Telangana High Court
Elagurthi Rajender vs State Of Telangana on 7 February, 2022
Author: B. Vijaysen Reddy
Bench: B. Vijaysen Reddy
HONOURABLE SRI JUSTICE B. VIJAYSEN REDDY
WRIT PETITION Nos.3276, 3972 AND 4057 OF 2019
AND 41907 of 2018
COMMON ORDER:
In all these writ petitions, grievance of the petitioners and the issue involved is common, as such, they are being disposed of by this common order.
2. These writ petitions are filed aggrieved by the action of the Telangana State Public Service Commission (for short 'TSPSC') in not granting service weightage marks for the services rendered by the petitioners in their respective posts on outsource basis while considering their candidature to the post of Radiographers as per Paragraph - VIII of Recruitment Notification No.59 of 2017 dated 08.11.2017 (W.P. Nos.3276 and 4057 of 2019); to the post of Pharmacist Grade - II as per the Notification No.4/2018 dated 25.01.2018 (W.P. No.3972 of 2019); to the post of Lab Technician Grade - II as per Notification No.67 of 2017 dated 18.12.2017 (W.P. No.41907 of 2018), issued by TSPSC. 2
(i) In W.P. No.41907 of 2018, the petitioners are also aggrieved by the action of the respondents in not regularising their services as per the principles laid down by the Hon'ble Supreme Court in Secretary, State of Karnataka v. Umadevi1, Oil and Natural Gas Corporation Limited v. Petroleum Coal Labour Union2, and the decision of this Court in W.P. No.18988 of 2014 and batch in Gade Basaveswara Rao v. Government of Andhra Pradesh3.
3. (i) The petitioners in W.P. No.3276 of 2019 are possessing certificate of Radiology Assistant registered with Para- Medical Board and are working as Radiographers in the Government Hospital viz., Rajiv Gandhi Institute of Medical Sciences, Adilabad, (RIMS) for more than eight (8) years on outsourcing basis;
(ii) the petitioners in W.P. No.3972 of 2019 are possessing Diploma in Pharmacy registered with Pharmacy Council and are working as Pharmacists Grade - II in the Government Hospital viz., 1 2006(4) SCC 44 2 2015(6) SCC 494 3 2017 (6) ALD 447 3 M.G.M. Hospital, Warangal, Warangal District; in Primary Health Centre, Komalla, Jangaon District, erstwhile Warangal District, and also Primary Health Centre, Kalmalacheruvu, Suryapet District, erstwhile Nalgonda District; the petitioners have completed more than 18 years, 14 years, 12 years, 6 years and 16 years of continuous service respectively.
(iii) the petitioners in W.P. No.4057 of 2019 are possessing Diploma in Medical and Imaging Technology registered with Para Medical Board and are working as Radiographers / C.T. Scan Technologists in M.G.M. Hospital, Warangal; the petitioners have completed more than 15 years, 13 years and 11 years of continuous service respectively; and
(iv) the petitioners in W.P. No.41907 of 2018 are working continuously as Lab Technician Grade - II in Niloufer Hospital, Red Hills, Lakdikapool, Hyderabad, since 2006, 2009, 2013, 2010 and 2008 respectively.
4. The averments in W.P. No.3276 of 2019, which is treated as the lead case, are referred to for disposal of these matters. 4
5. The petitioners state that they are possessing Certificate of Radiology Assistant registered with Para-Medical Board and working as Radiographers at RIMS, Adilabad for more than eight years on outsourcing basis. Notification No.59/2017 dated 08.11.2017 was issued by respondent No.2 to fill up 35 vacancies of Radiographer posts in the department of respondent No.2. The said posts were notified as zonal posts.
(a) The scheme of examination is written examination with 150 marks equivalent to 70 points, 20 points equivalent to 20 marks for service weightage and 10 points equivalent to 10 marks for qualification weightage.
(b) The qualifying points in the written examination for the Other Castes (OCs) is 40% of 70 points i.e., 28 points, for the Backward Classes (BCs) 35% of 70 points i.e. 24.5 points and for Scheduled Castes (SCs), Scheduled Tribes (STs) and Physically Handicapped (PHs) is 30% of 70 points i.e. 21 points. The service weightage and qualification weightage are awarded in marks as per eligibility and entitlement in Para - VIII of the Notification. 5
(c) The petitioners have applied for the above said post duly uploading their experience certificates issued by the RIMS, Adilabad, and have appeared for written examination on 11.05.2018. They have uploaded their experience certificate in the prescribed format. Respondent No.3 has published a combined merit list of Zone - V & VI.
(d) The petitioners have secured 31.743, 30.848, 32.657 and 28.867 points in the written examination, but no weightage points for service and qualification were awarded. On noticing that the petitioners were not awarded weightage points for their experience and qualification, they have submitted representations to respondent Nos.1 to 3 on 08.01.2019 requesting to add weightage points to their merit and place them accordingly in the merit list. Respondent No.3 has published remarks, on their representation, on 09.02.2019 in the website stating that qualification weightage marks is added and as per the Director, Public Health and Family Welfare Department; candidate is not eligible for service weightage marks.
