Telangana High Court
Valluri Suresh vs The State Of Telangana, And 2 Others on 21 December, 2023
THE HONOURABLE SMT. JUSTICE T. MADHAVI DEVI
WRIT PETITION NO.26577 OF 2021
AND
WRIT PETITION NO.34781 OF 2021
COMMON ORDER
Both the Writ Petitions are filed by the same petitioner and in W.P.No.26577 of 2021, the petitioner is seeking a Writ of Mandamus declaring the action of the respondents in not considering the case of the petitioner in extending the pay scale in terms of G.O.Rt.No.577, Revenue (Endts-I) Department, dt.15.09.2017 and G.O.Rt.No.121, Revenue (Endts-I) Department dt.09.03.2018 as illegal, arbitrary and violative of Articles 14, 16 and 21 of the Constitution of India, while W.P.No.34781 of 2021 was filed seeking a Writ of Mandamus declaring the action of respondent No.2 in directing respondent No.3 to appoint another person through contracting agency in the place of the petitioner and striking of the petitioner's name in the attendance register as illegal, arbitrary and violative of Articles 14 and 16 of the Constitution of India.
2. Since the facts and circumstances requiring consideration for adjudication of both the Writ Petitions are one and the same, both the W.P.Nos.26577 & 34781 of 2021 2 Writ Petitions were clubbed and heard together and are being disposed of by this common and consolidated order.
3. Brief facts leading to the filing of the present Writ Petitions are that the petitioner was appointed as a Booking Clerk/Ticket Seller on 01.09.2013 at Sri Parvathi Jadala Rama Lingeshwara Swamy Temple, Cheruvugattu, Narketpally Mandal, Nalgonda District on daily wage basis with a consolidated payment of Rs.6,000/- per month. Thereafter, in the year 2017, the Government of Telangana issued G.O.Rt.No.577, Revenue (Endts.I) Department, dt.15.09.2017 recommending extension of pay scales comparable to PRC 2015 to all the qualified full time employees working on contract/NMR/consolidated pay basis as a onetime measure. Subsequently, the Government issued G.O.Rt.No.121, Revenue (Endowments-I) Department, dt.09.03.2018 according permission to the Commissioner, Endowments Department and further, vide G.O.Rt.No.401, Revenue (Endowments-I) Department, dt.05.09.2018, the Government issued directions to the Commissioner of Endowments to take necessary action for release of grant-in-aid for those temples where there is deficit income to meet the financial commitment and pay salaries and other emoluments to Archakas and W.P.Nos.26577 & 34781 of 2021 3 office holders by extending pay scales to all full time employees working on contract/NMR/consolidated pay basis. Thus, the petitioner claims to be eligible for pay fixation in accordance with the above said G.Os. and he made representations to the respondents to consider his case and extend the pay scale attached to the post as per the said G.Os. When no action was taken on his representations, the petitioner approached this Court in W.P.No.5777 of 2019 and basing on the oral assurance given by the respondents that the respondents are ready to pay salaries to the petitioner, it is submitted that the petitioner had withdrawn W.P.No.5777 of 2019 on 15.07.2021. It is submitted that under similar circumstances, some of the other employees of the same temple approached this Court in W.P.No.40195 of 2018 and W.P.No.22038 of 2021 seeking extension of minimum time scale of pay attached to the posts held by them and vide order dt.08.11.2018 in I.A.No.1 of 2018 in W.P.No.40195 of 2018 and I.A.No.1 of 2021 in W.P.No.22038 of 2021, this Court had directed the respondents to pay the minimum time scale of pay to the regularly engaged employees in the Endowments Department discharging similar duties as per the judgment of the Hon'ble Supreme Court in the case of State of Punjab W.P.Nos.26577 & 34781 of 2021 4 and others Vs. Jagjit Singh and others 1. When the interim orders of this Court were not implemented, the petitioners therein filed C.C.No.3196 of 2018 and thereafter, the orders were implemented by the respondents vide proceedings C No.82/SPJARSD/2021 dt.06.06.2021. Since the petitioner also claims to be in similar situation, the petitioner filed W.P.No.26577 of 2021 seeking similar relief.
