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Himachal Pradesh High Court · body

2021 DIGILAW 469 (HP)

Sumit Kumar v. State Of Himachal Pradesh & Ors.

2021-07-28

AJAY MOHAN GOEL

body2021
JUDGMENT Ajay Mohan Goel, J. - By way of this petition, the petitioner has prayed for the following reliefs:- "(i) That the action of the respondents whereby they have stopped the salary of the petitioner may kindly be held illegal and violative of Article 21 of Constitution of India and may be quashed and set aside. (ii) That writ in the nature of mandamus may kindly be issued to the respondents to release the salary of the petitioner w.e.f. January 2021 till date with interest throughout." 2. The case of the petitioner is that he was initially engaged as a Clerk in 12th Circle of the H.P.P.W.D. Nahan, H.P., on contract basis, w.e.f. 30.06.2017. Thereafter, vide order dated 01.10.2020 (Annexure P-1), his services were regularized as such with immediate effect. The grievance of the petitioner is that his salary from the month of January, 2021 has been stopped by the respondent-State and since then no salary has been released to him, which act of the respondent-State is completely arbitrary because there is no law which permits stoppage of the release of salary of an employee like petitioner by the respondent-department. According to the petitioner, it is in fact a malafide act on the part of the respondent/State that the salary of the petitioner has not being released despite his performing regular duties with the respondent/ department. As per him, he was communicated vide Annexure P-2, i.e. communication dated 21.01.2021, that he should submit the documents to generate his account in NPS/PRAN (National Pension Scheme/Permanent Retirement Account Number) and if he failed to do so, then his salary would be stopped without any notice. In terms of the averments made in paras 11 and 12 of the writ petition, the petitioner contends that his salary could not have been stopped under any circumstance even if he did not comply with the requirements in terms of Annexure P-2 etc. because there is no law which confers a right upon the respondent/State to stop the release of salary of the petitioner, in his favour. The petitioner contended that fundamental right to livelihood enshrined under Article 21 of the Constitution of India has been infringed as the respondents stopped the release of his salary from the month of January, 2021 without any prior intimation and without initiating any action/inquiry. The petitioner contended that fundamental right to livelihood enshrined under Article 21 of the Constitution of India has been infringed as the respondents stopped the release of his salary from the month of January, 2021 without any prior intimation and without initiating any action/inquiry. Stoppage of salary of the petitioner according to him is without any justification and/or jurisdiction and it is in this background, present petition has been filed by the petitioner, praying for the reliefs already enumerated hereinabove. 3. Petition stands opposed by the respondent/State, inter alia, on the ground that salary of the petitioner has been stopped temporarily as despite reminders he has not submitted necessary forms or subscription to National Pension Scheme, introduced by the Government of Himachal Pradesh. According to the State, all the employees recruited after 15.05.2013 are required to subscribe with National Pension Scheme and contribution from the salary of every employees recruited after 2003 is necessary under Himachal Pradesh Civil Service Contributory Pension Rules, 2006. A copy of said Notification is appended with the petition as Annexure R-1. It is further mentioned in the reply that the forms required for subscription to Contributory Pension Scheme are to be submitted within 15 days from the date of joining to the official by the D.D.O. and on failure, the D.D.O. is responsible for default of any penalty as per letter of the Finance Department, appended with the reply as Annexure P-2. The petitioner joined as a regular Clerk on 01.10.2020 and was accordingly called upon by the concerned D.D.O. to submit the forms for Contributory Pension Scheme (CPS). The petitioner did not submit requisite documents. He was issued reminders time and again to do the needful, but he has not adhered to the directions so issued to him and in these circumstances the respondents were left with no option, but to stop his salary till the time he submits the requisite documents. It is further the stand of the State that the provision for deduction towards National Pension Scheme is in the interest of the petitioner as the government has to make equal contribution towards the fund. The petitioner is acting contrary to his interest and willingly refusing to submit the documents for subscription to Contributory Pension Scheme. It is further the stand of the State that the provision for deduction towards National Pension Scheme is in the interest of the petitioner as the government has to make equal contribution towards the fund. The petitioner is acting contrary to his interest and willingly refusing to submit the documents for subscription to Contributory Pension Scheme. The respondents have no intent to stop the salary of the petitioner and the same shall be released immediately on submission of required documents by the petitioner. 4. Learned counsel for the petitioner has also argued that the salary of the petitioner could not have been stopped by the State on their whims and fancies without following the process of the law as has been done in the present case. He has further argued that the impugned act of the State infringes Article 21 of the Constitution of India. 5. On the other hand, learned Additional Advocate General has argued that it is not a case where the salary of the petitioner has been stopped literally as stated by the petitioner. According to him because it was mandatory for the petitioner, who has been regularly appointed as a Clerk w.e.f. 01.10.2020, to comply with the provisions of the Notification, dated 17.08.2007, therefore, on account of his failing to do so, the department had no option, but to temporarily stop his salary and immediately upon compliance of the provisions of the Notification, dated 17.08.2006, i.e. supply of the requisite documents by him, his salary shall be released immediately. 