Telangana High Court
K. Vittal, Sangareddy Dist. vs Commr., Sangareddy Mun. 3 Ors. on 2 August, 2018
THE HON'BLE SRI JUSTICE M.SEETHARAMA MURTI
Writ Petition No.3858 of 2017
ORDER:
This writ petition is filed, under Article 226 of the Constitution of India, seeking a writ of Mandamus directing the respondents to consider the case of the writ petitioner for regularization of his services as Health Assistant (BDR) as per G.O.Ms.No.16, dated 26.02.2016.
2. I have heard the submissions of Sri S. Jagadish, learned counsel appearing for the petitioner, of the learned Government Pleader for Municipal Administration & Urban Development appearing for respondents 2 & 3, and of Sri N. Praveen Kumar, learned standing counsel appearing for the 1st respondent - Sangareddy Municipality. I have perused the material record.
3. The case of the petitioner and the submissions made on his behalf, in brief, are as follows:
The petitioner passed Intermediate in the year 1998. He also acquired necessary qualification in Public Health and Sanitation Technology in the year 2003. He belongs to BC (D) community. One post of Health Assistant (BDR) fell vacant in the year 1993. The 1st respondent is the Controlling Officer. As per the resolution of the Panel Committee, dated 13.12.2004, bearing No.15, the petitioner was appointed as Health Assistant (BDR) on contract basis with effect from 15.12.2004, for a period of three years on payment of salary on monthly basis. After completion of the said period of contract, vide proceedings, dated 30.10.2007 in Roc.No.160-1082/2007, the petitioner was permitted to continue for a further period of three years with effect from 2 MSRM, J WP.No.3858 _2017 01.11.2007 since the post, which had fallen vacant remained unfilled by regular appointment. In the said proceedings, it is stated by the Commissioner of Sangareddy Municipality that the petitioner would be paid monthly remuneration as per Government Orders from time to time. On the expiry of the said extended period, on 31.10.2010, vide proceedings, dated 31.10.2010, in Roc.No.160-1082/10, the petitioner was permitted to continue for a further period of three years. Thereafter, vide proceedings, dated 30.12.2013 in Roc.No.160-1082/13, the petitioner was further permitted to continue to work as Health Assistant (BDR) on contract basis with effect from 01.11.2013, in view of the emergency work need and as the post remained vacant since a long time. His monthly salary was fixed at Rs.6,000/- in the year 2007; and, the same was enhanced to Rs.7,600/-. The petitioner is continuously working under the control of the 1st respondent on contract basis as Health Assistant (BDR) without any remarks whatsoever since 2004 onwards till the date of the institution of the writ petition. The petitioner discharged the duties of Sanitary Inspector on being placed in-charge of the said post and secured appreciation certifications for best services rendered in the Municipality during the years 2014 & 2016. The 1st respondent, by his letter, dated 24.03.2008 in Roc.No.3056, requested the 2nd respondent - Commissioner & Director of Municipal Administration, State of Telangana, to accord permission to appoint the petitioner in the existing vacancy as per Council Resolution no.415, dated 28.02.2008. However, no orders are passed by the 2nd respondent. Therefore, the 1st respondent again addressed a letter, dated 30.08.2010, requesting the 2nd respondent for consideration of the case of the petitioner and to bring the matter to the notice of the 3rd respondent - Principal Secretary, Municipal 3 MSRM, J WP.No.3858 _2017 Administration & Urban Development, Telangana State. The said proposals are pending before the 2nd respondent. While so, Government issued G.O.Ms.No.16, dated 26.02.2016, amending Section 10 of Act 2 of 1994 adding regularization of services of persons appointed on contract basis under Section 10-A of the said Act. Two conditions are stipulated under Section 10-
