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Freezing of Dearness Allowance and Dearness Relief – Hardship & Legal implications thereof: NC JCM (Staff Side) writes to Cabinet Secretary. Freezing of Dearness Allowance to Central Government Employees and Dearness Relief to Central Government Pensioners

Shiva Gopal Mishra
Secretary

National Council (Staff Side)
Joint Consultative Machinery
for Central Government Employees
13-C, Ferozshah Road, New Delhi-110001

No.NC/JCM/2020

Dated: May 26, 2020

The Cabinet Secretary,
Government of India,
New Delhi

Dear Sir,

Sub: Freezing of Dearness Allowance to Central Government Employees and Dearness Relief to Central Government Pensioners – Hardships & legal implications thereof.

Ref.: (i) MoF(Dept of Exp.)’s O.M. No.1/1/2020=E-II(B) dated 23.04.2020
(ii) Our earlier memorandum No.NC-JCM-2020/CS/PM dated 23.04.2020

This is in continuation of our earlier memorandum cited above regarding unjust decision taken by the Government to freeze the rates of DA and DR up to July 2021, over-riding earlier decision of the Union Cabinet to grant 4% additional DA and DR from 01.01.2020, and arbitrarily changed Cabinet decision through an executive order of the MoF(DoE) vide its O.M. dated 23.04.2020 by Freezing DA and DR as on January 1, 2020. This had put the Central Government employees and Central Government Pensioners in severe hardship. Cost escalation of Essential Commodities, in the wake of Covid-19 crisis period, has further aggravated stressful situation.

Also read: No Freezing of Dearness Relief for Industrial Central Government pensioners – DoT Clarification

We submit the following points for your consideration:-

• Hon’ble Finance Ministerhas recently announced series of financial boost-ups for Rs.20.97 lakh crores as stimulus under “Atmnirbhar Bharat Package” covering certain sectors to boost economic activities.
• As a result of above mentioned economic packages, the business and rich sections of the society got motivational packages, in one form or the other, except the workers, poor people, Government Employees and Pensioners, who have to bear the brunt of the COVID-19 lockdown and its severe impact on the inflation and consequential price rise of all commodities. Instead of providing some relief to them to meet with the higher inflation, it is regrettable that, inspite of the protests by the JCM Staff Side, vide its letter cited above, the Government has not yet withdrawn its orders of 23.04.2020 to freeze DA and DR rates as on 01.01.2020 upto July 2021 and not to pay the arrears for the three installments of additional DA and DR falling due from 01.01.2020, 01.07.2020 and 01.01.2021. This has adversely affected the morale of the Employees and Pensioners, besides causing serious hardship to them and their families, especially from the lower and middle income groups.
• DA and DR are the part of Pay and Pension respectively. DA and DR provide protection against erosion of Wages and Pension due to price rise and inflation. DA and DR are having great importance in wage structure for the Central Government Employees and Pensioners. All Central Pay Commissions decided pay structure by merging DA and DR with the Pay and Pension, treating them as zero from the date of implementation of its report and linking them with the revised base of Price Index from the said date of implementation of its recommendations. Subsequent rise in DA and DR installments are being released to compensate the inflation there-onwards.
• The First Central Pay Commission(1946-48) recommended that, “As long as cost of living is continued to be substantially higher, some system of dearness allowance over and above pay must continue in operation”. Thereafter, every Central Pay Commissions recommended grant of DA and DR to compensate for inflation.
• Third Pay Commission onwards all the Central Pay Commissions had recommended for Revision of DA and DR every six months as per percentage rise of Price Index over the base point on the date of implementation of the respective CPCs.Moreover, DA and DR is linked with the Consumer Price Index, as already accepted by the Government, cannot be freezed.
• DA and DR is the Fundamental Right of an Employee and Pensioner respectively, therefore, withholding this Compensation Package, meant for sustenance against price rise, is unacceptable under any circumstances. The government should take note that, DA and DR provision is meant to facilitate survival of the Employee and Pensioner against erosion of Wages and Pension.
• In its recommendations, vide Para 8.17.37, the 7th CPC continued the same formula of revision of DA and DR every 6 months from 1st January and 1st July.The recommendations of the 7th Pay Commission were accepted by the Union Cabinet. The same cannot be changed or taken away unilaterally through an executive order.
• Fair Wages Committee recommended that, “It is clearly necessary for this country to continue to pay dearness allowance to neutralize wholly or atleast substantially the increase in the cost of living”.
• Payment of Salary/Pension and DA or DR thereon to an employee and Pensioner are not a matter of bounty. It is a vested right of an employee and a Pensioner to receive the salary and Pension(Pension is a deferred wage as held by the Apex Court in DS Nakara’s Case and Major General SPS Bain’s case). DA and DR are part of Salary and Pension. It is also a statutory right as it flows from the Service Rules. Right to receive Salary and Pension every month is part of the service conditions emanating from Article 309 of the Constitution of India.
• In the case of State of MP Vs. Ranojirao Shinde [AIR (1968) SC 1053], it has been held that, right to a sum of money is ‘property’. In the decision in Deokinandan Prasad Vs. State of Bihar & Others [AIR 1971 SC 1409], it has been held that, right to receive pension is a property and the same cannot be taken away or withheld by a mere executive order.
• Freezing of Dearness Allowance and Dearness Relief is a blatant violation of the provision of Article 360 of the Constitution of India.
• Article 300A of the Constitution of India, which confers a Constitutional Right to Property, includes within its purview, salary as a right to property and as a sequel thereof, it applies to Pension and the DA and DR thereon.
• It is pertinent to mention that, neither Epidemic Diseases Act 1897 nor Disaster Management Act 2005 specify or confer any power upon any Government to defer the Salary or Allowances due to its Employees and Pensioners. DA and DR cannot be denied under any circumstances.
• As per Settled Law, financial difficulty is not a ground for the Government to defer or freeze the Payment of Salary/Allowances or Pension by an executive order.

