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Judgment
Satyen Vaidya, J
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.
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 07.09.2012 passed by respondent No. 2 being illegal and arbitrary.
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.
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.
Petitioners made a representation to the respondents. Having failed to get their grievance redressed from the respondents, petitioners had 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.”
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 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.
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.
I have heard learned counsel for the parties and have also gone through the record of the case carefully.
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.
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.
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 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.
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.
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 appointment letter of petitioner No. 1, with respect to payment of such share.
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.
In my considered view, the answer has to be in negative.
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 there under provide for payment of share out of fee collected by 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.
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.
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.
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).
In result, the petition fails and the same is accordingly, dismissed.
Pending miscellaneous application(s), if any, shall also stand disposed of.