr gksxhA The petitioners have submitted that ceiling imposed as mentioned above is in contravention of Articles 14 and 21 of 10 Constitution of India and the same is liable to be declared as ultra virus to the Constitution of India. The Division Bench of this Court has passed order on 10.5.2002 in Writ Petition No. 392 (SB) of 2002 to the following effect: “Notice on behalf of the opposite parties has been accepted by the Chief Standing Counsel, who prays for and allowed four weeks time to file counter affidavit, list thereafter. In the mean time, the opposite parties shall make payment of salary to the petitioners from the current month ignoring the ceiling prescribed.” The purpose of dearness allowance is to neutralize increase in the costs of living due to rise in the price. Apex Court in the case of C.V.K.U. Sahakari Mandli vs. G.S. Barot, AIR 1980 SC 31, has defined the purpose of grant of dearness allowance. The observations are quoted below: The law thus clear that dearness allowance is intended to neutralise a portion of the increase in the cost of living. Though 100 per cent neutralisation is not advisable as it will lead to inflation, full neutralisation may be permissible only in the case of the lowest class of employees. The management is 11 entitled to complain if the neutralisation is more than 100 per cent. The dearness allowance cannot be clubbed with the pay. Pay is not a bounty but it is a right under Article 21 of the Constitution of India and it is also covered under Article 21 from the judgment of the Apex Court in the case Kapila Hingorani (supra). The petitioners’ counsel also drew the attention of the Court towards the Government Order dated 1.1.2000 issued by the State of U.P. by which restriction imposed with regard to ceiling on dearness allowance on the work charge employees have been withdrawn. The Government order reads as under: v/kksgLrk{kjh dks ;g dgus dk funsZ”k gqvk gS fd osru lfefr dh laLrqfr;ksa ij 'kklu }kjk le;d fopkjksijkUr ;g fu.kZ; fy;k x;k gS fd foRrh; fu;e laxzg [k.M &6 ds izLrj 667] 668 o 669 esa dk;ZizHkkfjr vf/k"Bku ls lEcfU/kr fu;qfDr dh O;oLFkk dks lekIr fd;k tk,A vr% jkT;iky egksn; foRrh; fu;e laxzg [k.M &6 ds mDr izLrj 667] 668 o 669 dh O;oLFkk dks rkRdkfyd izHkko ls lekIr fd;s tkus dh LohÑfr iznku djrs gSaA Clause 668 of Work- charged Establishment Condition of Employment reads as under: 668. In all cases previous sanction of the competent authority as laid down in Volume I of the Handbook or in the departmental manuals of orders is necessary which should 12 specify in respect of each appointment (1) the consolidated rate of pay (2) the period of sanction, and (3) the full name (as given in the estimate) of the work and the nature of the duties on which the person engaged would be employed.” The petitioner has also argued that there cannot be arbitrariness in the salary in as much as any curtailment of pay will amount to unequal treatment as held in the case of Kumari Shrilekha Vidyarthi etc. vs. State of U.P. & others AIR 1991 SC 537. The Apex Court has observed as under: “The preamble of the Constitution of India resolves to secure to all its citizens Justice, Social economic and political and Equality of status and opportunity. Every State action must be aimed at achieving this goal. Part IV of the Constitution contains ‘Directive Principles of State Policy’ which are fundamental in the governance of the country and are aimed at securing social and economic freedoms by appropriate State action which is complementary to individual fundamental rights guaranteed in Part III for protection against excess of State action, to realize the vision in the Preamble. This being the philosophy of the Constitution, can it be said that it contemplates exclusion of Art. 14 –non- arbitrariness which is basic rule lo law-from State actions in contractual field when all actions of the State are meant for public good and expected to be fair and just? We have no doubt that the Constitution does not envisage or permit unfairness or unreasonableness in State actions in any sphere of its activity contrary to the professed ideals in the Preamble. In our 13 opinion, it would be alien to the Constitutional Scheme to accept the argument of exclusion of Art.14 in contractual matters. The scope and permissible grounds of judicial review in such matters and the relief which may be available are different maters but that does not justify the view of its total exclusion. This is more so when the modern trend is also to examine the unreasonableness of a term in such contracts where the bargaining power is unequal so that these are not negotiated contracst but standard form contracts between unequal” Apex Court in the case Kapila Hingorani vs. State of Bihar 2003 (7) AIC 18 SC has held that right to get salary is a fundamental right and there cannot be any curtailment upon it. The Apex Court has held as under: “The right to development in the developing countries is itself a human right. The same has been made a part of WTO and GATT. In the World Trade Organization, Law, Practice, and Policy (Oxford) by Mathusushitaq Schoenbaum and Mauroidis at page 389, it is stated: The United Nations has proclaimed the existence of a human right to development. This right refers not only to economic growth but also to human welfare, including health, education, employment social security, and a wide-range of other human needs. This human right to development is vaguely defined as a so-called third- 14 generation human right that cannot be implemented in the same way as civil and political human rights. Rather, it is the obligation of states and intergovernmental