Uttarakhand High Court
Hari Singh Bisht & Others. ... vs State Of Uttarakhand And Others on 26 July, 2024
Author: Pankaj Purohit
Bench: Manoj Kumar Tiwari, Pankaj Purohit
RESERVED JUDGMENT
HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (S/S) No. 23 of 2018
Hari Singh Bisht & others. ........Petitioners
Versus
State of Uttarakhand and others ........Respondents
Present:-
Mr. M.C. Pant, learned counsel for the petitioners.
Mr. Devendra Singh Bora, learned Standing Counsel for the
State of Uttarakhand/respondent nos. 1 to 3.
Mr. Lalit Samant, learned counsel for respondent nos. 4 to
6.
Mr. Yashpal Singh, learned counsel, holding brief of
Mr. Neeraj Garg, learned counsel for respondent no. 7.
Reserved on : 15.07.2024
Delivered on : 26.07.2024
Coram : Hon'ble Manoj Kumar Tiwari, J.
Hon'ble Pankaj Purohit, J.
Per: Hon'ble Manoj Kumar Tiwari, J.
By means of this writ petition, petitioners have sought the following substantive reliefs:-
"i) Issue writ, rule or direction in nature of the certiorarified mandamus by declaring the Govt. order unconstitutional, unreasonable, arbitrary and against the mandate of law and to quash the same along with all consequential orders and action by which the salary of the petitioners are reduced and stopped 2 after calling the entire records from the respondents along with its effect and operation also. Keeping in view the facts highlighted in the body of the petition.
ii) Issue writ, rule or direction in nature of the mandamus to direct the respondents to pay the salary to the petitioners as they were getting earlier had it been the never order was never inexistence along with arrears with 18% interest and compensation which this Hon'ble Court may deem fit and proper in the circumstances of the case and further to direct the respondents to allow the benefit of regular pay and other service benefits as per UGC/AICTE norms in terms of the law laid down by the Hon'ble court Apex court in the case of "State of Punjab vs. Jagjeet Singh" will all consequential benefits. Keeping in view the facts highlighted in the body of the petition.
iii. Issue writ, rule or direction in nature of the mandamus declaring the petitioners as a contractual employee of the university and UPNL only a placement agency and also to direct the respondents to consider the case of the petitioners for classified them as a permanent and regular, keeping in view the facts highlighted in the body of the petition and further to declare the action of the respondents is unfair labour practice and also against the public policy and quash the same for creating such ostensible employer, employee relationship. Keeping in view the facts highlighted in the body of the petition."
2. Paragraph no. 2 of writ petition reveals that petitioners have challenged Government Orders dated 16.08.2017, 12.06.2013 and 17.06.2016, which are 3 enclosed as Annexure - 1, 2 & 3 respectively to the writ petition.
3. Petitioners were engaged on contract against non-teaching posts in Uttarakhand Technical University, between 2006-2012. It is not in dispute that they were subsequently engaged through private outsourcing agencies, which were changed from time-to-time and lastly, they were engaged thorough Uttarakhand Purva Sainik Nigam Ltd. (hereinafter referred to as 'UPNL'), w.e.f. 01.01.2014. UPNL is a Government Company formed to meet manpower needs of State Departments/ Local and Autonomous Bodies under the State Government, with special emphasis on needs of Ex- servicemen for re-employment.
4. Petitioners have challenged Government Order dated 16.08.2017 issued by Principal Secretary, Finance, Government of Uttarakhand. In the said Government Order, it is mentioned that same category of employees, outsourced through UPNL and other outsourcing agencies, are being paid wages/ allowances/benefits at different rates in different Government Departments/Local and Autonomous Bodies, which is causing dissatisfaction and unrest 4 amongst those who are getting wages/allowances at lower rate and they are also claiming parity in wage structure with their counterparts, who are getting higher wages, therefore, State Government has decided that outsourced employees engaged in all Government Departments/Local and Autonomous Bodies shall be paid wages at uniform rate, as fixed by the State Government.
5. By Government Order dated 12.06.2013 & 17.06.2016, the wages payable to different category of employees outsourced through UPNL, were revised. Petitioners have challenged the Government Order dated 16.08.2017, as they apprehend reduction in the amount they are getting as wages. According to them, pursuant to decision taken by the University, they are getting more wages than what is fixed by State Government for employees outsourced through UPNL.