6
(e) The petitioners submit that as per the remarks of TSPSC, further ten (10) points were added to their points secured in the written examination taking their total points excluding service weightage to 41.743, 40.848, 42.657 and 38.867 respectively. However, the petitioners state that no reasons were assigned in the web-note as to why their service rendered in the Government Hospital is not eligible for service weightage. The petitioners state that impugned action of the respondents in not awarding weightage points for service rendered by them in the Government Hospital is arbitrary, illegal and violative of Articles 14, 16 and 21 of the Constitution of India.
(f) It is submitted that the action of the respondents in not awarding weightage marks for the petitioners' experience in outsourced job has no nexus to the object sought to be achieved.
6. The case of the respondents, as averred in their counter affidavit, is that common order dated 19.03.2019 was passed in W.P. No.2823 of 2019 and batch directing respondent No.3 to treat the case of the petitioners therein for granting weightage marks for 7 the services rendered by them on contract basis and outsourcing basis. The petitioners herein are working on outsourcing basis. The Government vide G.O. Ms. No.166, HM&FW (B1) Department, dated 09.09.2017, have accorded permission to fill up vacancies of various categories in Health, Medical and Family Welfare Department including Radiographers through direct recruitment by the TSPSC, Hyderabad duly mentioning the selection process. The procedure for selection process is as under:
"i. The selection of the posts will be based on the marks obtained in the written test to be conducted by TSPSC and the work experience in the proportion of Seventy (70%) and Thirty (30%) respectively.
ii. The Selection will be strictly based on merit and there will be no interview.
iii. The remaining Thirty (30) marks, Ten (10) marks will be for seniority in terms of passing the qualifying examination.
iv. The remaining Twenty (20) marks will be awarded for Govt. Service on contract basis."8
7. Accordingly, the TSPSC, Hyderabad has issued Notification No.59/2017 dated 18.11.2017 for filling up of Radiographer posts in Health and Family Welfare Department. As per G.O. Ms. No.166, Health, Medical and Family Welfare (B1) Department dated 09.09.2017, it was clearly mentioned in the notification that weightage marks will be awarded for Government Service on contract basis only. The petitioners have not been appointed on contract basis. Their services have been hired through outsourcing agencies. The Government has been permitting appointments on contract basis as well as on outsourcing basis to effectively cater to the needs of the departments. In case of contract appointments, they are being made by the concerned departments as per the terms of the contract, whereas under outsourcing, the responsibility of the supplying required manpower is through different outsourcing agencies duly identified. The outsourced employees can be replaced normally on the grounds of dissatisfactory service, indiscipline and more importantly cessation of the need as determined by the employer. The procedure as prescribed for 9 regular employee should be followed during contract employees appointments i.e., issuing notification, calling applications from the eligible candidates, verifying the qualification and marks secured by the candidates, preparation of merit list, finalising the selection list as per merit duly following the rule of reservation with the approval of the District Selection Committee headed by the concerned District Collectors. Whereas, for outsourced employees, the above mentioned recruitment procedure is not followed. The responsibility of supplying the required manpower is through different outsourcing agencies duly identified. All the outsourcing manpower is being supplied by the different outsourcing agencies without following the above recruitment procedure. Hence, the petitioners who are working on outsourcing basis are not entitled for awarding weightage of service marks in the regular recruitments. Moreover, no weightage marks were awarded to the outsourced employees in the earlier recruitments.
8. Heard Mr. S. Rahul Reddy, learned counsel for the petitioners in W.P. No.3276 of 2019; Mr. S. Satyanarayana Rao, learned counsel for the petitioners in W.P. Nos.3972 and 4057 of 10 2019; Mr. Ch. Ganesh, learned counsel for the petitioners in W.P. No.41907 of 2018; Mr. D. Balakishan Rao, learned Standing Counsel for TSPSC; Mr. A. Sanjeev Kumar, learned Special Government Pleader, and the learned Government Pleader for Medical and Health for the respondents; and perused the material on record.
9. To decide whether benefit of weightage marks can be extended to outsourced employees, the point that falls for consideration is whether there is any difference in the nature of work performed by the contract employees and the outsourced employees?