organizations to work within the scope of their authority to combat popery and misery in disadvantaged countries. The matter may be considered from another angle. While the State expects the industrial houses and multi national companies to take such measures which would provide a decent file to the persons living in the society in general and to their employees in particular and in that premise it too much to ask the State to practice what it preaches? This gives rise to another question. Can the State be so insensitive to the plight of its own citizens in general and the employee of the public Sector undertakings in particular? The Court in a situation of this nature is obligated to issue necessary directions to mitigate the extreme hardship of the employees involving violation of human rights of the citizens of India at the hands of the State of Bihar and the government companies and corporations fully owner or controlled by it. A right to carry on business is subjects to compliance of constitutional obligations as also limitations provided for in the Constitution. 15 Financial stringency may not be a ground for not issuing requisite directions when a question of violation of fundamental right arises. This Court has been highlighting this aspect in the matters concerning fundamental right and maintenance of ecology. See Rural Litigation and Entitlement Kendra and others vs. State of Uttar Pradesh and others, AIR 1987 SC 359 Municiap Council Ratlam (1980)4 SCC 162 and B.L. Wadhera vs. Union of India AIR 1996 SC 2969. In All India Imam Organization and others vs. Union of India and others 1993 (3) SCC 584 this Court held: …..Much was argued on behalf of the Union and the Wakf Boards that their financial position was not such that they can meet the obligations of paying the Imams as they are being paid in the State of Punjab. It was also urged that the number of mosques is so large that it would entail heavy expenditure which the Boards of different States would have not be able to bear. We do not find any correlation between the two. Financial difficulties of the institution cannot be above fundamental right of a citizen. If the Boards have been entrusted with the responsibility of supervising and administering the wakf then it is their duty to harness resources to pay those persons who perform the most importent duty namely of 16 leading community prayer in a mosque the every purpose for which it is created. ……….. …………. …………… The States of India are welfare States. They having regard to the constitutional provisions adumbrated in the Constitution of India and in particular Part IV thereof laying down the Directive Principles of the State Policy and Part IVA laying down the Fundamental Duties are bound to preserve the practice to maintain the human dignity.” In the case Secretary, Haryana State Electricity Board vs. Suresh and others, 1999 (2) SLR 1, the Apex Court has held as under: “In this context reference to the Constitution Bench decision of this Court in Nakara’s case (D.s. Nakara and others vs. Union of India, AIR 1983 SC 130, seems to be rather apposite. This Court stated that democratic socialism aims to end poverty, ignorance, disease and inequality of opportunity. The primary impact of socialism as a matter of fact is to offer and provide security of life so that the citizens of the country may have two square meals a day, and maintenance of a minimum standard of life, it is expected, would lead to the abridgment of the gap between the have-s and have not-s. The feudal exploitation and Draconian concept of law ought not to 17 outweigh the basic structure of the Constitution, or its socialistic status. Ours is a socialist State as the Preamble depicts and the aim of socialism, therefore, ought to be to distribute the common richness and the wealth of the country in such a way so as to sub-serve the need and the requirement of the common man. Article3 39 is a pointer in that direction. Each clause under the Article specifically fixes certain social and economic goal so as to expand the horizon of benefits to be accrued to the general public at large. In particular reference to Article 39 (a) it is seen that the State ought to direct its policies in such manner so that the citizens men and women equally, have the right of an adequate means of livelihood and it is in this perspective again that the enactment in the statute book as noticed above (The Contract Labour (Regulation & Abolition) Act 1970) ought to be read and interpreted so that social and economic justice may be achieved and the constitutional directive be given a full pay.” A Division Bench of Uttaranchal High Court in the case State of Uttaranchal and others vs. Pushkar Bhatt and others, 2006(1) Uttaranchal Decision 587 has also held as under: “In view of the logic and concept for payment of dearness allowance as laid down by the Hon’ble Apex Court quoted 18 above, no ceiling limit can be fixed on the dearness allowance and since the Government has taken a decision to pay the dearness allowance to the work charge employees, then it cannot fix a ceiling limit thereon. Thus, the Government Order dated 26.8.1999 fixing the ceiling limit is contrary to the law laid down by the Hon’ble Apex Court which is law of the land under Article 141 of the Constitution of India and cannot be sustained.” In view of the above, a writ of mandamus is issued quashing the order-dated 26.8.1999. The respondents are directed to pay salary to the petitioners ignoring the ceiling prescribed. All writ petitions are accordingly allowed. There will be no order as to costs. Dated: 31.3.2006 Rajesh Tandon, J. *Dhyani