Telangana High Court
T.Shyam Sunder Kalidas, vs The State Of Telangana State, on 27 August, 2024
Author: Nagesh Bheemapaka
Bench: Nagesh Bheemapaka
HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
WRIT PETITION No. 34260 OF 2014
O R D E R:
Proceedings dated 14.10.2014 whereby and whereunder the 3rd respondent - M/s Jyothi Computer Services replaced petitioner with the 4th respondent, is called in question in this Writ Petition. Consequential direction to the respondents to continue the services of petitioner as Data Entry Operator with all consequential benefits is sought.
2. Brief facts of the case are : Government of Andhra Pradesh issued G.O.Rt.No. 730, Home (Services-III) Department, dated 28.05.2005 sanctioning seven posts of Computer Operator at Director General Special Protection Force, Hyderabad - 2nd respondent with a consolidated remuneration of Rs.4,000/- per month for each operator. On 23.08.2006, the 3rd respondent addressed letter to the 2nd respondent that it was sponsoring the candidates for appointment to the post of Data Entry Operator in the Department, pursuant to which, the latter issued proceedings dated 09.10.2006 appointing petitioner and others on contract basis on consolidated pay and advised them to report to duty. It is stated, due to financial problems and other personal reasons, 2 petitioner submitted his resignation on 18.01.2008 and obtained service certificate for the period from 01.09.2006 to 10.01.2008.
It is stated, thereafter, knowing that vacancies were available in the 2nd respondent, petitioner approached with earlier certificate issued by the department; after considering the same, he was re-appointed and attached to the 2nd respondent on 06.11.2008. The 2nd respondent issued letter dated 20.09.2014 to the 3rd respondent calling for the details of computer / data entry operators who were appointed on contract basis during the period 21.08.2014 to 20.09.2014 and their attendance wherein petitioner figured at Sl.No.2. However, the grievance of petitioner is that, while he was discharging his duties as Data Entry Operator, without assigning any reasons or issuance of notice or charge memo, the 3rd respondent issued the impugned proceedings deputing the 4th respondent in the place of petitioner with effect therefrom.
3. Petitioner had taken out I.A.Nos. 1 and 2 of 2022; one seeking to amend the cause title and the other to implead Sri Ch. Satyanarayana alleging that he was appointed as Data Entry Operator contrary to the principle 'last come first go'. Both the Applications were ordered by order dated 15.06.2022. 3
4. The 2nd respondent filed the counter, gist of which is that petitioner has not been consistent in performing to the satisfactory levels; he has no required qualifications to perform the tasks assigned, however, service certificate issued by them was not disputed. It is stated that petitioner's joining and re- joining with their office was only through the 3rd respondent agency; neither their department nor the State Government has any role in the employment of petitioner with the 3rd respondent. He is not a direct employee, hence no cause of action shall lie against neither the 1st nor the 2nd respondent before this Court and there is no privity of contract between petitioner and State Government. According to this respondent, as per para 7 of G.O.Ms.No. 94, General Administration (Services A) Department, dated 28.03.2003, it has been provided that the department shall reserve its right to seek replacement of personnel from the outsourcing agency if they found the personnel's performance unsatisfactory. This department, after finding the services of petitioner poor and not meeting the expectations, sought for replacement from the outsourcing agency and in compliance to the same, the 3rd respondent provided with a suitable replacement. This respondent stresses that the impugned proceedings were issued by the 3rd respondent, hence, making this department and the State 4 Government as parties to the present proceedings is not relevant.
5. Heard Smt. K. Udaya Sri, learned counsel for petitioner as well as Sri A.K. Jayaprakash Rao, learned counsel for the 3rd respondent and learned Government Pleader for Home.
6. Petitioner laid his claim based on the service certificate issued by the 2nd respondent and contends that without issuing any notice and without assigning any reason, he was replaced with the 4th respondent. On the other hand, the case of Respondents 2 and 3 is that in view of the poor performance of petitioner, he was replaced with the 4th respondent on outsourcing basis. Along with the counter, the 2nd respondent annexed G.O.Ms.No. 94, dated 28.03.2003, which laid down new recruitment policy and guidelines. Annexure 2 attached thereto specified the guidelines for outsourcing of support services, Para 7 of which deals with 'terms and conditions of outsourcing contract' which postulates that the departments shall also reserve the right to demand change of equipment / personnel if their services are not found to be satisfactory, in addition to levying penalties as per the terms and conditions of the contract. If the service continues to be unsatisfactory, the Department / competent authority shall 5 exercise its right to not only recover damages but also to terminate the contract and replace the service provider with an agency kept in the reserve.' G.O.Rt.No. 815, dated 13.02.2007 was also found annexed with the counter, which states that for the post of Data Entry Operator, the candidates shall possess the qualifications 'Computer Application and Basics of DOS, Windows, UNIX, DB Management, DTP, Concepts of e- Governance including e-mail, e-Commerce, Internet, Computer Viruses, MS Office (Word, Excel, Power point etc.) in Diploma standard. The 3rd respondent in his counter stated that the 2nd respondent found that petitioner did not possess the required minimum qualification, hence, he was replaced with the 4th respondent. In view of the above, the action of the respondents cannot be said to be illegal or arbitrary. Further, the judgment relied on by the learned counsel for petitioner in Manish Gupta v. President, Jan Bhagidari Samiti 1 which held that an ad hoc employee cannot be replaced by another ad hoc employee and he can be replaced only by a candidate who is regularly appointed by following a regular procedure prescribed, cannot be made applicable to the facts of the case.
7. Another contention advanced by the learned counsel for the 3rd respondent is that Writ Petition itself is not 1 (2022) 15 Supreme Court Cases 540 6 maintainable as this respondent is a private agency and it is not an instrumentality of the State. This contention was fortified by the Hon'ble Supreme Court in a catena of cases that private entity is not the instrumentality of the State and no writ petition lies against them. The 2nd respondent also in their counter emphasized that the proceedings under challenge was issued by the 3rd respondent and neither themselves nor the State Government has any role to play. Admittedly, the 2nd respondent entered into a contractual agreement with the 3rd respondent outsourcing agency for supply of man power subject to certain terms and conditions. One such, at the cost of repletion is that, as per Annexure-2 to G.O.Ms.No. 94, dated 28.03.2003, they reserve right to demand change of equipment / personnel if their services are not found to be satisfactory. As the services of petitioner were not up to the expectations, sought for replacement and in compliance with the same, the 3rd respondent provided with a suitable replacement. As is evident, the 2nd respondent has no direct nexus with petitioner, who has been employed by the outsourcing agency, hence no cause of action lies against them and there is no privity of contact between petitioner and State Government.
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8. For the reasons stated supra, the Writ Petition is misconceived and is liable to be dismissed. The Writ Petition is accordingly, dismissed. No costs.
9. Consequently, miscellaneous Applications, if any shall stand closed.
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NAGESH BHEEMAPAKA, J 27th August 2024 ksld