Judgment:
ORDER
S. Parvatha Rao, J.
1. The petitioners are aggrieved by the stoppage of payment of unhealthy locality allowance (Bad Climate Allowance), Special Compensatory Allowance, Rent-free quarters or Additional House Rent Allowance in lieu of rent free quarters from 1-3-1996. Therefore, they seek a Writ of Mandamus directing the payment of the said allowances with effect from 1-3-1996 after declaring that the stoppage of the said payments is violative of Articles 14, 16 and 21 of the Constitution of India.
2. We do not see how that can be done unless the petitioners establish that they have a right to the said allowances. It is not the case of the petitioners that some Government servants in the State are being paid the said allowances and that they are being denied in spite of their being placed in a similar position as the others receiving the said benefit. The learned Counsel for the petitioners and the learned counsel for the respondents are agreed that no State Government servant is being paid the said allowances after 1-3-1996. No doubt, the Government appointed a Committee to enquire into the question as regards the feasibility of continuing the said allowances. It is stated that the said Committee had already submitted its report.
3. In the counter-affidavit filed on behalf of the respondents by the Additional Secretary to the Government, Finance & Planning (F.W.) Department, dated 24-9-1996 it is stated that the said Committee, which was constituted under G.O.Ms. No. 55, Finance & Planning (FW-TA) Department, dated 11-1-1993, recommended in its report that 'payment of Bad Climate Allowance and Special Compensatory Allowance may be continued as it is without any changes' with certain qualifications as regards the areas in which the said allowances should be given, and that the report is under the consideration of the Government. It is further stated that the Government constituted another Committee in G.O.Rt. No. 971, Finance (TA) Department, dated 16-6-1995 'to make thorough review of the areas presently identified as unhealthy localities as mentioned in G.O.Ms. No. 297, Finance (TA) Department, dated 28-12-1991 for the purpose of payment of Bad Climate Allowance/Special Compensatory Allowance/Additional House Rent Allowance in lieu of Rent Free Quarters/Construction Allowance/Hill Station Allowance and also for classification of categories for the purpose of payment of Special Compensatory Allowance keeping in view of the level of development of various scheduled areas'. It is further stated that this Committee also submitted its report and that the same is under the consideration of the Government. It is also stated that under G.O.Rt. No. 972, Finance & Planning (FW-TA) Department, dated 16-6-1995, pending the report of the Committee constituted under G.O.Rt. No. 971 dated 16-6-1995, allowances were extended on an ad hoc basis upto 29-2-1996. From this, it is obvious that the Government is seized with the question of extending the said allowances beyond 29-2-1996 and is in the exercise of considering the reports submitted by the Committees constituted under G.O.Ms. No. 55 dated 11-1-93 and G.O.Rt. No. 971 dated 16-6-1995. But the question is whether the petitioners can claim the said allowance as of right irrespective of the willingness of the Government of Andhra Pradesh to continue the said allowances. That is to say, whether the petitioners can insist that the said allowances should be paid to them even though the Government as a Policy decides not to continue the said allowances in view of its financial position or any other reason prevailing upon it to discontinue the payment of the said allowances.
4. The learned counsel for the petitioners is unable to establish such a right in the petitioners. On the other hand, the learned Government Pleader for Finance and Planning has placed before us Fundamental Rule 44, which provides for 'Compensatory Allowance'. He submits that the allowances claimed by the petitioners herein fall within the scope of the said Rule and that the petitioners cannot claim the said allowances as of right. In support of his contention, he relies on the decision of the Supreme Court in Director, C.P. Crops Research Institute v. M. Purushothaman, AIR 1994 SC 2541, wherein the scope of Fundamental Rule 44 as it applied to the Central Government employees was considered with reference to the House Rent Allowance. The Supreme Court held that the House Rent Allowance did not form part of 'pay' as defined in Fundamental Rule 9(21)(a). The Supreme Court further held that House Rent Allowance was not a matter of right and that it was in lieu of accommodation not made available to the employees. He also relies on the decision of the Constitution Bench of the Supreme Court in State of M.P. v. G.C. Mandawar, : (1954)IILLJ673SC , wherein it was held that Compensatory Allowance under Fundamental Rule 44 was 'a matter of grace and not a matter of right' and that the grant of Dearness Allowance was not justiciable. F.R. 44 interpreted by the Supreme Court provided, inter alia, that 'a Local Government may grant such allowance to any Government servant under its control and may make rules prescribing the amounts and the conditions under which they may be drawn'. The Constitution Bench held as follows:
'Under this provision, it is a matter of discretion with the local Government whether it will grant dearness allowance and if so, how much. That being so, the prayer for 'mandamus' is clearly misconceived, as that could be granted only when there is in the applicant a right to compel the performance of some duty cast on the opponent. Rule 44 of the Fundamental Rules confers no right on the Government servants to the grant of dearness allowance; it imposes no duty on the State to grant it. It merely confers a power on the State to grant compassionate allowance at its own discretion, and no 'mandamus' can issue to compel the exercise of such a power. Nor, indeed, could any other writ or direction be issued in respect of it, as there is no right in the applicant which is 'capable of being protected or enforced'.