10. It is the case of the TSPSC that in case of contract employees, they are subjected to recruitment process and minimum eligibility conditions are prescribed. The contract employees are appointed in terms of Rule 9(b) of the State and Subordinate Service Rules 1996. The Government has issued departmental guidelines i.e., details of service rules, qualifications, procedure for selection etc., in Paragraph No.4 of G.O. Ms. No.166 dated 11 09.09.2017 in relaxation of Rule 9(b) of the State and Subordinate Service Rules 1996. However, same recruitment procedure is not followed for outsourced employees. In this regard, it is to be seen whether there is any restriction for any department / entity of the Government to appoint employees on outsourcing basis or contract basis, as the case may be. It is not the case of the Government that the nature of duties entrusted to the contract workers is different from that of outsourced employees. There is nothing in the counter to say that the duty which is performed by a contract employee is not performed by an outsourced employee. As seen from the record, the contract employees are appointed directly, whereas the outsourced employees are appointed through outsourcing agencies. In case of contract employment, there is a direct relationship between the employer (RIMS) and the employee. In case of outsourced employees, there may be no direct relationship between them as the outsourcing agent is the intermediary. However, the outsourced employees are under the direct control of the RIMS and may be salary is received through the outsourcing agent, which again is paid by RIMS. It cannot be denied that the work that 12 would be done by the outsourced employees is the same as that of the contract employees. To be more precise, if RIMS had chosen to appoint Radiographers on contract basis, their work would be same as that of the outsourced employees (petitioners).
11. The main point urged by Mr. D. Balakishan Rao, learned Standing Counsel for TSPSC, is that the contract employees are appointed through recruitment process. However, it needs to be noted that the outsourced employees also have to satisfy the minimum eligibility criteria. It is not as if a person who is not qualified as a Radiographer is appointed as an outsourced employee. Thus, in the absence of any material to show that the outsourced employee is less qualified compared to the contract employee, this Court holds that both the outsourced employees and the contract employees have got same qualification and discharge same nature of duties entrusted to them. The only difference is nature of appointment which cannot be a ground to treat them differently.
13
12. In W.P. No.3276 of 2019 and W.P. No.4057 of 2019, the petitioners have been appointed as radiographers on outsourcing basis. They are aggrieved by the action of respondents in not awarding them weightage marks pursuant to notification No.59 of 2017 dated 08.11.2017 relating to appointment of radiographer. Though it is contended by petitioner Nos.1 to 4 that they were appointed on contract basis, the respondent No.2 denied such contention in their counter affidavit and it was stated that the petitioners were appointed on outsourcing basis. No rejoinder is filed by the petitioner disputing such claim in the counter-affidavit. There is no document filed to substantiate that the petitioners are appointed on contract basis. Hence, it is inferred that the petitioners are appointed on outsourcing basis.
13. In W.P. No.3972 of 2019, the petitioners have applied to the post of Pharmacists Grade - II pursuant to notification No.4/2018 dated 25.01.2018 issued by the respondents. There are six (6) petitioners and in the affidavit, it is stated that the petitioner Nos.1 to 4 were appointed on contract basis and petitioner Nos.5 and 6 were appointed on outsourcing basis. The relief sought in 14 the writ petition is aggrieved by the action of the respondents in not awarding weightage marks on contract / outsource basis. In the counter of the respondents, it was stated that petitioner Nos.1 to 3 were appointed on contract basis and services of petitioner Nos.4 to 6 have been hired through outsourcing agencies. However, it is stated that the petitioners have not uploaded their certificates within the stipulated time as provided in the notification. It is pertinent to point out here that petitioner No.1 was appointed as Pharmacist Grade - II on contract basis while petitioner Nos.4 to 6 were appointed on outsourced basis in M.G.M. Hospital, Warangal. The same is evident from the description of the petitioners in the cause title which is not controverted by the respondents in their counter. Thus, it is very much clear that the Government Departments/Hospitals did not have any specific policy for appointing outsourced employees instead of contract employees and those appointments were made as a matter of convenience.
14. W.P. No.41907 of 2018 is filed seeking to declare action of the respondents in not regularising services of the petitioners as per the principles of law laid down by the Hon'ble Supreme Court 15 in Uma Devi's case (Supra 1) Petroleum Coal Labour Union's case (Supra 2). The case of the petitioners is that they have been working as Lab Technicians Grade-II in Niloufer Hospital, principal employer, on outsourcing basis. While petitioner Nos.1 to 3 have been working since 2006, 2009 and 2013 respectively, petitioner No.4 has been working since 2010 and petitioner Nos.5 and 6 have been working since 2008. That all the petitioners have been getting monthly salary of Rs.17,500/-. The petitioners rely on the decision of this Court in Gade Basaveswara Rao's case (Supra 3)
15. Under G.O. Ms. No.166, Health, Medical and Family Welfare (B1) Department, dated 09.09.2017, the Government granted permission to various authorities to fill up vacancies of various categories in Health, Medical and Family Welfare Department through direct recruitment. The relevant clause (e) of Paragraph No.IX, which deals with the procedure for selection in category wise, is as under:
16
"e) The remaining twenty (20) marks will be awarded for Govt. Service on contract basis duly assigning the following value:
i) Service in the Tribal area - 4 marks / 6 months service
ii) Rural Area 2 marks / 6 months (GP & Grade-III, II - service Municipalities)
iii) Urban Area (Corporations 1 mark / 6 months & service Grade-I Municipalities"
16. Sri D. Balakishan Rao, learned standing counsel for TSPSC, submits that in paragraph No.4 of G.O. Ms. No.166, the procedure / guidelines for selection are prescribed in relaxation of Rule 9 (b) of the State and Subordinate Service Rules 1996 duly superseding the earlier orders issued in G.O. Ms. No.65, Health, Medical and Family Welfare (B1) Department, dated 18.05.2017. The learned standing counsel further submits that G.O. Ms. No.166 was upheld by the Full Bench of this Court by the decision in W.P. No.40157 of 2017 dated 09.09.2017. The learned counsel refers to following paragraph Nos.99 to 103 and 125 of the judgment which are under:
17
"STATE SERVICE:
99. A bare perusal of the Special Rules and in the General Rules clearly reveal that there is no provision made for assigning weightage to contract service. Unless Service Rules prescribe computation of temporary service in the process of regular recruitment, no person, working on temporary basis, can insist, as a matter of right, to assign weightage to temporary service rendered by him/her. Therefore, no person can seek mandamus to assign weightage to contract service.
