Himachal Pradesh High Court
K.G. Joseph And Ors vs State Of Himachal Pradesh And Ors on 8 November, 2024
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWPOA No. : 4405 of 2019
Reserved on : 18.10.2024
Decided on : 08.11.2024
K.G. Joseph and Ors. ......Petitioners.
Versus
State of Himachal Pradesh and Ors. ...Respondents.
Coram
Hon'ble Mr. Justice Satyen Vaidya, Judge.
Whether approved for reporting?1 Yes
For the petitioners : Mr. Rahul Mahajan, Advocate.
For the respondents : Ms. Priyanka Chauhan,
Deputy Advocate General, for
respondents No. 1, 2 and 4.
: Mr. Mukul Sood, Advocate, for
respondents No. 3 and 5.
Satyen Vaidya, Judge
By way of instant petition, petitioners have
prayed for following substantive reliefs:
i) To quash and set aside the order dated
02.09.2014 (Annexure P-11) issued by
respondent No. 2 being illegal and arbitrary.
1 Whether reporters of the local papers may be allowed to see the judgment?
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ii) To direct the respondents to release the
outstanding payment on account of laboratory
share fees out of the monthly income of
Laboratory to the petitioners w.e.f. August,
2012 to September, 2014 alongwith up to date
interest @ 18% per annum.
iii) To quash and set aside the order dated
being illegal and arbitrary.
2. Petitioners while being in employment of 3rd
respondent were being paid some portion of laboratory
share fee out of the monthly income of Laboratory i.e.
the Public Health Laboratory being run under the aegis
of 3rd respondent. The percentage of share differed
according to the post held by the employees of the
Laboratory.
3. The amount of share paid to the petitioners
from laboratory fee was discontinued w.e.f the month
of August, 2011. This is where the grievance of the
petitioners started.
4. Petitioners made a representation to the
respondents. Having failed to get their grievance
redressed from the respondents, petitioners had
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approached this Court by way of CWP No. 8899/2012.
A Coordinate bench of this Court had disposed of the
aforementioned writ petition, vide order dated
17.06.2014, with the observations that the petitioners
were not heard before discontinuing the payment of
share out of the laboratory fee. The operative order
passed in CWP No. 8899/2012, reads as under:-
"3. Consequently, in view of the observations made
above, Annexure R-2-4/1 is quashed and set aside.
However, it shall be open to the respondent State to
pass a reasoned and speaking order taking into
consideration the conditions of service of the
petitioners and other similarly situate persons
incorporated in their respective appointment letters
and their legitimate expectations to get a percentage of
laboratory share which was consequently enhanced to
12% from 8%. Decision be taken within a period of 12
weeks from today."
5. In compliance to aforesaid order passed in
CWP No. 8899/2012, respondent No. 1, passed an order
dated 02.09.2014 (Annexure P-11), reiterating the
decision to discontinue the payment of share in
laboratory fee to the petitioners and to other employees
working in the laboratory on the grounds firstly, that
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there was no legal sanction for payment of amounts to
the employees of laboratory from the laboratory fee
collected from the consumers and secondly, the
petitioners were getting regular pay scales alongwith
NPA, wherever applicable, and that there was no
parallel in any other State Government service.
6. In the aforesaid factual backdrop, petitioners
have filed the instant petition assailing order dated
02.09.2014 (Annexure P-11), passed by respondent
No. 1.
7. I have heard learned counsel for the parties
and have also gone through the record of the case
carefully.
8. Petitioners have based their case on the
premise that the payment of share in the laboratory fee
is their indefeasible right which could not be taken
away. As per petitioners, it was one of the terms of
their employment expressly incorporated in the
appointment letter and hence, the mandatory condition
of their service could not be taken away. The violation
of principle of natural justice has also been alleged.
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9. Respondents have defended their action on
the ground that the audit objection was raised in the
year 2011 and the legal sanctity behind payment of
amount out of laboratory fee in addition to regular pay
package of petitioners was questioned. Thereafter, the
matter was examined by the government and the audit
objection was found having substance. The Finance
Department of the Government of H.P., had also
disapproved the payment of share from laboratory fee to
the petitioners. As noticed above, respondents had
found the payment being made to the employees of
laboratory to be without legal sanctity as there was no
parallel in any other service of the State Government
and was not backed by any service rule.
10. Concededly, petitioners were being paid
some share out of the fee collected by the laboratory
from consumers prior to August, 2011. The Auditors
while conducting audits on the accounts of 3rd
respondent found that 32% share of laboratory fee was
being disbursed to the laboratory staff regularly,
despite the fact that such staff was getting pay and
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allowances at par with that of the State Government.
The Corporation Health Officer and laboratory staff were
even getting Non-Practicing Allowance (NPA) in addition
to regular pay scales. Since, no such practice was in
vogue in any other department/institution of the State,
the audit party recommended stoppage of the payment
of share out of laboratory fee to the employees of
laboratory.
11. The State has accepted such
recommendation; as it has found the practice of
payment of share from laboratory fee to the employees
of laboratory to be not sanctioned by any service rule.
Respondents have also found that no other employee
of the State Government in any other
department/institution was being paid such a share
from fee collected by the instrumentalities of State
Government for any kind of services.
12. At the time of hearing of the matter, learned
counsel for the petitioners has not been able to show
the backing of any service rule for the claim of
petitoners. He could only point out a reference in the
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appointment letter of petitioner No. 1, with respect to
payment of such share.
13. Except for petitioner No. 1, none of the other
petitioners have placed on record their respective
appointment letters. Assumingly their appointment
letters also had a similar clause as contained in the
appointment letter of petitioner No. 1, it is to be
determined whether incorporation of such a clause will
be sufficient to infer existence of an indefeasible right
in favour of the petitioners.
14. In my considered view, the answer has to be
in negative.
15. Indisputably, petitioners have been getting
regular pay scales alongwith NPA in accordance with
their respective posts. The 3rd respondent is a statutory
authority governed under the Himachal Pradesh
Municipal Corporation Act, 1994. The services of the
employees of 3rd respondent are governed by Himachal
Pradesh Municipal Services, Act, 1994. None of these
enactments or rules and regulations framed thereunder
provide for payment of share out of fee collected by
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the laboratory to the petitioners or other employees of
the laboratory. In absence of backing of any service
rule, no legal sanctity is attached to the apportionment
being made to the petitioners out of fee collected by the
laboratory prior to August, 2011. Merely because, the
appointment letter of petitioner No. 1, contained a
clause for grant of some percentage out of the fee
collected by laboratory is not sufficient to hold existence
of indefeasible right of petitioners to claim such amount
in perpetuity. There cannot be any prohibition on the
employer to withdraw such benefit which was being
granted to the employees in addition to the pay scales
and allowances granted at par with other employees of
the State.
16. The amount, in addition to regular pay scales
and allowances, as was being paid to the petitioners
does not qualify to be part of service condition for the
reasons, firstly, that no service rule sanctioned payment
of such allowances and secondly, such allowances are
not being paid to any other employees of the State
Government.
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17. Respondents, while discontinuing the
payment of share of money out of fee collected by the
laboratory, had also validly taken into consideration
fragile financial condition of 3rd respondent. Unviable
financial imposition against employer cannot inhere in
the service conditions of employee.
18. In light of above discussion, I find no illegality
or infirmity in the decision of respondent No. 1 taken
vide order dated 02.09.2014 ( Annexure P-11).
19. In result, the petition fails and the same is
accordingly, dismissed.
20. Pending miscellaneous application(s), if any,
shall also stand disposed of.
(Satyen Vaidya)
8th November, 2024 Judge
(sushma)
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