Also read: MACP on completion of 10/20/30 Years of Service or 10 years of service after previous promotion: AAOs, Senior Auditor, Adr, Clerk, MTS

It is, therefore,requested that, the O.M. dated 23.04.2020 of the Department of Expenditure, for freezing of Dearness Allowance and Dearness Relief to the Central Government Employees and Pensioners, may please be withdrawn and arrears of Additional DA and DR @ 4% w.e.f. 01.01.2020 may please be paid at the earliest as per decision of the Union Cabinet taken prior to the said O.M. on freezing of DA and DR.

In conclusion, I would like to add that, like other employees, the Central Government Employees are also equally subjected to undue hardship due to COVID-19 epedemic, and the resultant economic downfall. Many economic demands of the Central Government Employees, including the ones which are approved by the Union Cabinet, are also remaining unimplemented since Government orders are not issued, especially on revision of Night Duty Allowance and Risk Allowance on 7th CPC pay scales, and 7th CPC anomalies, including assurance given by the Group of Ministers during Strike Demand Negotiations, are all remaining unsettled. In this situation freezing DA/DR for 18 months and not paying the arrears is not at all a justified decision. As many prominent economists have suggested to the Government that, money should be given to the people, to improve liquidity and purchasing power in the market, may be considered by the Government in its true spirit, and, therefore, I once again request you to kindly bring all the above justifications for releasing Additional DA/DR to the notice of the Hon’ble Prime Minister, and a favourable decision may be taken in this regard, considering the fact that, a good number of Government Employees are working during the entire lockdown period, taking risk of not only their life, but also their family members.

Also check: Appeal for review of decision Freezing of Dearness Allowance to Central Govt employees

Yours faithfully,

(Shiva Gopal Mishra)
Secretary

Source: ncjcmstaffside.com

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No. AB-14017/5/2020-Estt.(RR)
Government of India
Ministry of Personnel, PGs and Pensions
Department of Personnel & Training

North Block, New Delhi-110001
Date: 15.5.2020

OFFICE MEMORANDUM

Subject: Setting up of Search Committees / Search-cum-Selection Committees – regarding.

The undersigned is directed to refer to this Department’s OM No. AB-14017/11/2004-Estt.(RR) dated 30.7.3007 containing instructions on setting up of Search Committees/ Search-cum-Selection Committees in Government, Autonomous and Statutory Bodies.

2. Para 4(vi) of OM dated 30.7.2007 specifies that composition of Search Committees need to be approved by DoPT in each case, if the post proposes to be filled up by this procedure is in the scale of pay of Rs. 18400-22400 [Level 14 as per 7th CPC pay scales] and above. While Para 5(i) of OM dated 30.7.2007 provides that prior concurrence of DoPT is to be obtained by Ministry/ Department for constituting Search-cum-Selection Committee for all appointments to the post of Chief Executive and for all appointments carrying the pay scale of Rs. 18400-22400 [Level 14 as per 7th CPC pay scales] and above.

Latest DoPT Orders 2020

3. Vide GSR 109(E) dated 12.2.2020, Department of Revenue has notified the Tribunal, Appellate Tribunal and other Authorities [Qualifications, Experience and other Conditions of Service of Members] Rules, 2020. Schedule to these Rules contain the specific composition of Search-cum-Selection Committee for posts of Chairman, President, Presiding Officer, Vice- Chairperson, Vice-President, and Members (eg. Judicial, Administrative etc.) of 19 Tribunals mentioned therein. It has been decided that for constitution of Search-cum-Selection Committee, for the posts in these 19 Tribunals mentioned in the Schedule to the aforesaid Rules, prior approval of DoPT, in terms of OM dated 30.7.2007 (referred to in par 2 above), is not necessary.