In fact, in the absence of provision in the Service Rules, the employer alone has the discretion to grant weightage to such service while making regular recruitment to the same post. As noticed above, the competency of an employer to assign weightage to temporary service is recognized in law.
100. Interestingly, the State Government has not assigned weightage marks to all its employees in the different departments. For example, the temporary 74 employees in the Agriculture Department have not been assigned any weightage marks. But while resorting to regular recruitment, it has assigned weightage marks to temporary service in the Health, Medical and Family Welfare Department and the AYUSH Department. Thus, 18 discretion is exercised in the above manner, supported by reasons. It has assigned weightage to temporary service rendered in a particular post in the State Government service, and has not made it as a general proposition to extend weightage to experience gained by a person in any other service.
101. The power to relax the rigors of the Rules is a discretionary power given by an enabling provision of law. Therefore, the employer is legally justified in granting the benefit of weightage to particular class of employees within a given department. Since it is an enabling provision, since it is a discretionary power, those who are outside the department cannot claim that a mandamus be issued in their favour for directing the State to grant them the benefit of weightage as well.
102. In the State Government service, granting weightage to temporary service would serve twin objectives: firstly, it enables a temporary employee, who has been serving the State Government for a long time, in the same post, against which process of regular recruitment is now initiated, to seek permanent employment; secondly, it enables the State Government to 19 secure the services of persons who have been working in the same post for a considerable time and who have gained field experience in the same post, as compared to a raw recruit. Thus, the crucial link to granting weightage to contract service is working on temporary basis in the post and gaining work experience of the post against which regular recruitment process is initiated.
103. In addition to the twin objectives mentioned above, it is pertinent to note that these contract employees have been working for a long time. Present recruitment is against posts occupied by them. If recruitment is finalized, there is every possibility of the contractual employees being displaced unless they are 75 provided opportunity to compete. The same cannot be said of Staff Nurses working in the Society as present recruitment does not cover those posts."
"125. This issue is answered as under: (i) Government service: (a) If the Service Rules/policy decisions do not provide weightate (Sic. weightage) to contract service/service on outsourcing basis, no temporary employee can assert that his temporary service should be reckoned in the selection process for direct recruitment; 83 (b) If no provision is made in the 20 Service Rules/policy decisions, it is for the employer to extend weightage to temporary service while making regular recruitment; (ii) Power Utilities: The Settlements entered into by the managements to provide weightage to service rendered on contract basis/on outsourcing basis confers right to all those temporary employees governed by the Settlements and claim weightage marks for such service and the Power Utilities Companies are bound to provide weightage marks. However, it is clarified that even though Settlement dated 18.12.2010 fixed maximum weightage marks as 45, the same was reduced to 20 marks in view of the judgment of learned Single Judge dated 09.12.2013 in W.P.No.3753 of 2012 and batch, affirmed by the first Division Bench. (iii) State Government service and service in Power Utilities Companies: (a) While extending weightage to temporary service it is permissible for the employer to prescribe parameters and to restrict grant of such weightage to a class of people, or to people working with that employer/ service in a particular post, if necessary etc. Therefore, no person has a right to claim weightage to temporary service as a matter of course; (b) It is for the employer to make an assessment of job requirements of a post in its service; it is open to the employer to refuse to 21 grant weightage to temporary service rendered in a post, within its employment or outside."
17. The learned standing counsel for TSPSC has further submitted that this Court through the judgment in W.A. Nos.146 to 149 of 2001 dated 25.08.2021 held that there is no scope for interpreting the notification in the manner sought to be advanced on behalf of the petitioners and that there is no ambiguity in the notification. Reliance is also placed on the judgments of the Hon'ble Supreme Court in Ranjan Kumar v. State of Bihar4 in Maharashtra Public Service Commission v. Sandeep Shriram Warade's (Civil Appeal No.4597 of 2019)5.
