Himachal Pradesh High Court
Decided On: 19.08.2025 vs State Of Himachal Pradesh & Others on 19 August, 2025
2025:HHC:28399
IN THE HIGH COURT OF HIMACHAL PRADESH
AT SHIMLA
LPA No.561 of 2025
Decided on: 19.08.2025
__________________________________________________________
K.G. Joseph …Appellant
.
(Kuttikkattukunnel Gervasis Joseph)
Versus
State of Himachal Pradesh & Others. …Respondents
Coram
Hon’ble Mr. Justice G.S. Sandhawalia, Chief Justice
Hon’ble Mr. Justice Ranjan Sharma, Judge
1Whether approved for reporting?.
For the appellant: Mr. Rahul Mahajan, Advocate.
For the respondents: Ms. Priyanka Chauhan, Deputy
Advocate General, for
respondents No.1, 2 & 4-State.
Mr. Mukul Sood, Advocate, for
respondents No.3 & 5-Municipal
Corporation, Shimla.
G.S. Sandhawalia, Chief Justice [Oral]
The challenge in the present Letters Patent
Appeal by one of the writ petitioners is to the order dated
08.11.2024, passed by learned Single Judge, in CWPOA
No.4405 of 2019, titled K.G. Joseph and Ors. versus State of
Himachal Pradesh and Ors.
2. The challenge before the learned Single Judge
was to the order dated 02.09.2014 [Annexure P-11],
1
Whether reporters of Local Papers may be allowed to see the judgment?
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whereby the Secretary (Urban Development), Government
of Himachal Pradesh, Shimla, took a decision that the writ
petitioners were not entitled to any extra
.
benefits/distribution of 32% of total laboratory fees realized
from laboratory tests.
3. The reason for declining the said benefit was on
account of the fact that though it was mentioned in
Condition No.8 of the Appointment Letter dated 17.05.1979
[Annexure P-1, in Writ File] issued by the Municipal
Corporation Shimla, to the writ petitioner No.1, that the
said employees were drawing pay and allowances at par
with the State Government and such type of extra benefits
cannot be allowed to government servants by the State
Government. The Corporation Health Officer and
Laboratory Staff were getting pay scale + NPA at par with
their counterparts in the State Government Health
Department/Laboratories and there was no practice in the
State Government Health Department of apportioning or
distributing the laboratory fees among the staff. Thus, the
objection raised by the Local Audit Department was
sustained.
4. The challenge was also laid to the earlier order
dated 07.09.2012, whereby, it had been decided that such
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practice must be discontinued. The objection raised by the
Local Audit Department was held valid and the Municipal
Corporation was directed to ensure compliance
.
immediately.
5. It is not disputed that on earlier occasion, on
account of the letter dated 07.09.2012, as such, the
petitioners had approached this Court by filing Writ
Petition No.8899 of 2012, wherein the learned Single Judge
had set aside the order dated 07.09.2012. Directions were
issued to pass a reasoned, speaking order after taking into
consideration the conditions of service of the petitioners
with other similarly situated persons and the condition
incorporated in their respective appointment letters and
their legitimate expectations. Thereafter, the impugned
order dated 02.09.2014 came to be passed, which was
subject matter of challenge by five petitioners.
6. The reason which weighed with the learned
Single Judge to dismiss the writ petition and reject the
claim was that, although as per the terms of appointment
the Clause was expressly incorporated in the appointment
letter, but the same could not have been incorporated in
the absence of any service rule. However, the claim of the
petitioners was that such a benefit, was on the basis of the
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appointment letter and gave an indefeasible right in favour
of the petitioners which could not be taken away.
Admittedly, the services of the petitioners being governed
.
by the Himachal Pradesh Municipal Services Act, 1994,
and none of the enactments or Rules and Regulations
framed thereunder provide for payment of any share out of
fee collected by the laboratory prevailed with learned Single
Judge. Therefore, the action of the State in withdrawing
such benefit, which was not being granted to the employees
in addition to the pay scales and allowances extended at
par with the other employees of the State, was held to be
justified.
