Allahabad High Court
Om Veer And 4 Others vs State Of U.P. And 2 Others on 15 May, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:88249 Court No. - 34 Reserved A.F.R. Case :- WRIT - A No. - 2175 of 2023 Petitioner :- Om Veer And 4 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Uma Nath Pandey,Sr. Advocate Counsel for Respondent :- C.S.C.,Anjali Upadhya Hon'ble J.J. Munir,J.
1. This writ petition is directed against an order dated 30.01.2023 passed by the Special Executive Officer (Personnel), Greater NOIDA, District Gautam Budh Nagar, directing the petitioners to be sent back to the Service Provider with immediate effect.
2. According to the petitioners, they are holders of Diploma in Civil Engineering and engaged on different dates on posts of Technical Supervisors by the Greater New Okhla Industrial Development Authority (for short, 'the Greater NOIDA'). The details of the petitioners' engagement with the Greater NOIDA as Technical Supervisors, now called Assistant Managers, are detailed by the petitioners in the following terms:
Sl. No. Name Designation Father's Name Qualification Working Period Total Year 1 Om Veer Assistant Manager Bachchu Singh Diploma Civil Engineering 2007-2023 17 2 Dharmendra Verma Assistant Manager Prem Kumar Diploma Civil Engineering 2004-2023 19 3 Naveen Kumar Assistant Manager Shamsher Singh Diploma Civil Engineering 1999-2023 23 4 Mohit Chaudhary Assistant Manager Tej Pal Singh Diploma Civil Engineering 2013-2023 10 5 Indra Dev Chhokar Assistant Manager Chandra Pal Diploma Civil Engineering 2002-2023 20
3. The aforesaid tabular depiction of facts relating to the five petitioners is pleaded in paragraph No.11 of the writ petition. A Government Order, bearing No. 717/36-5-2020-8(26)/2020 dated 18.08.2020 has been issued saying that in accordance with another Government Order dated 18.12.2019 issued by the Department of Personnel in various Departments of the Government of Uttar Pradesh and its subordinate Establishments, there would be hiring of manpower through outsourcing, and for the purpose, a website developed by the Government of India, called Government e-Marketplace or GeM Portal would have to be utilized. The Greater NOIDA adopted the Government Order dated 18.08.2020 in their 120th Board Meeting held on 09.09.2020. In a subsequent meeting of the Greater NOIDA Board, that is to say, 122nd Meeting held on 22.06.2021, it was resolved that manpower would be procured through the GeM Portal against vacant posts, regarding which requisition had already been sent to the Subordinate Service Public Services Commission and the Public Service Commission. The procurement would, thus, be done by means of outsourcing through Placement Agencies.
4. It was also resolved that Assistant Managers, whose services had been hired through Placement Agencies or Service Providers, would be given the right to write measurement books only, if the concerned Assistant Manager holds necessary qualifications in engineering, as prescribed by the State Government and have further rendered satisfactory service for a period of five years with the Greater NOIDA regularly. In order to implement the resolution of the Greater NOIDA Board dated 22.06.2021 for engagement of Assistant Managers through outsourcing from the GeM Portal, an administrative decision was taken to fill up these posts through Service Providers. A detailed proposal was drawn up, for which the necessary administrative and financial approval was given by the Chief Executive Officer, Greater NOIDA on 18.07.2021. Before that was done, on 14.07.2021, the Greater NOIDA sent a report to the State Government, carrying details of vacancy in different Departments and permission was sought to fill up these vacancies through Manpower Supply Agencies or Service Providers.
5. Once all these decisions were taken by the Greater NOIDA, a tender notice dated 31.07.2021 was published inviting bids from Manpower Supply Agencies/ Service Providers. Different Agencies submitted their tenders and it is the petitioners' case that the tender of one M/s. Madhav Associates, G-36, Sector-5, Daurala, NOIDA, District Gautam Budh Nagar was accepted on 13.09.2021. The bid was accepted for provision 117 employees by M/s. Madhav Associates. For the 117 posts to be filled up through a Service Provider, the want was shown on the Sewa Niyojan Portal of the Employment Office. Against the 117 vacancies, 339 candidates applied on the Sewa Niyojan Portal. The aforesaid list was forwarded by the Service Provider M/s. Madhav Associates to the Establishment Department, where after scrutiny, the Personnel Department consented to intimate candidates, calling them for interview. M/s. Madhav Associates sent information to candidates to participate in the interview conducted by officers of different Departments of the Greater NOIDA. These intimations were sent on the petitioners' mail on 03.12.2021. On receipt of intimation from Outsourcing Agency/ Service Provider M/s. Madhav Associates, the petitioners and the other candidates participated in the interview conducted by the Greater NOIDA. The attendance record of the candidates was maintained.