(i) In Ranjan Kumar's case (Supra 4), it was held as under:
"13. The next submission which has been presented before us is that when the respondents had appeared in the interview knowing fully well the process, they could not have resiled later on or taken a somersault saying that the procedure as adopted by the department was vitiated. In this connection, it is apt to refer to the principle stated 4 Civil Appeal Nos.4455-4458 of 2009 5 2019 (6) SCC 362 22 in Om Prakash Shukla v. Akhilesh Kumar Shukla and others [1986 (Supp) SCC 285], in the said case a three-Judge Bench, taking note of the fact that the petitioner in the writ petition had appeared for the examination without protest and filed the petition only after he realized that he would not succeed in the examination, held that the writ petitioner should not have been granted any relief by the High Court."
(ii) In Sandeep Shriram Warade's case (Supra 5), it was held as under:
When an advertisement stipulates a particular qualification as the minimum qualification for the post and further stipulates that preference should be given for higher qualification, the only meaning it conveys is that some additional weightage has to be given to the higher qualified candidates. But by no stretch of imagination it can be construed to mean that a higher qualified person automatically is entitled to be selected and appointed. In this view of the matter, the High Court in our considered opinion was wholly in error in holding that a M.D.S. qualified person like Respondent 1 was entitled to be selected and appointed when the Government indicated in the 23 advertisement that higher qualification person would get some preference. The said conclusion of the High Court, therefore, is wholly unsustainable and must be reversed."
18. Learned counsel for the petitioners relied on the orders passed by the learned single Judge of this Court in W.P. No.47675 of 2018 dated 07.08.2020 between G. Srinivasa Chary v. State of Telangana6 and Atlur Krishnaiah v. The Chairman, Andhra Pragathi Grameena Bank, Head Office, Kadapa7.
19. Under G.O. Rt. No.4271 dated 01.11.2008, the Government issued comprehensive guidelines to the departments to pay remuneration to the contract / outsourcing employees on the first of every month and to avoid confusion regarding selection of outsourcing agencies, payment of remuneration, and deductions to be made from the contract / outsource employees. It was specified that Head of Office or Department who is the principal employer should get permission from the Government in Finance (SMPC) Department, to engage for outsourcing the services. Payment of remuneration was also specified in Paragraph No.II of the said 6 2018 SCC ONLINE HYDERABAD 1850 7 2017 SCC ONLINE HYDEARBAD 172 24 G.O. based on and not exceeding the minimum time scale attached to equivalent category for which they are proposed to be contracted / outsourced. Para II (ii) further stresses that the department shall ensure that the remunerations of contract / outsource employees shall be paid on first of every month. Paragraph No.II(v) lays down that remuneration to contract / outsourced persons to be paid as fixed by the Government in full duly deducting the employees contribution towards E.P.F., E.S.I. etc.
20. G.O. Ms. No.13 dated 01.07.2014 was issued to continue services of the employees appointed on contract / outsourcing basis as on 02.06.2014 (appointed day under the Andhra Pradesh Reorganisation Act, 2014 when State of Telangana came into existence.) It was clarified in G.O. Ms. No.13 that the services of the employees appointed on contract / outsourcing basis with prior approval of Finance Department and working as on 02.06.2014, shall be extended until further orders or till the actual need ceases whichever is earlier subject to the terms and conditions specified therein. It was further clarified that the orders are applicable only to those persons directly contracted by the 25 Government Departments and persons whose services have been procured from third party with the prior concurrence of the Finance Department.
21. Under G.O. Ms. No.14, Finance (HRM-I) Department, dated 19.02.2016, the remuneration for contract / outsourced services has been enhanced. It is pertinent to mention, by this G.O., uniform remuneration was fixed for both contract and outsourced employees. Thus, it can be inferred that there is no difference in the nature of duties performed by the contract and outsourced employees. This is amply demonstrated by the fact situation in W.P. No.3972 of 2009 wherein MGM Hospital, Warangal appointed petitioner Nos.1 to 3 on contract basis and petitioner Nos.4 to 6 on outsourcing basis to the post of Pharamacist Grade - II.
22. On a reading of G.O. Ms. Nos.4271 dated 01.11.2008, G.O. Ms. No.13 dated 01.07.2014 and G.O. Ms. No.14 dated 19.02.2016, it becomes very clear that the Government did not have any specific policy as to the categories of employees to be 26 recruited on contract basis or outsourced basis. Even in the counter filed by the TSPSC, nothing stated regarding restriction for any particular department for recruiting employees on outsource basis.