5. In Reserve Bank of India v. R.B.I. Staff Officers Association, : [1991]3SCR460a , the Supreme Court was considering the special duty allowances, otherwise known as special compensatory allowances or remote locality allowances (about 25% of basic pay), granted by the Reserve Bank of India to its officers who were transferred to Gauhati unit from other regions of the country as substantial incentives to accept transfers to its Gauhati1 unit in Assam situated in the North-Eastern part of the country and not to officers belonging to North-Eastern region the latter questioned the denial of allowances to them as arbitrary and violative of Article 14 of the Constitution of India. The case of the Reserve Bank of India was that the said incentives were temporary and ad hoc in nature to tide over the problem of adequately staffing the Gauhati office as non-local officers experienced difficulties in getting accommodation, getting familiar with language and so on, and some incentives had to be given to them to mitigate the hardships experienced by them on transfer to Gauhati. The Supreme Court found that there was no discrimination observing that 'a person transferred from outside the North-Eastern region to Gauhati would normally have to face more severe difficulties than an officer from the North-Eastern region posted in Gauhati or, at the least, the appellant bank could reasonably take that view'. In view of what was stated by the Bank that they were finding it difficult to persuade their officers from the outside to accept transfers to Gauhati and if in the interest of efficiency and proper working the bank bona fide took the decision 'to grant some extra benefits to the non-local officers transferred to Gauhati with a view to maintain efficient working of its unit at Gauhati', it cannot be treated as being guilty of any unlawful discrimination. This view was reiterated by the Supreme Court in Union of India v. S. Vijayakumar, 1994 Supp. (3) SCC 649 and Union of India v. Executive Officers Association Group-C, : (1995)IILLJ643SC . We are not concerned in the present case with any question of discrimination; but the allowances with which we are concerned in the present case are similar to the allowances or incentives given to those working in the North-Eastern Region considered by thesSupreme Court in the above three cases. These decisions of the Apex Court illustrate that it is for the authorities concerned to decide whether or not to give incentives of this nature and as to who should be given these incentives, and that those denied the incentives cannot demand them as of right, absent discrimination.
6. In G.O.Ms. No. 754, Revenue Department, dated 7-8-1969, the Government of Andhra Pradesh decided that 'all Government employees whose head quarters are located in the scheduled area of the State... shall with effect from 1st August 1969 be granted a special allowance equal in amount to the class III special pay admissible under the Manual of Special Pay and Allowances. Under G .O.Ms. No. 77 S.W., Social Welfare (D) Department, dated 24-4-1984, the Government of Andhra Pradesh also granted to the employees working in Tribal Areas Bad Climate Allowance, House Rent Allowance in lieu of rent free quarters, and Education Allowance and Separation Allowance - subsequently modified as Special Compensatory Allowance in lieu of Separation and Education Allowances - in view of adverse climate conditions and difficult living conditions prevalent in Agency areas for want of adequate communications, to ensure greater efficiency among the staff posted in the Agency areas. Thus, these allowances were paid as incentives only and as held by the Supreme Court in G.C. Mandawar (2 supra) and M. Purushothaman (1 supra), they cannot be demanded as a matter of right by the petitioners.
7. In view of this legal position, we have to hold that the petitioners cannot demand the allowances claimed by them as of right and that they cannot compel the respondents to pay the said allowances by way of a Writ of Mandamus. But this, however, does not preclude the Government from granting the said allowances as a matter of policy, if it so decides.
8. In the result, the Writ Petition is dismissed.