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Judgment
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 ChestDiseases Hospital, Srinagar Vide Govt. Order dated 431975 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. 41C 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 recommandations of the third pay cammission and the risk allowance with effect from 141982 was allowed to be drawn at the rate of 6% of
basic pay in the revised scale, as against 10% in the prepevised pay scales.
In case the amount due at 6% of basic pay works out to be lesser than the amount already drawn on 3131982 by an employee on this account,
the amount already drawn shall be protected till it is advantageous to him to draw that amount. From 111982 to 3131982 the amount of risk
allowance as drawn in prerevised scales shall not be recalculated. It was also provided that such of the employees who have opted for prerevised
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.
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 parmanent 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 4IC of the Civil Service Regulations reads as under:
41C 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.''
This Articles was inserted in the Civil Service Regulations on 2641973 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.
The state Government has filed a detailed affidavit. It is contended that since the pay scales were revised reasonably, therefore, percentage of
risk allowance was ordered to be paid at 6% of the basic pay. Even after reduction in the percentage the amount payable on this account to
empleyees has not been reduced but there is a marginal increase in the said amount. In para 8 of the reply affidavit this is highlighted by giving
illustrations. The learned Advocate General submitted that there was no adverse affect on the employees by having reduced the parentage of risk
allowance to 6% after revision to pay.
The area of conflict therefore is narrowed down in this writ petition between the parties Mr. Sadiq submits that determination made by the
Government in respect of the risk allowance in the impugned order is neither judicial nor objective. According to him the determination is arbitrary.
He has argued that when the Government is required to determine anything it postulates that the determination should be made after the application
of mind in an objective manner and after affording an opportunity to the affected person to be heard. Without any data being available to the
Government or without any investigation the Government was not entitled to make determination because the word ""determination"" involves
investigation. In support of this contention he has relied on an authority of the Supreme Court Viz: The U. P. State Electricty Board and another
Vs. Hari Shanker Jain and others. AIR 1979 S. C. 65 On page 69 their Lordships have observed as under:
Before examining the rival contentions, we remind outselves that the Constitution has expressed a deep concern for the welfare o workers and has
provided in Art. 42 that the State shall make provision for securing just and humane conditions of work and in Art. 43 that the State shall
endeavour to secure, by suitable legislation or economic organisation or in any other way, to all workers agricultural, industrial or otherwise, work
a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure etc. These are among the ""Directive Principles of
State Policy"". The mandate of Art, 37 of the Constitution is that while the Directive Principles of State Policy shall not be enforceable by any
Court, the principles are never the less fundamental in the governance of the country 'and' it shall be the duly of the State to apply these principles
in making Laws'. Addressed to Courts, what the injunction means is that while Courts are not free to direct the making of Legislation, Courts are
bound to evolve, affirm and adopt principles of interpretation which will further and net hinder the goals set out in the Directive principles of State
Policy. This command of she Constitution must be ever present in the minds of Judges when interpreting statutes which concern them selves
directly or indirectly with matters set out in the Directive Principles of State Policy"".
The contention is that Directive Principles are part of the Constilution and to secure social justice it is necessary that this court should adopt
principles of interpretation which will further the geals set out in the Directive Principles of State Policy. In the Context of this authority he has
stated that since the determination made by the Stale Government is arbitiary, it has hindered the goals set out in the Directive Principles of State
Policy and has violated the principles enshrined in Art. 42 of the Constitution. Relying on the Sales Tax Officer Vs. M/s Sudarsanam Iyengar and
Sons, AIR 197U S. C. 311 Mr. Sadiq has submitted that the Supreme Court has held that the word ""determination"" must be accorded due
significance. Relying on Raja Bahadur Motilal Poona Mills Ltd. Vs. Girni Kamar Sanghathana, (1979) 4 S C. C 531, the learned counsel has
submitted that the approach in respect of demand for increasing dearness allowance should be considered with a view to achieve social justice and
services should be liberated from excessive precision and rigidity.
I have heard the learned counsel for the parties at length and considered the authorities also.
It is true that risk allowance is a special type of allowance which has been provided videvide SRO 189 dated 2641973 and Art. 41C was
inserted in the Civil Service Regulations. It is to be paid at such rates for such categories of employment as may be determined by the Govt. from
time to time. So the rate at which it is to be paid and the categories to whom it is to be paid is to be determined by the Government. In respect of
the categories there is no dispute. In respect of rate dispute has been raised that it has been reduced without determination. The meaning of
'determination' relied upon by the learned counsel for the petitioner in 1970 S. C. 311 (Supra) will not at all help the petitioners. The Supreme
Court was considering the case under the Sales Tax Act. In respect of Rule 33 of the Sales Tax Rules, it was provided that within three years next
succeding to that to which the tax or licence fee related, determine to the best of his judgment the turnover which has escaped assessment and
assess the tax payable, The determination was in respect of assessment of tax which could net be recovered without hearing the assessee. The
Rules itself made it imperative for the Assessing Authority to issue a notice to the assessee and make such enquiry as may be deemed proper The
requirement of the Rule, therefore, was to hold an enquiry and to issue notice to t e other side and than only determine the tax payable So the
interpretation of Rules 33 of the Sales Tax Rules which was under co sideration before the Supreme Court cannot be imported for interpretting the
word ""determination"" appearing in Art. 41C of the Civil Service Regulations. It is one of the principles of interpretation that interpretation of one
statute cannot be applied as a test for interpreting another statue Moreover under Rules 33 an assesses was liable to pay tax and assessment was
to be made without holding an enquiry and in that context determination of taking statute, therefore, cannot be pressed into service, for interpreting
the word 'determination' used in Art41C of the C. S. Regulations. A tax cannot be imposed recvied without affording an opportunity to a person
who is sought to be taxed Further Art 41 C of the C S Regulations is a benevolent Article nothing is sought to be recovered from the employees
but allowance is to be paid by the Government to afford protection to such of the employees who would face hazard in d scharge of their duties
because of the nature of the...duHes which are sought to be discharged by them. Therefore Supreme Court's decision would not apply to the facts
of the present case.