23. As discussed in paragraph No.10 supra, the only difference is the mode of employment. So far as the services rendered by them, qualification, remuneration etc., are concerned, there is no difference nor the Government treated them differently at any point of time. In the order in G. Srinivasa Chary's case (Supra 6), the learned single Judge of this Court dealt with the issue regarding payment of minimum time scales for the employees of Greater Hyderabad Municipal Corporation (GHMC) appointed through outsourcing agencies. The stand of the GHMC that the petitioners therein are outsource workers of GHMC engaged through an outsourcing agency, but not from GHMC directly and that the outsourcing agencies are responsible for payment of wages to the manpower and not the GHMC was rejected by the learned single Judge.27
24. In paragraph No.69 of the judgment in G. Srinivasa Chary's case (Supra 6), the learned single Judge made the following observations;
"As already held by me, the introduction of an intermediary/agency/contractor between the GHMC and the outsourced employees like the petitioners is only a device/camouflage adopted by the GHMC to exploit the petitioners by denying them benefits available to regular employees such as a scale of pay, leave, medical benefits, promotions, increments and other service benefits and the GHMC cannot be allowed to perpetuate this violation of the law."
and ultimately it was held that the petitioners therein who are appointed on outsource basis are entitled to minimum time scale pay attached to equivalent posts and they are entitled to regularisation of their services as per the law laid down by the Supreme Court in Uma Devi's case (Supra 1).
25. Article 14 of the Indian Constitution permits reasonable classification. However, such classification must be founded on intelligible differentia which must have rational relation to the 28 object sought to be achieved. The Government and the Public Service Commission have not been able to convince this Court that the employees appointed on contract basis and those appointed on outsource basis form different class and have to be treated differently. This Court holds that the appointments are made as a matter of convenience either on contract basis or outsourcing basis. In case of outsourcing basis, purportedly, it is only to meet temporary requirement of the employer. It is an undeniable fact that the mode of employment is resorted to by the Government taking into account several factors including finance implications towards salaries of such employees. Even for that matter, in case, the respondents intended to appoint the petitioners on contract basis, they would have been fully eligible to take up such employment. If RIMS wanted, they could have appointed the petitioners on contract basis also. Having availed services of the petitioners, it would be arbitrary, unjust and discriminatory to hold that they are not entitled to claim service weightage merely because they are appointed on outsourcing basis in contrast to the employees appointed on contract basis. The action of the 29 respondent is arbitrary and does not stand the test of equality guaranteed under Article 14 of the Constitution of India.
26. Mr. D. Balakishan Rao, learned Standing Counsel for TSPSC, and Mr. A. Sanjeev Kumar, learned Special Government Pleader, submitted that G.O. Ms. No.166 was issued relaxing Rule 9 of Andhra Pradesh State and Subordinate Service Rules, 1996 (for short 'Subordinate Service Rules'). According to both the learned counsel, the appointments of contract employees are made in terms of Rule 9 of Subordinate Service Rules by subjecting them to selection process similar to the regular selection. Hence, their appointments have to be treated as being in accordance with the statutory rules. Taking the same into consideration, weightage marks have been given only to the contract employees. Whereas the appointment of outsource employees is not in accordance with the Subordinate Service Rules. Their appointments were not in terms of Rule 9 of Subordinate Service Rules. Such contention of the learned counsels is without any merit. As there is no clear policy of the State as to the basis on which contract employees and outsourcing employees have to be appointed, this Court is of the 30 view that such appointment of outsourced employees is made only as a camouflage to avoid payment of minimum wages and to escape from their responsibilities in extending service benefits, otherwise given to the contract employees. The petitioners who are appointed as Radiographers have regular duties to perform. The duty assigned to them is regular in nature. It is not as if services of the petitioners and similarly situated persons are required for temporary period.