Sd/-
(Shukdeo Sah)
Under Secretary to the Govt. of India

To,
Ministries / Departments (as per list)

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No. 11013/9/2014- Estt. (AIII)
Government of India
Ministry of Personnel, Public Grievances and Pensions
Department of Personnel & Training

North Block, New Delhi
20th April, 2020

OFFICE MEMORANDUM

Subject: Preventive measures to contain the spread of COVID-19 – Closure of Departmental Canteens.

It has been decided with the approval of competent authority that all the Departmental Canteens in Central Government Ministries / Departments / Offices shall be closed with immediate effect.

2. All the Ministries / Departments / Offices are requested not to open the canteens until further orders.

Latest DoPT Orders 2020

Also check: All Officers / Staff should wear Safety Mask at all times while in Office for the spread of COVID-19

(A.Bhattacharya)
Deputy Secretary

To

1. All the Ministries / Departments of the Government of India
2. PMO / Cabinet Secretariat
3. PS to MoS (PP)
4. PSO to Secretary(Personnel)
5. Sr.Technical Director, NIC, DoPT

Copy to:

1. Secretary, Ministry of Home Affairs, North Block, New Delhi.

Source: DoPT

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Latest DoPT Orders 2019

F. No. 12/3/2016-JCA-2
Government of India
Ministry of Personnel, Public Grievances and Pensions
(Department of Personnel & Training)
Establishment (JCA-2) Section

North Block , New Delhi
Dated: 7th November , 2019

OFFICE MEMORANDUM

Subject: General elections to the Legislative Assembly of Jharkhand – Grant of Paid holiday to employees on the day of poll -regarding

The undersigned is directed to state that as informed by the Election Commission of India, vide their letter No. ECI/PN /102/2019, dated 01. 11.2019, Sch edule for General Election to the Legislative Assembly of Jharkhand is as under:

Also check: CENTRAL GOVERNMENT HOLIDAY LISTS 2020

In this regard, it is stated that the guidelines issued by this Department vide OM No. 12/14/ 99-JCA, dated 10.10.2001 regarding closure of Government Offices and grant of paid holiday, may be followed by all the Central Government Offices, inclu ding the industrial establishments, in the concerned State.

3 . The above instructions may please be brought to the notice of all concerned.

4. Hindi version will follow.

Source: DoPT

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Latest DoPT Orders 2019

F.No.21/07/2019-CS-l(P)
Ministry of Personnel. Public Grievances Pension
Department of Personnel & Training
(C.S.l Division)

2nd Floor,’A’ wing,
Lok Nayak Bhawan,
Khan Market. New Delhi
Dated 4th November, 2019

OFFICE MEMORANDUM

Subject:- Engagement of retired Government Employees as Consultant in the Department of Posts through advertisement.

The undersigned is directed to circulate the office Memorandum No. 31-5/2017-PE-II dated 23.10.2019 (along-with enclosures) received from Ministry of communications (Department of posts) who have invited applications from the Government Servants from the Central /States Govt./ Autonomous Bodies who have retired from the services for engagement as consultant.

2. In case of any further clarification, applicants are requested to contact the concerned Ministries/ Departments.

(Sarijay Kumar Das Gupth)
Under Secretary to the Government of India
Tele:- 24629412

To,
All Ministries/Departments (through DOPT’s website)

Also check: DoPT Orders 2019 – Engagement of Retired Government Officers as Consultant on contract basis in the Directorate General of Health Services as Under Secretary level

General Terms & Conditions

Note 1 – The total monthly remuneration and the pension drawn by the consultant shall not be more than the Last Pay Drawn by him calculated at the current rates of Dearness Allowance.

Note 2 – Enhanced remuneration may be paid to deserving officials on case to case basis with the approval of Secretary, Department of Posts on account of special expertise/ experience in the concerned field.

3.2 Allowances: Consultants shall not be entitled accommodation to any kind of allowance or Accommodation facility e.g. Dearness Allowance, Transport Facility, Residential Personal Staff, CGHS and Medical Reimbursement etc. However, Conveyance Allowance shall be paid at the rates mentioned in the table above [Para 3,1 1.

3.3 TA/DA: No TA/DA shall be admissible for joining completion the assignment or on its completion, Foreign travel of consultants is not permitted at all. However, should they require to travel inside the country in connection with the official work of the competent TA/DA as admissible to a regular employee of the same grade, he/she retired from, will be paid to him/her after obtaining approval of the authority.