6. On 28.02.2022, the Senior Manager (Technical) called a report about Technical Supervisors, who have been working for them for more than five years. The Senior Manager (Project) submitted reports dated 26.04.2022 and 01.04.2022 to the Senior Manager (Technical), Greater NOIDA, indicating the qualifications, designation and the period of work of different personnel, who had worked as Technical Supervisors with the Greater NOIDA. The said reports included the names of all the petitioners. On the basis of the aforesaid reports, the Additional Chief Executive Officer, Greater NOIDA finalized the names of Junior Engineers (Civil) to be recruited, but showing them deployed through the Placement Agency/ Service Provider M/s. Madhav Associates vide order dated 04.05.2022. On 20.06.2022, the Additional Chief Executive Officer issued an office order, directing placement of the petitioners as Junior Engineers/ Assistant Managers (Civil). On 06.01.2023, a complaint was laid against the Placement Agency/ Service Provider M/s. Madhav Associates and another Service Provide M/s. Radha Krishna. An inquiry was conducted into the matter by a Two-Member Committee, comprising of Greater NOIDA officials. The report, that was submitted, pointed out that M/s. Madhav Associates provided 36 employees against the 117 posts and in that hiring, the prescribed procedure was not adopted. It is further pointed out that out of the 36 employees provided by M/s. Madhav Associates, 30 were newly engaged hands whereas 6 were experienced hands, working with the Greater NOIDA, amongst whom the five petitioners are included. The other Placement Agency, M/s. Radha Krishna Service Provider had provided 200 employees, out of whom 187 were old hands and 13 new recruits.
7. Now, by the order impugned dated 30.01.2023 passed by the Special Executive Officer (Personnel), Greater NOIDA, 36 hands engaged through M/s. Madhav Associates have been directed to be returned to the Service Provider, which in effect terminates their services with the Greater NOIDA. This includes the 6 existing contractual employees now hired through M/s. Madhav Associates. It includes the petitioners.
8. It is pointed out that one Arvind Kumar, whose services were discontinued on the basis of the inquiry report dated 06.01.2023, submitted an application to the Additional Chief Executive Officer, Greater NOIDA, requesting that he may be permitted to continue in service. By an order dated 03.02.2023, the Additional Chief Executive Officer accepted Arvind Kumar's application and he was permitted to continue in service. Arvind Kumar's application and the note-sheet accepting the petitioners' applications by the Additional Chief Executive Officer, Greater NOIDA dated 01.02.2023 and 03.02.2023, respectively, are both annexed as Annexure Nos. SA-1 to the second supplementary affidavit filed on the petitioners' behalf.
9. The petitioners' further case is that Greater NOIDA invited bids through the GeM Portal for engagement of employees on various posts, including those of the petitioners. In this regard, a copy of the tender notice dated 27.01.2023 is annexed as Annexure No. SA-5 to the second supplementary affidavit. It is also the petitioners' case that the Greater NOIDA has engaged 10 retired employees on different posts, which show existing vacancy and availability of work. The petitioners plead a case of discrimination and arbitrariness on the Greater NOIDA's part in disengaging them, inasmuch as services of persons, junior to them, have been retained and other freshmen have been hired. They have also questioned the policy of keeping sanctioned posts vacant and taking work for years through outsourced employees. They have pleaded a case that outsourcing is a camouflage to pursue a policy of pick and choose. They have attempted to substantiate it by pleadings and materials, including their supplementaries.
10. A counter affidavit has been filed on behalf of the Greater NOIDA. The stand taken in the counter affidavit is that the post of a Junior Engineer, on which the petitioners were earlier not working and had now been engaged through a Service Provider, is a post that is under the purview of the Uttar Pradesh Industrial Development Authority Centralized Services governed by the Uttar Pradesh Industrial Development Authorities Centralized Service Rules, 2018. The said posts have already been advertised for regular selection by the Subordinate Selection Board. In the circumstances, for a period of six months or till duly selected Junior Engineers join, the Greater NOIDA Board by its Resolution No.122/10 dated 22.06.2021 had taken a decision to engage through outsourcing. Thus, this engagement is by way of a stop gap arrangement for a period of six months and not beyond. The sanctioned fund is also for a period of six months to pay for these engagements. It is also pleaded that the petitioners were earlier working on the post of Technical Supervisors and not Junior Engineers. They have applied afresh through outsourcing and were engaged as Junior Engineers, and have never worked as Junior Engineers prior to their recruitment through the Service Provider.