4. While the matters stood thus, the respondents have sought to engage the services of another person through a contracting agency in place of the petitioner and struck off the petitioner's name in the attendance register in the month of December, 2021. Challenging the same, W.P.No.34781 of 2021 has been filed.
5. This Court was not inclined to grant any interim order in favour of the petitioner.
6. Counter affidavits have been filed in both the Writ Petitions and in the counter affidavit filed in W.P.No.26577 of 2021, it is stated that respondent No.3 temple is a reputed Shaivite temple situated in Nalgonda District in the State of Telangana and that it is a temple published under Section 6(a)(ii) of the Endowments Act 30 of 1987 and 1 AIR 1994 SC 1598 W.P.Nos.26577 & 34781 of 2021 5 also registered under the provisions of Endowments Act 30 of 1987. It is submitted that the subject temple falls within the administrative jurisdiction of the Regional Joint Commissioner of Endowments, Hyderabad and the day-to-day affairs of the subject temple are overseen by the Assistant Commissioner-cum-Executive Officer appointed by the Endowments Department from time to time. In respect of the service of the petitioner, it is stated that his services were first utilized in the subject temple as daily wage worker on payment of Rs.6,000/- per month through vouchers and therefore, the petitioner was a daily wage/NMR worker and the petitioner rendered his services for a brief period till September, 2017 and from September, 2017 till October, 2020 and the petitioner did not render his services to the subject temple and again from 23.11.2020 to 22.10.2021, the petitioner rendered his services to the subject temple on outsourcing basis through M/s. Ankita Technical and Manpower Agencies. It is submitted that thereafter, the services of the petitioner herein were surrendered to the outsourcing agency on 28.11.2021 and a new incumbent has been appointed in place of the petitioner on outsourcing basis thereafter.
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7. It is submitted that the Government has issued various G.Os. to grant pay scales (PRC) to all the employees working on full time/contract/NMR basis and accordingly, the PRC payments were calculated for the petitioner herein for the period commencing from February, 2016 to August, 2017 and the differential amount of Rs.93,600/- was paid to the petitioner vide cheque No.1028371 dt.24.12.2021. It is submitted that the petitioner is not a regular employee of the subject temple and prior to surrendering of his services, the petitioner rendered service on outsourcing basis and therefore, the petitioner cannot equate his position to that of a regular/full time/contract employee. Therefore, according to the respondents, the petitioner did not work continuously either on full time or on contract basis and therefore, he is not eligible to any grand-in-aid pay scale attached to his post.
8. In the counter affidavit filed in W.P.No.34781 of 2021 also, it is denied that the petitioner was working with respondent No.3 temple and that his services were surrendered to the outsourcing agency in the month of November, 2021. It is stated that it is the prerogative of the subject temple to hire the services/surrender the services to the W.P.Nos.26577 & 34781 of 2021 7 outsourcing agency and since the petitioner's style of functioning and raising cantankerous litigation was not conducive to the subject temple's administration, his services were surrendered.
9. The petitioner has filed rejoinders to the counters filed in both the Writ Petitions and submitted that the factum of the petitioner's name being reflected in the attendance registers contradicts the contention of respondent No.3 that the petitioner is an outsourcing employee. The petitioner has drawn the attention of this Court to the attendance register from 23.11.2020 till 22.10.2021 to show that he has signed the same as not an outsourcing employee. He submitted that in similar circumstances, in W.P.No.7084 of 2022 and W.P.No.8308 of 2022, interim orders were granted to continue the petitioners therein in service and when the interim orders were not complied with, the petitioners therein had filed Contempt Cases and it is thereafter that the orders of this Court were complied with. It is submitted that in the case of the petitioner also, the respondents are taking a ground that the petitioner was working through an outsourcing agency only to defeat the claim of the petitioner and that the said contentions are not in accordance with the facts on record.
