Central Administrative Tribunal - Chandigarh
Gayatri Devi vs Jawahar Navodaya Vidyalaya on 28 January, 2025
1- O.A. No. 1090/2023
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
Pronounced on: 28.01.2025
Reserved on: 16.12.2024
CORAM: HON'BLE MR. SURESH KUMAR BATRA, MEMBER (J)
1. O.A. No. 060/1090/2023
1. Harchaaran Singh, Aged 34 years, S/o Sh. Kaur Singh, Mess Helper,
JNV Faridkot, R/o Maur Road, Hari Nau, Faridkot, Punjab-151204.
2. Amandeep Singh, Aged 33 years, s/o Sh. Gurcharan Singh, Mess
Helper, JNV Faridkot, R/o Near R.O. System, Lakhimireana, Khunana
Kalan, Sri Muktsar Sahib, Punjab-152112.
3. Jaswinder Singh, Aged 29 years, S/o Sh. Jagga Singh, Mess Helper,
JNV Faridkot, R/o Near Nasla Dairy, Masitan, Moga-142049.
4. Salinder Singh, Aged 39 years, S/o Sh. Major Singh, Mess Helper,
JNV Faridkot, R/o Near Bus Stand, Kauni, Faridkot, Punjab-1512012.
5. Jugraj Singh, Aged 36 years, S/o Sh. Jeet Singh, Mess Helper, JNV
Faridkot, R/o Village Gujjab Momara, Faridkot, Punjab.
(Group 'C' employees)
.... Applicants
By Advocate: Mr. R.K. Sharma
Versus
1. Commissioner, Navodaya Vidyalaya Samiti, B-15, Institutional Area,
Sector 62, Noida, Uttar Pradesh 201307.
2. Deputy Commissioner, Navodaya Vidyalaya Samiti, Regional Office,
Bay No. 26-27, Chandigarh-160030. Sector 31-A, Chandigarh-160030.
3. Principal, Jawahar Navodaya Vidyalaya, Village Kauni, Post Office
Jand Sahib, District Faridkot, Punjab 151212.
4. Manager, M/s Samrat Agency, C/o Deputy Commissioner, Navodaya
Vidyalaya Samiti, Regional Office, Bay No. 26-27, Sector 31-A,
Chandigarh-160030.
... .Respondents
By Advocate: Mr. Rishav Sharma for R- 1 to 3
Mr. Barjesh Mittal for R-4
2. Original Application No.060/1112/2023
Parsa Singh, Aged 33 years, S/o Sh. Veer Singh, Working as Security
Guard, JNV Faridkot. R/o Village Kauni, Faridkot, (Group C)
.... Applicant
By Advocate: Mr. R.K. Sharma
2- O.A. No. 1090/2023
Versus
1. Navodaya Vidyalaya Samiti through Commissioner, B-15, Institutional
Area, 62, Noida, Uttar Pradesh 201307. its Sector
2. Deputy Commissioner, Navodaya Vidyalaya Samiti, Regional Office,
Bay No. 26-27, Sector 31-A, Chandigarh-160030.
3. Principal, Jawahar Navodaya Vidyalaya, Village Kauni, Post Office
Jand Sahib, District Faridkot, Punjab 151212.
4. Manager, M/s Vision Security & Allied Services, C/o Deputy
Commissioner, Navodaya Vidyalaya Samiti, Regional Office, Bay No. 26-
27, Sector 31-A, Chandigarh-160030.
.....Respondents
By Advocate: Mr. Rishav Sharma for R- 1 to 3
Mr. Barjesh Mittal for R-4
3. Original Application No.063/844/2023
1. Amar S/o Kali Charan, 28 years, JNV Baniya Devi, The Arki,
Hardevpura, Solan, H.P. - 173207.
2. Geeta D/o Bhagat Ram, Village Badamal, Bhumti (374) Solan,
Himachal Pradesh - 173221.
.... Applicants
By Advocate: Mr. Harish Chandra
Versus
1. Union of India, through its Secretary, Human Resource &
Development, Department of Education, New Delhi. 127-c Shastri
Bhawan New Delhi-110001.
2. Commissioner, Navodaya Vidyalaya Samiti, B-15, Institutional Area,
Sector 62, Noida, Uttar Pradesh 201307.
3. Deputy Commissioner, Navodaya Vidyalaya Samiti, Regional Office,
Bay No. 26-27, Sector 31-A, Chandigarh-160030.
4. Principal, Jawahar Navodaya Vidyalaya, Solan, District Solan,
Himachal Pradesh-173207.