11. It is further pleaded on behalf of the respondents that there is no provision for engagement of Junior Engineers beyond six months, and, therefore, it is not correct to say that the Board have granted permission for appointment vide resolution dated 22.06.2021 for a period of six months or till regularly selected candidates join. The number of posts of Executive Engineers, Assistant Engineers (Civil), Assistant Engineers (Electrical), Junior Engineers (Civil), Junior Engineers (Electrical), have been requisitioned to the Subordinate Service Commission, where selections are pending. In the meantime, to meet the exigencies of work, the Board by their resolution dated 22.06.2021 provided for engagement of hands through outsourcing of manpower by bidding on the GeM Portal.
12. It is pointed out that in the present case, an interim order was passed on 14.03.2023, directing the respondents to continue taking work from the petitioners, as they were doing earlier. However, on the respondents' appeal, the Division, has vacated the order dated 14.03.2023 vide an order dated 06.04.2023, directing the present writ petition to be heard on merits.
13. It is pleaded that there is no relationship of master and servant between the petitioners and the Greater NOIDA, and their services have been hired on contract through a Service Provider. The applicability of the Government Order dated 18.08.2020 has also been pleaded to in paragraph No.17 of the counter affidavit to say that it does not extend any protection of employment to the workforce that is engaged. About the complaints, it is said that the complaints related to favouritism, pick and choose in the engagement of the workforce through Service Providers, where a detailed inquiry was conducted and the complaint found substantiated. It is particularly pleaded that when the term of six months has already expired, for which which the petitioners' services were hired in a stop gap arrangement, they have been returned to the Placement Agency.
14. Heard Mr. Uma Nath Pandey, learned Counsel for the petitioners, Ms. Anjali Upadhya, learned Counsel on behalf of respondent Nos. 2 and 3 and Mr. Girijesh Kumar Tripathi, learned Additional Chief Standing Counsel appearing on behalf of the State.
15. Upon hearing learned Counsel for the parties, this Court finds that it is true that the petitioners were engaged over a long period of time in the capacity of Work Supervisors, as the Greater NOIDA says, or Assistant Managers, as the petitioners say, directly by the Greater NOIDA. They have worked for varying period of time for 17-23 years. The shortest period for which the fourth petitioner, Mohit Chaudhary has worked with the Greater NOIDA is 10 years. Naveen Kumar was engaged in the year 1999 and Om Veer in the year 2007. There were no Service Provider back then. Therefore, the arrangement now brought about to show that the petitioners have been hired through an Outsourcing Agency or a Service Provider, does somewhat appear to be a camouflage. The explanation that has been given by the Greater NOIDA that the service of a Junior Engineer is now part of a centralized service, already notified to the Subordinate Service Board, is plausible to the extent that a Junior Engineer can no longer be recruited or even if permitted to work on an ad hoc arrangement, cannot be regularized on that post. It may also be true that the decision taken by the Board to hire through Service Providers, may have been a pro tem arrangement so far as posts of Junior Engineers were concerned, till regularly selected candidates were available, but the fact cannot be denied that the petitioners were working as Work Supervisors for long periods of time with the Greater NOIDA. To show them to have been recruited through a Service Provider, does not appear to be forthright action, particularly so, as the mechanism of hiring hands through Service Providers, has clearly followed a policy of retaining old hands for felicity of work, which the petitioners, and many others like them, as old hands, are proficient in.
16. The remarks of the Division Bench, while vacating the interim order, upon which much emphasis has been placed by the learned Counsel for the respondents, are not very relevant, because those are confined to the interim matter. All that their Lordships of the Division Bench held was that the interim order, that was earlier passed by this Court, amounted to grant of final relief. It has no bearing on the merits of the parties' case at the hearing. This position of the law has been clarified by the Division Bench in the concluding part of the order dated 06.04.2023. No further allusion, therefore, need be made to it.
17. The position appear to be undisputed that 187 old employees, who were engaged through the other Service Provider M/s. Radha Krishna, have been retained, whereas services of the petitioners have been dispensed with. There is no pleading to indicate if the employees, whose services have been retained are of the same class or cadre as the petitioners' or different from them. They are apparently junior to the petitioners, but to what cadre they belong, is not shown. So far as one of the employee Arvind Kumar, whose services have been extended later on by the Additional Chief Executive Officer, Greater NOIDA on his application, is concerned, it is apparent that he is a news writer, the holder of a completely different post. Very different consideration may apply in his case. Also, the petitioners were holding positions, other than Junior Engineers, as the Greater NOIDA themselves say. They were Work Supervisors earlier. It is not the Greater NOIDA's case that this post has become part of a centralized service. Junior Engineers too, it is not shown, have already been recruited on a regular basis and the work that they have to do, would have to be undertaken through someone. Given the nature of a Junior Engineer's job, unless regularly selected staff of the Centralized Service are available, their work cannot be left unattended by the Greater NOIDA. It would apparently have to be handed over to someone, who would be a freshman. This would involve hiring of fresh hands replacing the petitioners for no ostensible reason.