A of the said Act. Availability of post in the relevant category in the respective departments is one of the prerequisite conditions for consideration of the request for regularization. The other condition is that regularization may be considered in respect of the person appointed on full time contract basis on a monthly remuneration and that the regularization may be considered only in respect of eligible personnel working as on 02.06.2014, immediately before formation of Telangana State and continuing till the date of the proposed regularization. The petitioner is eligible and is also qualified for appointment to the post of Health Assistant; and, the petitioner was appointed on contract basis with monthly salary in the vacancy that arose in the year 1993 under the control of the 1st respondent. Though the appointment of the petitioner is a full time contract employment, the petitioner as a matter of fact also worked as Sanitary Inspector on in-charge basis. Thus, the petitioner fulfilled the conditions prescribed under G.OMs.No.16, dated 26.02.2016, and is eligible for regularization of his services. The Supreme Court in State of Punjab and others v. Jagjit Singh and others [2016 Law Suit (SC) 1057] held that the principle of equal pay for equal work would be applicable to all the concerned temporary employees (daily wage employees, ad-hoc appointees, employees appointed on casual basis, contractual employees and the like) so as to vest in them the right to claim wages at par with minimum of the pay scale of regularly 4 MSRM, J WP.No.3858 _2017 engaged Government employee. The petitioner is eligible and qualified to hold the post in which he is working on contract basis. He is discharging duties in the same manner as a regular employee. Therefore, pending regularization of his services as per G.O.Ms.No.16, dated 26.02.2016, the petitioner is entitled to the timescale attached to the regular post as per the orders of the Supreme Court. Hence, the writ petition is filed.
4. It is pertinent to note that the petitioner filed WPMP.No.4603 of 2017 seeking the following relief:
'..to direct the respondents to pay the Time Scale attached to the regular post in which the petitioner is working pending regularization of his services as per the Judgment of the Hon'ble Supreme Court of India in a case of State of Punjab and others Vs. Jagjit Singh and others reported in 2016 Law Suit (SC) 1057 by taking into consideration of the proposal made by the 1st respondent dated 24.03.2008 and 30.08.2010 and pass such other and further orders as this Hon'ble Court may deem fit and proper in the circumstances of the case.' On 08.02.2017, this Court while admitting the writ petition granted the following interim order in the afore-said WPMP:
'Petitioner is working as Health Assistant since the year 2004. In the writ petition petitioner is claiming for regulrization of his services. Pending consideration of the issue of regularization, petitioner claims payment of minimum time scale of pay applicable to the post of Health Assistant. The correspondence from the office of the Commissioner, Municipal Council, Sanga Reddy to the Commissioner & Director of Municipal Administration, Hyderabad, in letters dated 24.03.2008 and 30.08.2010, indicate that petitioner is working against the sanctioned post of Health Assistant and petitioner is fully qualified to hold the post of Health Assistant.
Having regard to this and in view of the judgment of Supreme Court in State of Punjab & others Vs Jagjit Singh & others [2017 (1) SCC 148], the respondent-Municipality is directed to grant minimum of the time scale of pay attached to the post of Health Assistant.' 5 MSRM, J WP.No.3858 _2017
5. While so, the 1st respondent filed vacate stay petition requesting to vacate the afore-stated interim order.
6. The case of the respondents as stated in the affidavit of the 1st respondent, in brief, is this:
The petitioner worked in the respondent municipality as outsourcing Sanitary Mastry for six years. Thereafter, he was selected to look after BDR (Health Assistant) work with effect from 01.06.2012 on outsourcing basis. Remuneration was also paid through outsourcing agency. The remuneration was enhanced to outsourcing workers as per G.O.Ms.No.14, dated 10.02.2016, and revised/enhanced remuneration was paid by the agencies to the individuals deployed by them. The petitioner is working in the respondent municipality purely on outsourcing basis. He is not entitled to payment of minimum of the time scale of pay attached to the post of Health Assistant. The then Municipal Commissioner addressed a letter vide Letter in Roc.No.1324/2011/F1, dated 17.02.2011 to the District Medical & Municipal Health Officer, Medak District at Sangareddy ['DMHO', for short] and requested to sponsor qualified candidates for the Births & Deaths Registrar (BDR) post on contract basis.