5. Manager, M/s SAP Skills & Staffing Private Limited, Shop No. 205,
Chandralok Tower Kapurthala, Lucknow.
... .Respondents
By Advocate: Mr. Sanjay Goyal, Sr. CGSC for R-1
Mr. Rishav Sharma for Respondents No. 2 to 4
4. Original Application No. 063/845/2023
1. Gayatri Devi, 56 years W/o Khem Raj Sharma, Tehsil Arki, Rampur,
Bhumati Arki Solan, H.P. 173221
3- O.A. No. 1090/2023
2. Ranjana Verma w/o Manohar Singh. Vill. Baniya Devi, Kunihar,
Solan, H.P.
3. Sunita Devi w/o Balbir, Village Dabla, Tehsil Ghumarvin, Dabla,
Dabla, Bilaspur, Himachal Pradesh-174021.
(Group 'C' employees).
.... Applicants
By Advocate: Mr. Harish Chandra
Versus
1. Union of India, through its Secretary, Human Resource &
Development, Department of Education, New Delhi. 127-c Shastri
Bhawan New Delhi-110001.
2. Commissioner, Navodaya Vidyalaya Samiti, B-15, Institutional Area,
Sector 62. Noida, Uttar Pradesh 201307.
3. Deputy Commissioner, Navodaya Vidyalaya Samiti, Regional Office,
Bay No. 26-27, Sector 31-A, Chandigarh-160030.
4. Principal, Jawahar Navodaya Vidyalaya, Solan, District Solan,
Himachal Pradesh-173207.
5. Principal, Jawahar Navodaya Vidyalaya, Kothipura, Bilaspur,
Himachal Pradesh-173207.
6. Manager, M/s SAP Skills & Staffing Private Limited, Shop No. 205,
Chandralok Tower Kapurthala, Lucknow.
... .Respondents
By Advocate: Mr. Sanjay Goyal, Sr. CGSC for R-1
Mr. Rishav Sharma Respondents No. 2 to 4
5. Original Application No. 063/846/2023
1. Rudra Shah S/o Kamal Shah, aged 41 years, JNV Baniya Devi, Hardev
Pura, Solan, H.P. 173207
2. Kavita W/o Shish Ram, Village Bawan Tehsil Arki, Hardev Pura, Solan,
H.P. 173207.
3. Pramod Kumar S/o Sh. Kanshiram, Batal, Solan, Himachal Pradesh,
173208.
(Group 'C' employees).
.... Applicants
By Advocate: Mr. Harish Chandra
Versus
1. Union of India, through its Secretary, Human Resource &
Development, Department of Education, New Delhi. 127-c Shastri
Bhawan New Delhi-110001.
4- O.A. No. 1090/2023
2. Commissioner, Navodaya Vidyalaya Samiti, B-15, Institutional Area,
Sector 62, Noida, Uttar Pradesh 201307.
3. Deputy Commissioner, Navodaya Vidyalaya Samiti, Regional Office,
Bay No. 26-27, Sector 31-A, Chandigarh-160030.
4. Principal, Jawahar Navodaya Vidyalaya, Solan, District Solan,
Himachal Pradesh-173207.
5. Manager, M/s SAP Skills & Staffing Private Limited, Shop No. 205,
Chandralok Tower Kapurthala, Lucknow.
... .Respondents
By Advocate: Mr. Sanjay Goyal, Sr. CGSC for R-1
Mr. Rishav Sharma Respondents No. 2 to 4
6. Original Application No. 063/847/2023
1. Nanak Chand son of Shri Prabhu Dayal, aged 48 years, Post Office
Jobri, Sanlech, 433 Solan, Himachal Pradesh-173221, working as Mess
Helper, Jawahar Navodaya Vidyalaya, Baniya Devi, Post Office & Tehsil
Kunihar, District Solan, Himachal Pradesh-173207.
2. Rasheed Mohd, 7.9.1988 son of Peer Mohammad, JNV, Baniya Devi,
Tehsil Arki, Hardev Pura, Solan, H.P. 173207.
(Group 'C' employees).
..... Applicants
By Advocate: Mr. Harish Chandra
Versus
1. Union of India, through its Secretary, Human Resource &
Development, Department of Education, New Delhi. 127-c Shastri
Bhawan New Delhi-110001.
2. Commissioner, Navodaya Vidyalaya Samiti, B-15, Institutional Area,
Sector 62, Noida, Uttar Pradesh 201307.
3. Deputy Commissioner, Navodaya Vidyalaya Samiti, Regional Office,
Bay No. 26-27, Sector 31-A, Chandigarh-160030.