18. The mention of inquiry, that was held into the recruitment, would be relevant only to the extent that the Service Providers hired fresh hands. There cannot be any case about favouritism in relation to the petitioners, who have track records for 10-23 years with the Greater NOIDA. This Court does not mean to say that we intend to thrust upon the Greater NOIDA the petitioners to be hired as employees, but at the same time, the Greater NOIDA, being an establishment of the State, ought not to pick and choose, throwing out able and experienced hands and replacing them by fresh hands for no ostensible and reason individuate to each case. It is precisely this what they have done here. By one stroke of pen, they have thrown out all the five petitioners and another old hand along with a new staffer under the garb of returning them to the Service Provider. The truth of the matter is their services were never secured through a Service Provider. Rather, they were placed in the Service Provider's lap to effect a change of label and dub them as workers, whose services have come through a Service Provider. The petitioners had been on the Greater NOIDA's roll directly, may be as contractual employees, over periods of time, spreading from 10-23 years.
19. In these circumstances, dispensation of the petitioners' services in the fashion, that has been done through the order impugned, appears to be unreasonable, arbitrary and discriminatory.
20. Quite apart from this fact is another feature of the matter that cannot be ignored. The issue, that is involved here, fell for consideration before a Division Bench of this Court, on appeal from a learned Single Judge's order, in Ashok Kumar and others v. State of U.P. and others, 2019 SCC OnLine All 7333. The facts in Ashok Kumar (supra) may best be recapitulated in the words of their Lordships, as these figure in the report, which reads:
"3. Briefly, the petitioners-appellants (who are 27 in number), claim they had been engaged by GNOIDA through various placement agencies to work on different posts, inter alia Draughtsman Grade-II, Architectural Assistant, Assistant Grade-II, Supervisor, Water Tester/Supervisor, Programmer Grade-II, Accountant Grade-II, Personal Assistant, Manager II/Management Training, Manager-I(Planning). The date of engagement of different petitioners ranges from November, 1993 to February, 2011. However, all petitioners-appellants claim to be continuously engaged from the date of their first joining though, the placement agency through whom they were engaged by GNOIDA have changed over the years. As to the nature of work performed by them, it was further claimed to be permanent in nature. In such facts, the present petitioners-appellants had earlier filed Writ A No. 61127 of 2012 (Ashok Kumar v. State of U.P.). It was disposed of vide order dated 26.11.2012 directing the Chief Executive Officer of GNOIDA to take a proper decision on the representation made by the petitioners-appellants to claim regularization in service of GNOIDA. By order dated 08.07.2013 passed by the Chief Executive Officer of GNOIDA, the aforesaid representation was rejected. It was reasoned, GNOIDA had not engaged any of the petitioners-appellants as contractual workmen but that the said authority had awarded works contract to different contractors against payment. For execution of the work thus awarded, the contractors had engaged the petitioners-appellants and, therefore, there was no master-servant relationship between any of the petitioners-appellants and GNOIDA. Payment was also claimed to have been made by the GNOIDA to the individual contractors and by those contractors to the petitioners-appellants. In absence of letters of appointment, the designation given to the petitioners-appellants by the GNOIDA was explained on grounds of convenience. The case of the petitioners-appellants was also distinguished from 27 other persons to whom relief of regularization had been granted upon their dispute being finally decided by the Supreme Court. The same was described as one time measure adopted by GNOIDA. Further, it was reasoned that the petitioners-appellants could have gained employment only by applying against sanctioned posts as and when the same had been advertised, if they fulfilled the eligibility conditions for the same."
21. The petitioners in the writ petition, that was in appeal before the Division Bench, had claimed quashing of a similar order and a further direction to regularize the petitioners in service. Here, the petitioners have sought a direction to restrain the respondents from interfering in their work as Assistant Managers (Civil) and to pay them salary every month. The learned Single Judge had dismissed the petition. The Division Bench, at the time of admission of the appeal, formulated three questions, which read:
"(1) Whether appellant-petitioners are deemed to be contractual employees of the Greater Noida Industrial Development Authority in view of the fact that they are in employment of it from the period more than a decade irrespective of the fact that their Service Provider was changed?