The DMHO forwarded the applications of five qualified persons vide letter in Roc.No.663/E1/DMO/2012, dated 17.02.2012. The petitioner is one out of the five such candidates. The matter was placed before the Council/Special Officer for selection of eligible and experienced candidate from out of the five candidates sponsored by the DMHO on monthly remuneration of Rs.8,400/- as per G.O.Ms.No.3 Finance Department (SMPC-II), dated 12.01.2011. The Special Officer made an enquiry about the permission from the Government to 6 MSRM, J WP.No.3858 _2017 take up the recruitment against the vacancy. In reply to the Special Officer's question, the then Commissioner stated that there is ban on direct recruitments and that the Council is at liberty to engage a qualified person on outsourcing till a regular candidate is appointed to the post. A regular candidate was posted as Health Assistant in Sangareddy Municipality by the Regional Director cum appellate Commissioner of Municipal Administration, Hyderabad, vide proceedings No.326/2012/A1/ RDMA, dated 17.03.2017. Now there is no vacant post. The petitioner was selected on outsourcing basis with effect from 01.06.2012 to look-after BDR work. The documents relied upon by the petitioner are fraudulent and created for the purpose of filing the writ petition. The municipality never requested to appoint the petitioner in any existing vacancy. The Special Officer, Municipal Council, Sangareddy and the then Commissioner, Sanga Reddy municipality selected the petitioner, on 01.06.2012, for appointment on outsourcing basis. G.O.Ms.No.16, dated 26.02.2016, is not applicable to the petitioner since he is working on outsourcing basis as on 02.06.2014 and remuneration is also being paid through the outsourcing agency. There is no direct contract between the respondent municipality and the petitioner regarding payment of remuneration. The respondent municipality extracted work from the outsourcing staff and for the work rendered on the days of attendance remuneration was paid through the agency. The question of regularization or grant of minimum of the time scale of pay attached to the post of Health Assistant to the petitioner does not arise as he is an outsourcing candidate. He is not eligible for the reliefs claimed. At present, there is no vacancy of Health Assistant post. Sri A. Vijaya Babu, who was posted as Health Assistant in respondent Municipality vide proceedings, 7 MSRM, J WP.No.3858 _2017 dated 17.03.2017. joined duty on 24.03.2017 and at present there is no vacancy of the Health Assistant post in Sangareddy Municipality. The petitioner, who was engaged for other sanitation work is being continued on outsourcing basis. The decision of the Supreme Court relied upon and the G.O are not applicable to the facts of the case of the petitioner as he is not a contract employee. Hence, the interim order may be vacated and the writ petition may be dismissed.
7. I have given earnest consideration to the facts pleaded and the submissions made in line with the pleadings. The petitioner, who claims to have been appointed on contract basis as Health Assistant (BDR) with effect from 15.12.2004 for a period of three years pursuant to the resolution of the Panel Committee, dated 13.12.2014, bearing No.15, has not produced the copy of the said resolution. However, the petitioner produced a Photostat copy of proceedings, dated 15.12.2004 said to have been issued by the Chair Person, Sanga Reddy Municipality which reads as under: - ' As per Panel Committee Resolution No.15, dt.13-12-2004 Sri K. Vittal, S/o.Sri Advappa is appointed as Health Asst. ( B & DR) on contract basis with immediate effect.' The petitioner further produced Photostat copies of proceedings, dated 30.10.2007, 31.10.2010 and 30.12.2013 said to have been issued by the Commissioner, Sanga Reddy Municipality whereby he was permitted to continue for further period, as stated in his pleadings, which are extracted supra. Per contra, the case of the respondents is that the appointment of the petitioner is not on contract basis but his services were engaged on outsourcing basis through an outsourcing agency and that remuneration and enhanced remuneration were paid through the agency and that there is no contract 8 MSRM, J WP.No.3858 _2017 entered into between the 1st respondent municipality and the petitioner. The genuineness of the afore-stated documents relied upon by the petitioner is disputed by the respondents stating that the said documents are forged and created. The petitioner could not produce any documents to show that he received salary from the 1st respondent who is the controlling officer of the post despite the contention of the respondents that he is an outsourced employee and that his remuneration was