4. Principal, Jawahar Navodaya Vidyalaya, Solan, District Solan,
Himachal Pradesh-173207.
5. Manager, M/s SAP Skills & Staffing Private Limited, Shop No. 205,
Chandralok Tower Kapurthala, Lucknow.
... .Respondents
By Advocate: Mr. Sanjay Goyal, Sr. CGSC for R-1
Mr. Rishav Sharma Respondents No. 2 to 4
5- O.A. No. 1090/2023
7. Original Application No. 063/905/2023
Kavinder Kumar son of Shri Manoj Kumar, aged 28 years, working as
Mess Helper in Jawahar Navodaya Vidyalaya, Sarol District Chamba
(H.P)-176310.
(Group 'C' employee)
..... Applicant
By Advocate: Mr. Harish Chandra
Versus
1. Navodaya Vidyalaya Samiti, B-15, Institutional Area, Sector 62,
Noida, Uttar Pradesh 201307 through Commissioner.
2. Deputy Commissioner, Navodaya Vidyalaya Samiti, Regional Office,
Bay No. 26-27, Sector 31-A, Chandigarh-160030.
3. Principal, Jawahar Navodaya Vidyalaya, Sarol District, Chamba(HP) -
176310
4. Manager, M/s SAP Skills & Staffing Private Limited, Shop No. 205,
Chandralok Tower Kapurthala, Lucknow. (Ex parte vide order dated
15.02.2024
... .Respondents
By Advocate: Mr. Rishav Sharma Respondents No. 1 to 3
8. Original Application No. 063/906/2023
Ved Prakash son of Shri Barfi Ram, aged 36 years, working as Mess
Helper in Jawahar Navodaya Vidyalaya, Sarol District Chamba (H.P)-
176310.
(Group 'C' employee)
..... Applicant
By Advocate: Mr. Harish Chandra
Versus
1. Navodaya Vidyalaya Samiti, B-15, Institutional Area, Sector 62,
Noida, Uttar Pradesh 201307 through Commissioner.
2. Deputy Commissioner, Navodaya Vidyalaya Samiti, Regional Office,
Bay No. 26-27, Sector 31-A, Chandigarh-160030.
3. Principal, Jawahar Navodaya Vidyalaya, Sarol District, Chamba(HP) -
176310
4. Manager, M/s SAP Skills & Staffing Private Limited, Shop No. 205,
Chandralok Tower Kapurthala, Lucknow.
... .Respondents
By Advocate: Mr. Rishav Sharma Respondents No. 1 to 3
6- O.A. No. 1090/2023
9. Original Application No. 063/907/2023
Neelam Kumar son of Sh. Ram Lal, permanent resident of Vill. Karangla,
PO Delath, The. Nankhari Distt. Shimla (H.P)-172028 and working as
Mess Helper in Jawahar Navodaya Vidyalaya District Lahaul & Spiti (H.P-
172113) (Group 'C' employee)
..... Applicant
By Advocate: Mr. Harish Chandra
Versus
1. Navodaya Vidyalaya Samiti, B-15, Institutional Area, Sector 62,
Noida, Uttar Pradesh 201307 through Commissioner.
2. Deputy Commissioner, Navodaya Vidyalaya Samiti, Regional Office,
Bay No. 26-27, Sector 31-A, Chandigarh-160030.
3. Principal, Jawahar Navodaya Vidyalaya, Sarol District, Chamba(HP) -
176310
4. Manager, M/s SAP Skills & Staffing Private Limited, Shop No. 205,
Chandralok Tower Kapurthala, Lucknow.
... .Respondents
By Advocate: Mr. Rishav Sharma Respondents No. 1 to 3
10. Original Application No. 063/908/2023
Mrs. Tashi Chhodon wife of Sh. Late Chhoigial, VPO Mud, Tehsil Spiti,
District Lahaul & Spiti (Himachal Pradesh)-172117 working as Daily
Wager in Jawahar Navodaya Vidyalaya District Lahaul & Spiti (H.P-
172113). (Group 'C' employee)
..... Applicant
By Advocate: Mr. Harish Chandra
Versus
1. Navodaya Vidyalaya Samiti, B-15, Institutional Area, Sector 62,
Noida, Uttar Pradesh 201307 through Commissioner.
2. Deputy Commissioner, Navodaya Vidyalaya Samiti, Regional Office,
Bay No. 26-27, Sector 31-A, Chandigarh-160030.