6. Learned counsel for the petitioners contended that petitioners are discharging same duties as any other regular employee, therefore, they are entitled to pay parity with regular employees of the University on the principle of Equal Pay for Equal Work. He further contended that, after serving for more than a decade 5 against non-teaching posts, petitioners are entitled for regularization of their services against available vacancies. He relied upon a judgment dated 12.11.2018 rendered by Coordinate Bench of this Court in Writ Petition (PIL) No. 116 of 2018.
7. The contentions raised by learned counsel for the petitioners are bereft of merit. As outsourced employee, petitioners cannot claim pay parity with regular employees of the University, who are appointed as per the procedure prescribed in the relevant statutory provisions. Even though, initially, some of the petitioners may have been directly appointed by the University on contract; but, their status was subsequently changed to that of an outsourced employee in 2014 and they accepted such change in their status, without any demur. Thus, today their status is that of an outsourced employee and they are engaged through a middleman, namely UPNL. The rate of wages of employees engaged through UPNL has been fixed by the State Government and petitioners have accepted their engagement through UPNL as per the terms & conditions decided by the State Government, therefore, they cannot now raise a grievance that they 6 are not being paid salary at par with regular employees of the University. There is nothing on record to show that educational qualifications, duties, responsibilities, working hours etc. of the petitioners are similar to that of the regular employees serving in the University. Thus, the condition precedent for application of principle of Equal Pay for Equal Work is missing.
8. Grievance raised regarding non-consideration of petitioners claim for regularization, is also without any substance. It is not known whether they are serving against sanctioned vacant posts. It is settled position in law that regularization can be made only under a scheme framed by the State Government or as per the Statutory Rules, governing service conditions of employees. The writ petition is silent regarding any scheme or statutory provision for regularisation of casual/temporary employees. During the course of argument also, learned counsel could not substantiate claim of the petitioners for regularisation, as such no direction can be issued for their regularization.
9. Learned State Counsel points out that the judgment dated 12.11.2018 rendered by Coordinate Bench in Writ Petition (PIL) No. 116 of 2018 was 7 challenged by State Government by filing S.L.P. and Hon'ble Supreme Court has been pleased to stay the said judgment and the stay granted by Hon'ble Supreme Court is still operating.
10. Learned counsel for the University referred to judgment dated 07.10.2017 in Special Appeal No. 27 of 2017 and submitted that similar contentions raised on behalf of employees, outsourced through UPNL, were repelled by Division Bench of this Court in the said Appeal.
11. Learned counsel for the petitioners relied heavily on the Resolution passed by Finance Committee of the University, in its 12th meeting held on 19.11.2012. The Agenda Item No. 13 and the Resolution passed thereupon, in the said meeting, are extracted below:-
**13- lsoknk;h laLFkk eS0 izksfot] eSuflLVe] ubZ fnYyh ds ek/;e ls fo'ofo|ky; esa dk;Zjr vkmVlkslZ dkfeZdksa ¼r`rh; ,oa prqFkZ Js.kh½ gsrq laLFkk@deZpkfj;ksa dh ekax ij bl Js.kh ds lHkh dkfeZdksa dks NBs osru vk;ksx dh laLrqfr ds vk/kj ij tksM+s tkus ds n`f'Vxr ,oa fo'ofo|ky; ds O;kid dk;Z fgr esa bu dkfeZdksa dks foŸk lfefr ls Lohd`fr dh izR;k'kk esa vuqeU; fd;s x;s osru@xzsM osru@65 izfr'kr egaxkbZ HkŸkk@vU; HkŸkksa dh Lohd`fr dk izLrko vuqeksnukFkZ**A fofu'p;%& bl Øe esa izLrqr izLrko dk voyksdu@v/;;u ek0 lnL;ksa }kjk fd;k x;k rFkk izeq[k lfpo] egksn; }kjk funsZ'k fn, x;s 8 fd NBs osru vk;ksx dh laLrqfr ds vk/kkj ij osru] xzsM osru ,oa egaxk;h HkŸks dh Hkkafr u nsdj vkmVlksZl vk/kkj ij dkfeZd ds in@;ksX;rk ,oa dk;Z{kerk ds n`f'Vxr ,oa lsoknk;h laLFkk dh ekax ij U;wure o vkSfpR;iw.kZ ladfyr osru (Consolidated Salary) fn, tkus dh vis{kk dh x;hA bl izLrko ij loZlEefr }kjk vuqeksnu fd;k x;kA**
12. Perusal of Agenda Item No. 13 reveals that in the year 2012, petitioners were engaged through M/s Prowiz Mansystem Pvt. Ltd., New Delhi and, on their demand, University decided to grant certain monetary benefits to them in anticipation of approval of the Finance Committee. However, when the decision taken by University was placed before the Finance Committee in its 12th meeting, the Finance Committee did not approve the proposal, as submitted, and decided to pay minimum consolidated salary, as fixed by the outsourcing agencies. Thus, the resolution passed on Agenda Item No. 13 do not support the contention of the petitioners that they were paid higher wages in terms of decision of Finance Committee of the University.