paid through outsourcing agency. The specific case of the respondents also is that the petitioner worked in the post of Births & Deaths Registrar (BDR) on outsourcing basis. The copy of the proceedings, dated 26.11.2011, in Roc.No.1324/2011/F1, addressed by Sri K.V.R.R. Raju, the then Municipal Commissioner to the DMHO reflect the following aspects: - 'Since 1993, the post of BDR (Health Assistant) i.e., Birth & Deaths Registrar is vacant in the municipality. The Sanitary Inspector has undertaken the duties of the said post also as the said post remained vacant since a long time. The Sanitary Inspector has been transferred to Bhongir Municipality in June, 2011. No person was posted in his place as Sanitary Inspector, as on 26.11.2011. Hence, the Municipality is experiencing difficulties in preparation of Birth & Death Certificates of the individuals and also the work of control of mosquito menace. Sangareddy is the District Headquarters. Daily 30 birth/death certificates have to be issued to the public. With regard to death cases, field verification is compulsory. Due to vacancies of the two posts, the verification is becoming difficult. The municipality was informed that vector borne diseases are growing up every year in the town. Hence, there is urgent need to fill up the BDR post, at-least on contract basis, till the regular post is filled up by the Government. Such a requirement is necessary for the 9 MSRM, J WP.No.3858 _2017 reason that there is no Sanitary Inspector at present in the Municipality.' Stating so, the then Commissioner requested the DMHO to sponsor 3 to 5 eligible candidates who are having requisite qualification for BDR (Health Assistant) post on contract basis till the post is filled by a regular appointment. A copy of the note viz., C.Mo.411/2012/C1, which is placed on record, on a perusal indicates that on the said note being placed by the Municipal Commissioner before the Special Officer for appropriate orders, the Special Officer endorsed on the said note on 02.06.2012 as follows: - '1. Whether sponsored candidates are possessing qualifications prescribed or not"
(2) Is there a permission from government to take up recruitment against vacancy?' The further notings in the said note also indicate that out of five candidates, three candidates attended for interview and that the petitioner is selected for appointment on outsourcing basis subject to payment being made from municipal funds with effect from 01.06.2012. Further, the proceedings of the Commissioner, dated 23.06.2012, in No.C1/567/2012, a copy of which is placed on record, reflect that DMHO is one of the outsourcing agency under Medical & Sanitation; that it has sponsored five eligible candidates having requisite qualification for holding the post of BDR (Health Assistant) on outsourcing basis vide letter, dated 17.02.2012; that out of five candidates, three candidates were interviewed; that amongst them the petitioner was selected and was engaged on outsourcing basis as per Special Officer's orders, dated 02.06.2012; and, that accordingly petitioner who possessed Health & Sanitation technology qualification was permitted to be engaged on outsourcing to discharge duties of BDR (Health Assistant) in Sangareddy Municipality on monthly remuneration of Rs.8,400/- with effect from 01.06.2012, till a regular
10 MSRM, J WP.No.3858 _2017 candidate is posted as per Government orders. Thus, there is sufficient evidence indicating that the appointment of the petitioner is not on contract basis but is on outsourcing basis. Further, it is undisputed that a regular candidate was posted as Health Assistant by the Regional Director-cum- appellate Commissioner of Municipal Administration, Hyderabad, vide proceedings, dated 17.03.2017 and that accordingly, A. Vijay Babu, who was posted as Health Assistant joined duty on 24.03.2017 and he is continuing to work in the said post and the said post is hence not vacant.
8. On the above analysis of facts and events, this Court is of the considered view that the petitioner's contentions need no countenance and that the writ petition, which is devoid of merit, is liable to be dismissed.
9. In the result, the Writ Petition is dismissed. However, it is made clear that if any amounts are paid to the petitioner pursuant to the interim orders, dated 08.02.2017, of this Court, the same shall not be recovered from the petitioner as a sequel to this order; and, the petitioner's services shall be continued for other sanitary works on outsourcing basis as stated in the counter affidavit of the 1st respondent till the necessity ceases. There shall be no order as to costs.
Miscellaneous petitions pending, if any, shall stand closed.
__________________________ M.SEETHARAMA MURTI, J 02.08.2018 Vjl