7. Counsel for the appellant vehemently submitted
that the terms of appointment, made in the year 1979, had
continued to operate till the initial stoppage of wages on
07.09.2012, and it was thereafter the petitioners initiated
litigation claiming the said benefit.
8. A perusal of the reply filed by the State shows
that the employees were drawing pay and allowances at par
with the State Government, and therefore, such type of
extra benefits cannot be allowed to government servants
and the Local Audit Department had objected to the release
of 32% share of the Laboratory Fees amongst the
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employees posted in the Laboratory of Municipal
Corporation, Shimla and resultantly, the said decision was
taken.
.
9. The stand of the Corporation, as such, was that
the objection of the Local Audit Department was valid, and
a speaking order had accordingly been passed and duly
communicated. Whereas, the Director, Audit has also
taken the plea that while checking the expenditure of the
Municipal Corporation, it was noticed that 32% of the fees
was being distributed amongst the laboratory staff
irregularly and the staff were getting the pay & allowances
at par with the State Government and such type of extra
benefits were not allowed to Government servants by the
State Government. The Corporation Heath Officer was
getting pay scale + NPA at par with his counterparts in the
State Government Heath Department/Laboratories and an
excess payment of Rs.1,78,516/- was made during the year
2009-10. On this account, the matter was brought to the
notice of Principal Secretary [Urban Development] for
necessary action. The purpose of Audit was to ensure that
expenditure out of Government funds is incurred in
accordance with the Rules and Policy authorizing the same,
and upon such appraisal, the concerned department had
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taken affirmative action.
10. We have gone through the Appointment Letter
on the basis of which the appellant is claiming his right,
.
which provides 8% of the Laboratory share out of the
monthly income of the Laboratory. The appellant had been
appointed way back in 1979 in the grade of Rs.160-10-
200/15-400 plus usual allowance [Rs.160/- per month] as
per the applicable Rules. The said pay scale was duly
revised over the period of years, and his pay has been
enhanced, bringing him at par with other similarly situated
employees working in the State Government.
11. It is always the case of the employees and the
endeavor of the Courts that parity should be maintained at
all levels so as to ensure that Article 14 of the Constitution
of India is not violated. However, nothing has been shown
to us that any service Rule provides that a certain
percentage of the dues collected by the Laboratory is
payable to the employees.
12. It is settled principle that appointments are
made on the basis of Rules in question which specify the
pay grade of the employee, and de hors the same anything
over and above even if it had found mention in the
appointment letter, cannot stand judicial scrutiny.
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A benefit, as such, arising out of such an illegal Clause
cannot be allowed to continue, as a Government employee
is only to be paid salary as per Rules regulating the service
.
conditions, and any such percentage of the work conducted
would be detrimental, as such, and would lead to financial
bleed upon the Government departments, if so permitted.
13. Each and every employee in different situations
would thus be able to claim that he has certain right on
account of the duties he has been performing and would
require percentage of commission out of the earnings of the
Corporation or the Government, which would be de hors
the Rules, as the Rules do not permit payment of any such
percentage or commission to be paid to employees.
14. In such circumstances, and in the absence of
any legal right under the Rules, we are of the considered
opinion that on account of the objection raised by the Local
Audit Department, the concession earlier extended has
been rightly withdrawn. The fact remains that the Audit
Department had proposed that the recovery should be
effected from the employees; however, keeping in view the
fact that there was no misrepresentation on their part, and
the fact that they were paid over a long period, willingly by
the Corporation, we are of the considered opinion that the
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stoppage of the percentage, as such, is justified, and no
recovery can be permitted in view of the law laid down in
State of Punjab and Others v. Rafiq Masih (White Washer)
.
and Others, (2015) 4 SCC 334.
15. Accordingly, we find no irregularity or illegality
in the order of the learned Single Judge warranting
interference in this appeal.
16. With the aforesaid observation, the appeal is
disposed of. Pending miscellaneous application(s), if any,
shall also stand disposed of.
(G.S. Sandhawalia)
Chief Justice
(Ranjan Sharma)
Judge
August 19, 2025
[Shivender/Himani]
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