1979 S. C 65 (Supra) is an authority which was dealing with a question which arose after an Undertaking was purchased by the State and the
superannuation of employees was regularised and notified. The Regulation was held to be valid The Regulation issued under the Rules provided the
dues of officers and servants of the Board and their salaries, allowances and other conditions of service by means of a Notification which was held
to be valid, The notification was considered benevolent and in that context Supreme Court has made observations about Art. 37 of the
Constitution of India which laid down that courts are not free to direct the making of legislation, courts are bound to evolve, affirm and adpot
principles of interpretation which will further and not hinder the goals set out in the Directive Principles of State Policy. The Regulation by a
notification was held to be valid and the Full Bench judgment of the Allahabad High Court was reversed.
In (1979) 4 S. C. C. 531 (Supra) the Supreme Court has observed that while considering the demand for increasing the dearness allowance
guide lines envisaged in the preamble of the Constitution and Atricles 38, 39, 39A of the Constitution are required to be followed. The dearness
allowance in this case was granted by a textile mill in poona in favour of employees and criteria on which it was fixed was not approved by the
court by saying as under .
Ultimately, humanism projected itself more than any other. This court has pointed out that where we deal with the lowest brackets of wages,
neutralisation on account of inflitionary spirals must be hundred percent because the right to life with bare necessaries cannot be shrunken still
further. The higher ranges admit of or accommodate lesson percentage in the matter of neutralisation
This case was in respect of increasing dearness allowance about which the farmulla was given by the Supreme Court and directed to be
obeyed by the mill. This authority, therefore, will have no application to this case has been amalgamated with the pay while revising the pay scales
of the employees. Also additional allowance has been amalgamated with the pay and thereafter pay revised. It is not contended that emalgamation
was bad in any manner.
In its report the Third Pay Commission has said as under
In view of the fact that the pay scales have been revised and the basic pay of employees after revision will go up 100% at the lowest levels to pay
50% at the higher levels, fn view of this unless the rates of locat allowance are correspondingly reduced, there will be very abnormal increases in
the local allowances because the percentage is invariably calculated on the basic pay of the empolyees and not on the total emoluments. Therefore,
it is recommended that wherever there is a 100% allowance it should be reduced to 60%, wherever the allowance is 75% it should be reduced to
33% and wherever the allowance is 50% it should be reduced to 30%
I donot agree with the contention of the learned counsel for the petitioner that risk allowance stands on a different footing that the other
allowances payable to the employees. It is paid to such an employee who is performing a peculiar type of duty. It is an allowance which is
benevolent and is granted to secure the lust and humane conditions of work. The purpose of grant of other allowance is also the same. Third pay
Commission had taken into consideration AH India Consumers Price Index for Industrial workers and made recommendation on that basis, The
recommendations of the Third Pay Coromitsion as such are not challenged in the present writ petition.
The question, therefore, remains to be seen as to whether the State Government's determination of payment of risk allowance was arbitrary or
not. In my opinion it cannot be said to be arbitrary because it is reduced. Merely because the percentage has been brought down it cannot be said
to be tainted with arbitrariness The over all affect of the reduction in percentage of the risk allowance is not adverse to the petitioners and others
who are entitled to draw it. It was paid at the rate of 10% on the prerevised pay scale To the prerevised pay scales. D. A and A. D. A. has been
added and revision of the pay has been made. By determining the percentage at 6% there is marginal increase in the risk allowance. At any rate if
there is any reduction in any individual case, that is also protected by the impugned order. Quantum of the risk allowance has not been reduced
Had the reduction of percentage caused any monetary loss to the petitioners or to others, this court would at once step in and protect the interests
of the petitioner Since no reduction is shown by the petitioners, therefore, it cannot be inferred that they have suffered any monetary loss. After the
pav revision they cannot claim it as a matter of right to be payable at the rate of 10%. Its rate is to determined by the Government and I do not
think the Government was required to conduct an enquiry or invesngation for determining it. It was not like a tax imposed on the citizens of like a
levy required to be collected from the citizens which needed enquiry. It was an allowance payable to the employees for discharging peculiar type of
duties in view of the nature of the job they were engaged in. The Govt. has not reduced it has rather enhanced it though nominally. On cannot lose
sight of the fact that pays of the employees as also of the petitioners and others like them were tremendously increased by the Govt. on the basis of
the recommendation of the third Pay Commission. D. A. and A. D A. was also added to the pay the risk allowance was not abolished but it was
allowed to be drawn and in view of the revision of the pay on the hiaber she, its percentage was only reduceid and harm or monetary loss was
caused to the petitioners. Its abolition or reduction in such a manner which would cause loss to the petitioner would have been violative of Art. 42
of the Constitution In any manner there is noadverse affiction on the petitioners b) fixing the risk allowance of 6% on the revised pay scale. It is true
that courts have a duty to help achieving constitutional goal but courts cannot legislate. They can only evolve a principle to help achieving justice,
social economic and political. The impugned order does not in any manner militates against that principle. Therefore it is not necessary for this court
to interfere with that order. However, it would be desirable that no recovery is made from the petitioners from 111982 to 3131982 on account o
risk allowance but the rate fixed in the impugned order cannot be changed by the court.
For the reasons stated above, the writ petition is dismissed but without any order as to costs.