27. In Hussainibhai v. Alath Factory Thozhilali Union, Kozhikode8, it was held as under:
"3. Who is an employee, in Labour Law? That is the short, die-hard question raised here but covered by this Court's earlier decisions. Like the High Court, we give short shift to the contention that the petitioner had entered into agreements with intermediate contractors who had hired the respondent-Union's intermediate workmen and so no direct employer-employee vinculum juris existed between the petitioner and the workmen.8
1978 (4) SCC 257 31
4. This argument is impeccable in laissez faire economics 'red in tooth and claw' and under the Contract Act rooted in English Common Law. But the human gap of a century yawns between this strict doctrine and industrial jurisprudence. The source and strength of the industrial branch of Third World Jurisprudence is social justice proclaimed in the Preamble to the Constitution. This Court in Ganesh Beedi's case (1974) 4 SCC 43 has raised on British and American rulings to hold that mere contracts are not decisive and the complex of considerations relevant to the relationship is different. Indian Justice, beyond Atlantic liberalism, has a rule of law which runs to the aid of the rule of life. And life, in conditions of poverty aplenty, is livelihood, and livelihood is work with wages. Raw societal realities, not fine- spun legal niceties, not competitive market economics but complex protective principles, shape the law when the weaker, working class sector needs succour for livelihood through labour. The conceptual confusion between the classical law of contracts and the special branch of law sensitive to exploitative situations accounts for the submission that the High Court is in error in its holding against the petitioner.32
5. The true test may, with brevity, be indicated once again. Where a worker or group of workers labours to produce goods or services and these goods or services are for the business of another, that other is, in fact, the employer. He has economic control over the workers' subsistence, skill, and continued employment. If he, for any reason, chokes off, the worker is, virtually, laid off. The presence of intermediate contractors with whom alone the workers have immediate or direct relationship ex contractu is of no consequence when, on lifting the veil or looking at the conspectus of factors governing employment, we discern the naked truth, though draped in different perfect paper arrangement, that the real employer is the Management, not the immediate contractor. Myriad devices, half-hidden in fold after fold of legal form depending on the degree of concealment needed, the type of industry, the local conditions and the like, may be resorted to when labour legislation casts welfare obligations on the real employer, based on Articles 38, 39, 42, 43 and 43-A of the Constitution. The court must be astute to avoid mischief and achieve the purpose of the law and not be misled by the maya of legal appearances."33
28. In Nihal Singh v. State of Punjab9, it was held as under:
"17. From the mere fact that the payment of wages came from the bank at whose disposal the services of each of the appellants was kept did not render the appellants employees of those banks.
The appointment is made by the State. The disciplinary control vests with the State. The two factors which conclusively establish that the relationship of master and servant exists between the State and the appellants. A fact which is clearly recognized by the Division Bench of the High Court in LPA No.209 of 1992. It may be worthwhile mentioning here that under the law of contracts in this country the consideration for a contract need not always necessarily flow from the parties to a contract. The decision of the SSP to reject the claim of the appellants only on the basis that the payment of wages to the appellants herein was being made by the banks concerned rendering them disentitled to seek regularization of their services from the State is clearly untenable.9
2013 (14) SCC 65 34
18. Coming to the judgment of the Division Bench of the High Court of Punjab & Haryana in LPA No.209 of 1992 where the claims for regularization of the similarly situated persons were rejected on the ground that no regular cadre or sanctioned posts are available for regularization of their services, the High Court may be factually right in recording that there is no regularly constituted cadre and sanctioned posts against which recruitments of persons like the appellants herein were made. However, that does not conclusively decide the issue on hand. The creation of a cadre or sanctioning of posts for a cadre is a matter exclusively within the authority of the State. That the State did not choose to create a cadre but chose to make appointments of persons creating contractual relationship only demonstrates the arbitrary nature of the exercise of the power available under Section 17 of the Act. The appointments made have never been terminated thereby enabling various banks to utilize the services of employees of the State for a long period on nominal wages and without making available any other service benefits which are available to the other employees of the State, who are discharging functions similar to the functions that are being discharged by the appellants.35
19. No doubt that the powers under Section 17 are meant for meeting the exigencies contemplated under it, such as, riot or disturbance which are normally expected to be of a short duration. Therefore, the State might not have initially thought of creating either a cadre or permanent posts.
20. But we do not see any justification for the State to take a defence that after permitting the utilisation of the services of a large number of people like the appellants for decades to say that there are no sanctioned posts to absorb the appellants. Sanctioned posts do not fall from heaven. State has to create them by a conscious choice on the basis of some rational assessment of the need."
29. This Court is of the view that the ratio laid down by the Hon'ble Supreme Court in Hussainibhai's case (Supra 8) and Nihal Singh's case (Supra 9), would apply to the facts of the present case. This Court therefore holds that mere appointment of employees on outsourced basis through an intermediary (contractor) cannot be a decisive factor to treat them differently from contract employees, for not extending weightage marks. 36
30. Under Article 41 of the Constitution of India, the State shall endeavour to make effective provision for securing the right to work, to education and to public assistance in cases of unemployment. The State and its instrumentalities have to be model employers. They are expected to act in a fair and transparent manner. Due to unemployment, there are socio economic problems prevailing everywhere. The respondents have availed services of the petitioner, may be, through an intermediary. The services of the petitioners were utilised by RIMS, MGM Hospital, Warangal, and Niloufer Hospital which are institutions of high repute. The State being a model employer cannot be permitted to take technical and extraneous pleas, as otherwise the same would run contrary to the philosophy under Article 41 of the Constitution of India.
31. In the opinion of this Court, the principle laid down by the Hon'ble Supreme Court in Ranjan Kumar's case (Supra 4) and Sandeep Shriram Warade's case (Supra 5) relied on by the respondents is not applicable to the facts of the case on hand. 37 The issue herein is regarding discrimination meted out to the outsourcing employees by denying them weightage marks for the services rendered by them while extending benefit of weightage marks to the contract employees. This Court is not concerned with the qualification prescribed in the notification or any issue incidental thereto. The ratio laid down by the Full Bench of this Court in W.P. No.40157 of 2017 and batch dated 18.09.2020 is also not applicable to the facts of the present case as the issue before the learned Full Bench, as pointed out in paragraph No.16, is only regarding the discretion available to the employer to extend benefit of weightage marks to a particular class of employees in a department. The claim of the outsourcing employees for weightage marks and similar treatment on par with contract employees which is the issue herein was not an issue before the learned Full Bench.