(2) Whether continuance of the appellants-workmen on daily rate basis/contractual basis through Service Providers, with their change time-to-time amount to an unfair labour practices as per Clause (x) of the Schedule V of the Industrial Disputes Act, 1947?
(3) Whether under U.P. Industrial Development Authority Centralized Service Rules, 2018, the Chief Executive Officer of the respondent authority is empowered to make regularization of the services of the appellant-petitioners?"
22. After considering all issues raised, including that, that it was essentially a matter of contract and a writ petition did not lie, their Lordships of the Division Bench held that the defence about the petitioners serving on contract through Service Providers, appears to be hollow, and in a case like this, to cure patent injustice by State Authorities, a writ under Article 226 of the Constitution would issue. The matter was remitted to the Greater NOIDA, as the petitioners had claimed regularization on the basis of Government Orders, antedating the centralization of services. Here, that question may not be involved and the rights of the petitioners are limited to continue in service as Junior Engineers (Civil) till regularly selected candidates join, or to continue in service on posts that they occupied earlier, which may not be part of the centralized service. Be that as it may, the three questions formulated were answered by the Division Bench in the following manner in Ashok Kumar:
"22. .... Also, in view of the fact that the order of admission formulated three questions, it is considered appropriate to answer the same. Thus, Question No. 1 is answered partly in the affirmative, i.e. the petitioners-appellants are deemed contractual employees of GNOIDA. As to the length of their service, the matter is being remitted to respondent No 1 for passing appropriate orders within a period of three months from today. Question No. 2 is answered thus: the GNOIDA has apparently set up a false plea of having engaged the petitioners-appellants through works contractors. In view of the discussion made above, that arrangement is held to be a device to escape the liability of law. On Question No. 3, we are of the opinion that though the right of the petitioners-appellants to be regularized arose under the Government Order dated dated 24.02.2016, how ever, in view of the subsequent centralization of the services, the appropriate decision is to be made by respondent No. 1 on behalf of the State."
23. The answer to the second question is relevant to the issue here, inasmuch as the plea of engagement through Service Providers here too appears to be without basis as we have already held. We have not reasoned to reach that conclusion on lines that their Lordships of the Division Bench did by looking into the absence of service contracts with the Service Providers. We have drawn that inference from the fact that it is not disputed that the petitioners worked as Technical Supervisors, sometimes called Assistant Managers, for long periods of time before the Government Order dated 18.08.2020 was introduced and a mechanism for engagement of hiring hands through Service Providers became available to the Greater NOIDA.
24. It is noticed that though for the posts of Junior Engineers (Civil), which the petitioners held, it is the Greater NOIDA's case that these are now part of the centralized service and requisition has been sent to the Subordinate Staff Selection Board, but there is no indication, if for the present, all the posts of Junior Engineers, or even some have been filled up through recruitment done by the Staff Selection Commission, and, secondly, it is not shown if the petitioners holding as they were, positions of Work Supervisors earlier, still have the said work to do in the respondents Establishment. If that work is available, it is also not shown why the petitioners have been shunted out, as we have already observed, in an unceremonious manner, after being retained for long periods of time, without any case being pleaded against one or the other petitioners, that may have suddenly rendered all, some or one of them, unfit to be retained in service. This appears to be an impulsive and arbitrary decision, that cannot be termed reasonable at least on the existing material placed before the Court.
25. In the circumstances, this petition succeeds and is allowed in part. The impugned order dated 30.01.2023 passed by the Special Executive Officer (Personnel), Greater NOIDA, District Gautam Budh Nagar, is hereby quashed. A mandamus is issued to the Chief Executive Officer and the Special Executive Officer (Personnel), Greater NOIDA, to re-consider the petitioners' case for a re-engagement on the posts of Civil Engineer (Civil), if regularly selected candidates by the Commission have already not joined or on the post of a Work Supervisor, or other suitable posts, on which they have served in past, in accordance with law, bearing in mind the remarks in this judgment. The aforesaid order shall be passed within four weeks of the date of receipt of a copy of this order by the Chief Executive Officer, Greater NOIDA and the Special Executive Officer (Personnel), Greater NOIDA.
26. Let a copy of this order be communicated each to Chief Executive Officer, Greater NOIDA and the Special Executive Officer (Personnel), Greater NOIDA by the Registrar (Compliance).
27. There shall be no order as to costs.
Order Date :- 15.5.2024 Anoop (J.J. Munir, J.)