13. Learned counsel for petitioners, however, submits that, pursuant to resolution on Agenda Item No. 13 passed in 12th meeting of Finance Committee, upward revision of wages of outsourced employees was 9 made and petitioners started getting higher wages, compared to the wages fixed by State Government for outsourced employees. He further submits that petitioners continued to receive such higher wages even after their engagement through UPNL, effective from 01.01.2014.
14. Petitioners have questioned the Government Order dated 16.08.2017, which provides for parity in wage rates amongst employees outsourced in various State departments through UPNL. The rationale for taking such policy decision is indicated in the Government Order and it is mentioned that due to disparity in wages paid to outsourced employees in different Government Departments/Autonomous Bodies, dissatisfaction is caused and employees, who are getting lesser amount as wages, in some departments are also demanding higher wages. Such a situation warranted Government intervention, therefore, State Government stepped in to resolve the issue of disparity in wages in keeping with its role as model employer.
15. UPNL is a Government Company, wholly owned and controlled by the State Government. It was established, primarily to address the problem of re- 10
employment of ex-servicemen, who generally retire at very young age. UPNL, being an instrumentality of State, cannot maintain differential wage structure in respect of persons sponsored by it for employment to different Government Departments/Autonomous Bodies. Since complaints were received by State Government regarding difference in wages to outsourced employees in different State Departments/Autonomous Bodies, therefore, State Government was justified in issuing a directive that same category of outsourced employees, will get wages at the same rates, even though engaged in different organisations..
16. Having regard to the object of establishing UPNL as outsourcing agency for meeting the manpower needs of State Departments/Autonomous Bodies, the decision to maintain parity in wage structure conveyed vide Government Order dated 16.08.2017 cannot be said to be arbitrary or unjust, so as to warrant interference by this Court. For the same reason, Government Orders dated 12.06.2013 and 17.06.2016 also cannot be faulted. Thus, there is no scope for interference with the Government Orders impugned in the writ petition.
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17. According to petitioners, they were getting wages higher than what was payable to other employees outsourced through UPNL, in view of decision taken by the Finance Committee of the University, which they continued to get till issuance of impugned Government Order dated 16.08.2017.
18. If the said contention raised on behalf of petitioners is correct, then they were entitled to opportunity of hearing before diminution of their wages; as it tantamounts to change in their condition of service, which cannot be effected without following Principles of Natural Justice.
19. In such view of the matter, the writ petition is disposed of with a direction to the Registrar of the University to examine whether petitioners were being paid wages higher than the rate fixed by the State Government. If he finds that petitioners were in fact being paid higher wages, then he shall give two weeks notice to the petitioners and after considering their reply, he shall decide as to whether petitioners are entitled to wages at the same rate, as was being paid to them upto 15.08.2017. The decision so taken by the Registrar shall be placed before the Finance Committee 12 of the University for approval. This Court hopes and expects that the entire exercise shall be completed within three months.
20. For a period of four months' or till the matter is considered by the Finance Committee, whichever is earlier, the wages presently paid to the petitioners, pursuant to the interim order passed in this writ petition, shall not be reduced.
(Pankaj Purohit, J.) (Manoj Kumar Tiwari, J) Navin