3.4 Drawal of pension: A retired Government officer/official appointed as consultant shall continue to draw pension and the dearness relief on pension during the period of his engagement as consultant, His/her engagement as consultant shall not be considered as a case of re-employment.

3.5 Leave: consultants shall be eligible for Eight (08) Days leave in a calendar year on pro rata basis. No remuneration for the period of absence admissible in excess of the leave will be paid to consultants. Also, un-availed leave shall neither be carried forward to next year nor encashed.

3.6 Tax Deduction at source [TDS]: TDS as admissible shall be deducted from the monthly remuneration of consultants. A TDS certificate shall be issued by the concerned DDO on demand.

3.7 Working Hours: Consultants may follow the normal working hours as prescribed [i,e. 09:00 AM to 05:30 PM), However, as per the exigency one has to sit late to complete the time bound work. Attendance would be made through Biometric Attendance System.

4. QUALIFICATION AND EXPERIENCE OF CONSULTANTS

4.1 He/ She should be a Retired Employee of central Government/ state Government / PSU / Autonomous Body having considerable experience of functioning of Central Government Ministries/ Departments.

4.2 He / she should have effective communication and interpersonal skills with a strong flair for in-depth examination relating to Policy Matters/ Administration / Finance / Any other requisite Field.

5. AGE LIMIT

Normally the maximum age limit for all categories of consultants will be 65 years. However, engagement beyond 65 years and upto 70 years may be resorted to in deserving cases with the approval of secretary (posts) keeping view his/ her good in health & level of expertise.

8. PERIOD OF ENGAGEMENT AND EXTENSION OF TENURE

8.1 The initial engagement of a person as consultant shall.be for the period as given in the Terms of Reference (ToR) or one year, whichever is less. After expiry of initial term, engagement may be extended, based on requirement of the Division and performance of consultant(s) concerned, with the concurrence of AS&FA & approval of Secretary (posts) for a maximum period of one year at a time and not more than 3 terms including initial engagement. Relaxation may be given in deserving cases.

8.2 Such extension proposals should not be sent to Establishment Division. The concerned Divisions may directly submit such proposals to AS&FA for concurrence and approval of secretary (Posts) or Minister-in-charge in case of Joint secretary and above. The final outcome of such proposals may be intimated to Establishment Division.

8.3 The appointment of Consultants is of a temporary (non-official) nature against the specific jobs.

8.4 The engagement of consultants can be terminated by the Department at any time without at assigning any reason thereof by giving them 15 Days notice. However, in case a consultant wishes to resign, he will, have to give 15 days advance notice or remuneration in lieu thereof before resigning from the engagement.

10. CONFIDENTIALITY OF DATA AND DOCUMENTS

10.1 The Intellectual Property Rights (IPR) of the data collected as well as deliverables produced for the Department shall remain with the Department.

10.2 No one shall utilize or publish or disclose or part with, to a third party, any-part of the data or statistics or proceedings or information collected purpose for the of his assignment or during the course of, assignment without for the Department the express written consent of the Department.

10.3 The consultant shall be bound to hand-over the entire set of assignment to the Department before the expiry of the contract and before the final payment is released the by the Department.

11 CONFLICT OF INTEREST

11.1 The consultant appointed by the Department shall in no case represent or give opinion or advice to others in any matter which is adverse to the interest of the Department nor will be indulge in any activity outside the terms of the contractual assignment.

11.2 The Consultant will not be entitled for any benefit/compensation / absorption / regurarization of service with this Department.

12. TERMINATION OF ENGAGEMENT

Department may terminate the engagement in following conditions:
i. The consultant is unable to address the assigned work;
ii. Quality of the work is not to the satisfaction of the Department;
iii. The consultant fails in timely achievement of the milestones as finally decided by the Department
iv. The consultant is found racking in honesty and integrity.

Note: The Department reserves the right to terminate the engagement, fifteen (15) days’written by serving notice on the consultant, Termination
on the day right shall be effected after the completion of fifteen (15) days of delivery of such notice.

13. COMPETENT AUTHORITY FOR TERMINATION OF ENGAGEMENT.

The Head of concerned Division, in case of consultant upto level-13.
Secretary (posts), in case of Consultant at Joint Secretary Level or above.

14. REVIEW OF GUIDELINES
These guidelines may be reviewed as and when the circumstances so warrant with the approval of the Secretary (Posts).

15. RIGHTS OF THE DEPARTMENT
The Department has the right to cancel the advertisement, and not go for engagement of Consultant, at any stage. It may accept or reject any or all applications, without giving any reasons therefor, whatsoever.

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