6. During the course of arguments, the Court had suggested to learned counsel for the petitioner that it will be in the interest of the petitioner to submit the documents being requisitioned by the respondent-department forth with and if the petitioner does so, then the Court shall facilitate the release of his salary immediately. However, learned counsel for the petitioner, on instructions, submitted that the same would be below the dignity of the petitioner and would frustrate the purpose of filing of the petition. 7. I have heard learned counsel for the parties and have also gone through the pleadings as well as documents appended therein. 8. It is not in dispute that the services of the petitioner after his initially engagement on contract basis in the year 2017 have been regularized vide Annexure P-1, dated 01.10.2020, with immediate effect. 7. I have heard learned counsel for the parties and have also gone through the pleadings as well as documents appended therein. 8. It is not in dispute that the services of the petitioner after his initially engagement on contract basis in the year 2017 have been regularized vide Annexure P-1, dated 01.10.2020, with immediate effect. It is also not in dispute that there is in force in the State of Himachal Pradesh, the Himachal Pradesh Civil Services Contributory Pension Rules, 2006, which stand issued vide Notification, dated 17.08.2006. This notification has been issued by the Financial Pension Department of the Government of Himachal Pradesh in exercise of powers conferred by the proviso to Article 309 of the Constitution of India. Rule 4 (1) of the Himachal Pradesh Civil Services Contributory Pension Rules, 2006, provides as under:- " 4. Terms & Conditions:- (1) It shall be mandatory for all the new employees, who are recruited on or after 15-5-2003 to become members of the Scheme under these rules. Each employee shall be required to pay a monthly contribution which would be 10% of the Basic Pay, DA & NPA before 1-4-2004 and Basic Pay, Dearness Pay, DA & NPA w.e.f. 1-4- 2004 to the Contributory Pension Scheme under these rules." 9. Perusal of the provisions of Rule 4 (1) of the Himachal Pradesh Civil Services Contributory Pension Rules, 2006 demonstrates that it is mandatory for all the new employees, who are recruited on or after 15.05.2003 to become members of the Scheme under said Rules. Further, each employee is required to pay a monthly contribution which would be 10% of the Basic Pay, D.A. and National Pension Scheme to the Contribution Pension Scheme under Rule 4 (1) of the Himachal Pradesh Civil Services Contributory Pension Rules, 2006. This mandatory provision contained in Rule 4 (1) of the Himachal Pradesh Civil Services Contributory Pension Rules, 2006, which till date has not been complied with by the petitioner. 10. The contention of the petitioner that his salary has been arbitrarily stopped by the respondent-department is worth rejection. The temporary stoppage of release of the salary of the petitioner in his favour from the month of January, 2021 obviously is on account of the omission on the part of the petitioner to comply with Rule 4 (1) of the Himachal Pradesh Civil Services Contributory Pension Rules, 2006. 11. The temporary stoppage of release of the salary of the petitioner in his favour from the month of January, 2021 obviously is on account of the omission on the part of the petitioner to comply with Rule 4 (1) of the Himachal Pradesh Civil Services Contributory Pension Rules, 2006. 11. Record demonstrates that despite repeated reminders having been issued to the petitioner to generate his account in PRAN, failing which, his salary would be stopped, the petitioner has failed to do so. The Court fails to understand as to why the petitioner is so adamant in not generating his account in PRAN and thus, not complying with the mandatory provisions of Rule 4 (1) of the 2006 Rules. The adamancy of the petitioner is beyond the understanding of the Court. There is no question of non release of salary of the petitioner being violative of Article 21 of the Constitution of India for the reason that the petitioner in his capacity as an employee of the department of Himachal Pradesh Public Works Department is bound by the terms and conditions which govern in his employment which also includes the provisions of 2006 Rules and only on this account his salary has been stopped as a result of his acts of omission. 12. As it is the petitioner who has not complied with the mandatory provisions of Rule 4 (1) thereof, the department cannot be faulted with for temporarily stopping release of salary in favour of the petitioner. The Court further fails to understand as to how it is below the dignity of the petitioner to submit the relevant documents/generate his account in National Pension Scheme, so as to comply with the mandatory provision of Rule 4 (1) of the Himachal Pradesh Civil Services Contributory Pension Rules, 2006, post which his salary, but natural has to be released by the department. In fact, what the Court has understood from the perusal of the pleadings as well as from the contentions raised on behalf of the petitioner by the learned counsel is that the petitioner happens to be an adamant kind of employee who rather than complying with the provisions, which are mandatory to be complied with by him in his capacity as an employee of the respondent-department is unnecessarily taking cudgels with the department. His conduct is unbecoming of a government official and that too at such a nascent stage of his service career when he is still under probation. 13. In view of the discussion hereinabove, as this Court does not finds any merit in the present petition, the same is dismissed. No order as to costs. Pending miscellaneous applications, if any, stand disposed of.