W.P.Nos.26577 & 34781 of 2021 8
10. The learned counsel for the petitioner has also placed reliance upon the judgment of this Court in the case of G. Srinivasa Chary and others Vs. State of Telangana represented by the Principal Secretary to Municipal Administration and Urban Development and another 2, wherein after considering the contentions of both the parties at length, this Court, after examining the issue of outsourcing, has held as under:
"79. In the result,
(a) The Writ Petition is allowed;
(b) the respondents' action in engaging the petitioners on "outsourcing basis" as Sanitary Supervisors (SFA), Sanitation Workers, Entomology Field Workers, Entomology Superior Field Workers, Supervisors (EFA), Superior Field Assistants through intermediaries/agencies/contractors is contrary to law, violative of Article 14, 16 and 21 of the Constitution of India and also the law declared by the Supreme Court in Uma Devi (1 supra) mandating periodic regular recruitment to sanctioned posts;
(c) that the "outsourcing" system adopted by the GHMC is only a sham and a ruse to avoid extending to the petitioners their genuine service entitlements; and that the presence of such intermediary/contractor has to be ignored, and the petitioners are held to have been directly engaged by the GHMC and they are also held entitled to be considered for regularisation of their services;2
I.A.No.1 of 2019 in/and W.P.No.47675 of 2018 dt.07.08.2020 W.P.Nos.26577 & 34781 of 2021 9
(d) consequently, the respondents, while continuously engaging the services of the petitioners directly henceforth, are directed to consider the case of the petitioners for regularisation of their services, by ignoring the existence of the intermediaries/agencies/contractors in the posts of Sanitary Supervisor (SFA), Sanitation Workers, Entomology Field Workers, Entomology Superior Field Workers, Supervisors (EFA), Superior Field Assistants within two (2) months from the date of receipt of a copy of the order.
(e) the petitioners are entitled to minimum of time scale of pay attached to the posts of Sanitary Supervisor (SFA), Sanitation Workers, Entomology Field Workers, Entomology Superior Field Workers, Supervisors (EFA), Superior Field Assistants in which they are now discharging their functions till their claim for regularisation is considered by the GHMC in accordance with para 53 of the decision in Uma Devi (1 supra); and such payments shall be made by the GHMC directly to the petitioners w.e.f the date of filing of this Writ petition ( after deducting the payments already received by them during this period from the contractor/intermediary) and shall be continued till the cases of the petitioners are considered for regularisation by the GHMC. The arrears upto 31.7.2020 shall be paid on or before 15.9.2020.
(f) I.A.No.1 of 2019 is dismissed. No costs."
11. Having regard to the rival contentions and the material on record, this Court finds that the undisputed facts in these cases are that the G.O.Rt.No.577, Revenue (Endts-I) Department, dt.15.09.2017 and G.O.Rt.No.121, Revenue (Endowments-I) Department, dt.09.03.2018 and G.O.Rt.No.401, Revenue (Endowments-I) Department, W.P.Nos.26577 & 34781 of 2021 10 dt.05.09.2018 are applicable to the employees working on contract/consolidated pay/NMR basis in Telangana Charitable and Hindu Religious Institutions and Endowments. The only question therefore is whether the petitioner is working on contract/consolidated pay/NMR basis and whether he is eligible for the pay scales as provided in the above G.Os.
12. The stand of respondent No.3 is that the petitioner was engaged as a daily wage worker from the year 2013 and worked continuously till the year 2017 on a consolidated pay of Rs.6,000/- per month. It is submitted that again the services of the petitioner were engaged from 23.11.2020 till 22.10.2021 through an outsourcing agency, i.e., M/s. Ankita Technical and Manpower Agencies.