32. Mr. A. Sanjeev Kumar, learned Special Government Pleader, submits that this Court exercising jurisdiction under Article 226 of the Constitution of India does not have 38 jurisdiction to issue mandamus to direct the Government to extend benefit of weightage marks to the petitioners herein. If this Court grants relief to the petitioners, it may amount to altering the eligibility criteria and the same is not permissible under law. In that regard, the submissions of the learned Special Government Pleader are without any force.
33. This Court by directing weightage marks to be extended to the outsourced employees is not in any way altering the recruitment notification. Moreover, no mandatory direction is issued to the Government to do something which is not permissible under law. This Court is of the view that by applying the rule of reading down the statute, the term of "contract employees" mentioned in the recruitment notification shall be also read as "outsourced employees". The petitioners have not challenged the recruitment notification but have only laid a claim that weightage marks should be extended for the services rendered by them. At any rate, as held in several authoritative pronouncements, it should always be the endeavour 39 of the Courts, in a given situation, to ensure that provision of law or rule is made workable instead of striking down the same as held by the Hon'ble Supreme Court in paragraph No.35 of the judgment in Calcutta Gujarati Education Society v. Calcutta Municipal Corporation10. The point is accordingly answered.
34. For the aforesaid reasons, without any order as to costs, these writ petitions are allowed directing the respondents to award weightage marks to the petitioners for the service rendered by them on outsourcing basis on par with the contract employees pursuant to the subject notifications.
35. The petitioners in W.P. No.41907 of 2018 have also sought for a direction to consider their case for regularisation as per the judgment of the Hon'ble Supreme Court in Uma Devi's case (Supra 1) and Gade Basaveshwar Rao's case (Supra 3). However, as the main issue which has fallen for consideration is regarding award of weightage marks to the outsourced employees, this Court deems it appropriate to grant liberty to the 10 (2003) 10 SCC 533 40 petitioners in W.P. No.41907 of 2018 to file fresh writ petitions for claiming regularisation, if they are so advised, subject to outcome of selection process in the present recruitment notification.
As a sequel thereto, miscellaneous petitions, if any, pending in these writ petitions stand closed.
______________________ B. VIJAYSEN REDDY, J February 7, 2022.
NOTE: CC BY TODAY (BO) PV 41 IN THE HIGH COURT FOR THE STATE OF TELANGANA HYDERABAD *** WRIT PETITION Nos.3276, 3972 AND 4057 OF 2019 AND 41907 OF 2018 Between:
Elagurthi Rajender & others .. Petitioners v.
The State of Telangana, Rep. by its Principal Secretary Health, Medical and Family Welfare Department, Secretariat, Hyderabad & 3 others .. Respondents DATE OF ORDER PRONOUNCED: 07-02-2022 SUBMITTED FOR APPROVAL:
HON'BLE SRI JUSTICE B. VIJAYSEN REDDY
1. Whether Reporters of Local newpapers may be allowed to see the Judgments? : No
2. Whether the copies of judgment may be Marked to Law Reporters/Journals. : Yes
3. Whether Their Ladyship/Lordship wish to see the fair copy of the Judgment? : Yes ______________________ B. VIJAYSEN REDDY, J 42 * HONOURABLE SRI JUSTICE B. VIJAYSEN REDDY + WRIT PETITION Nos.3276, 3972 AND 4057 OF 2019 AND 41907 OF 2018 % Date: 07-02-2022 # Elagurthi Rajender & others .. Petitioners v.
$ The State of Telangana, Rep. by its Principal Secretary Health, Medical and Family Welfare Department, Secretariat, Hyderabad & others .. Respondents ! Counsel for the Petitioners : Mr. S. Rahul Reddy Mr. S. Satyanarayana Rao Mr. Ch. Ganesh ^ Counsel for the respondents : Mr. D. Balakishan Rao, SC for TSPSC Mr. A. Sanjeev Kumar, Spl. Govt. Pleader G.P. for Medical and Health < GIST:
> HEAD NOTE:43
? CASES REFERRED:
1. 2006(4) SCC 44
2. 2015(6) SCC 494
3. 2017 (6) ALD 447
4. Civil Appeal Nos.4455-4458 of 2009
5. 2019 (6) SCC 362
6. 2018 SCC ONLINE HYDERABAD 1850
7. 2017 SCC ONLINE HYDEARBAD 172
8. 1978 (4) SCC 257
9. 2013 (14) SCC 65
10. (2003) 10 SCC 533 C/15