13. In support of his contention that he was continuously in service, the petitioner has filed copies of the letter along with enclosures issued by the Assistant Commissioner and Executive Officer of the 3rd respondent temple dt.18.11.2016, wherein the name of the petitioner has been shown at Serial No.51 as an Office Subordinate and to be receiving a consolidated pay of Rs.6,000/- and the date of joining is shown as 01.09.2013. His name is also reflected in the subsequent records as W.P.Nos.26577 & 34781 of 2021 11 working as a Daily Wage Worker/NMR. He has also drawn the attention of this Court to the letter of the 3rd respondent dt.05.09.2018 addressed to the Commissioner, Endowments Department, Hyderabad, wherein the name of the petitioner was not mentioned, though the names of other persons, who were engaged in similar circumstances as the petitioner herein, were mentioned in the letter. There is evidence in the form of attendance register to demonstrate that the petitioner was working with respondent No.3 temple, and there is admission of respondent No.3 in their counter affidavit that the petitioner had been working through an outsourcing agency from 23.11.2020 till 22.10.2021.
14. The learned counsel for the petitioner, however, relied upon the cut-off date mentioned in G.O.Rt.No.121 dt.09.03.2018 that for the purpose of extension of pay scales as per G.O.Rt.No.557 dt.15.09.2017, the cut-off of 02.06.2014 is to be taken into consideration keeping in view the formation of new State of Telangana. He submitted that since the services of the petitioner were engaged and the petitioner was on rolls of respondent No.3 temple as on the said date, the pay scales are applicable to the petitioner herein as well and that the petitioner is also eligible for regularisation of his services.
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15. Further, this Court in W.P.No.26577 of 2021 vide orders dt.26.10.2021 has already directed the respondents to pay to the petitioner wages on par with minimum of pay scale of regularly engaged employees in the Endowments Department discharging similar duties in view of State of Punjab and others Vs. Jagjit Singh and others (AIR 1994 SC 1598). This order has not been vacated by this Court and hence has become final and has to be complied with by the respondents.
16. In view of the same, this Court is of the opinion that as per the directions of the Hon'ble Supreme Court in the case of State of Punjab and others Vs. Jagjit Singh and others (1 supra), in this case also, the respondents are required to make payment of the minimum of the time scale of pay to the petitioner herein in terms of G.O.Rt.No.577, Revenue (Endts.I) Department, dt.15.09.2017 and G.O.Rt.No.121, Revenue (Endowments-I) Department, dt.09.03.2018 for the services rendered by him from the year 2013 to 2017 and from 2020 to 2021.
17. The learned counsel for the petitioner submitted that the petitioner's services were continued up to 06.12.2021 and thereafter, his services were replaced by another person. He submitted that a temporary employee cannot be replaced by another temporary employee as held by W.P.Nos.26577 & 34781 of 2021 13 the Hon'ble Supreme Court in the case of Manish Gupta and another Vs. President, Jan Bhagidari Samiti and others 3.
18. Further, in the case of other similarly placed persons also, the respondents have not taken a plea that the petitioners therein were working through an outsourcing agency and not on contract or daily wage basis in the temple and the Court has observed that the said plea was taken only in the counter affidavit filed in the subsequent Writ Petition and not in the counter affidavit filed in the earlier Writ Petition and therefore, the contention of the respondents appeared to be an after- thought and as a counter blast to the orders passed by this Court in the said Writ Petition.
19. However, as regards the prayer in W.P.No.34781 of 2021, this Court finds that the petitioner was admittedly replaced by another temporary employee which is not permissible as held by the Hon'ble Supreme Court in the case of Manish Gupta and another Vs. President, Jan Bhagidari Samiti and others (3 supra). The petitioner has been working from the year 2013 and from the report of the Chairperson of the 3rd respondent temple, the services of the petitioner 3 2022 SCC OnLine SC 485 W.P.Nos.26577 & 34781 of 2021 14 were found to be satisfactory and therefore, his services were again reengaged through an outsourcing agency. Therefore, without assigning any reason, it cannot be held that the petitioner has not been rendering any service satisfactorily and that his services can be terminated and replaced by another temporary employee.
20. In view of the same, the respondents are directed to reinstate the petitioner into service with all consequential benefits.
21. Both the Writ Petitions are accordingly allowed. No order as to costs.
22. Pending miscellaneous petitions, if any, in both these Writ Petitions shall stand closed.
___________________________ JUSTICE T. MADHAVI DEVI Date: 21.12.2023 Svv