3. Principal, Jawahar Navodaya Vidyalaya, Sarol District, Chamba(HP) -
176310
4. Manager, M/s SAP Skills & Staffing Private Limited, Shop No. 205,
Chandralok Tower Kapurthala, Lucknow. (Ex parte vide order dated
15.02.2024
By Advocate: Mr. Rishav Sharma Respondents No. 1 to 3
7- O.A. No. 1090/2023
ORDER
Per: SURESH KUMAR BATRA MEMBER (J):-
1. The applicants in the above captioned Original Applications have prayed for a direction to the respondents to quash the action of the respondents in outsourcing the services of the applicants and to direct the respondents to allow them to continue directly under their control and not to replace them except through regular appointment. In some of the cases, the applicants have also sought direction to the respondents to consider them for regular appointment. The issue for consideration is same and based on the same facts and grounds in these cases, therefore, these are being taken up for disposal by a common order, with the consent of learned counsel for both sides.
2. The applicants herein are working as Mess Helper/Security Guard/Matron/Lab Attendant/Gardener/Helper/Casual Worker in the Navodaya Vidyala Sangathan (hereinafter referred to as NVS), who were engaged directly by the respondents and thereafter in year 2021/2022, the respondents started taking their services through outsourcing agency. To give a summarized note of the facts, the O.A. No. 1090/2023 titled Harchaaran Singh & Others is taken as a lead case. However the bone of additional contention in other OAs has also been take for consideration and dealt with. The crux of the relief sought by the applicants is hereunder:-
(i) Against the decision of the respondents to outsource the service of the existing employees including applicants who were working directly under control of the respondents which has been disapproved by the Hon'ble Punjab and Haryana High Court in 8- O.A. No. 1090/2023 the case of SHIV KUMAR AND ANOTHER VS. STATE OF HARYANA AND ANOTHER, reported as 2017 (2) RSJ 333., where similar method adopted by the State of Haryana has been deprecated and it has been held that one set of contractual employees cannot be replaced by another and such action of employment through outsource agency may kindly be declared as void ab initio.
(ii) For issuance of directions to the respondents No. 1 to 3 to allow the applicants to work as their direct employee as Security Guard without aid of Outsource Agency and policy of use and throw may kindly be declared as illegal and arbitrary & with further directions to continue till need is there and not to replace him except through regular appointees.
(iii) Issue directions to the respondents to regularize the services of the applicants who worked for years together in terms of the decision of the Hon'ble Supreme Court in the case of Secretary, State of Karnataka and Others Vs. Uma Devi & Others, 2006 (4) SCC 1.
3. In O.A. No. 063/844/2023, the applicants have challenged the policy/instructions dated 10.09.2020 (Annexure A-2 therein) vide which the respondents have taken a decision to outsource the services of the existing employees.
4. The brief facts of the case are that the applicants (in O.A. No. 1090/2023) possesses the qualification of 10th pass, 8th pass, 8th pass , 8th pass and 8th pass respectively and have been working as Mess helper on daily wages basis under respondent no. 3 w.e.f. 02.08.2008, 26.09.2009 (applicant No.2 worked from 26.09.2009 to 03.02.2017 & 9- O.A. No. 1090/2023 28.01.2021 to till date), (applicant no. 3 worked from 26.09.2012 to January, 2017 & 19.12.2021 to till date), 01.08.2006 and 20.08.2017 respectively. Respondent No.3 issued experience certificates dated 23.09.2014 and 07.05.2015 to the applicants No.1 & 4 certifying that they are working since 02.08.2008 and 01.08.2006 respectively as Mess Helper.
5. The applicant Parsa Singh in O.A. No. 1112/2023 has been working as Security Guard on daily wages basis under the respondent No.3 w.e.f. 21.07.2009 (applicant worked from 21.07.2009 to 30.06.2015 as Security Guard, 01.07.2015 to 30.06.2022 as Lab Attendant and 02.07.2022 to till date as Security Guard). Respondent No.3 paid salary directly to the applicant in his account as evident from bank statement placed on record.
6. Initially, the applicants were direct employee of respondents No. 1 to 3 but were shifted to outsourcing basis through contractors in 2022. The work and conduct of the applicants are up to satisfaction of all concerned without there being any cause of complaint against them.
7. The applicants pleaded that the their appointment was made for the reason that there was shortage of Staff against which they were appointed and while appointing them it was assured that the respondents will bring the policy to regularize their services. The applicants have rendered sufficient service with the respondents but till date no such policy for regularization has been issued. Instead of making the policy to regularize their services, the respondent No.1 to 3 decided to outsource the service against which the applicants have been appointed.
10- O.A. No. 1090/2023
8. The applicants further submitted that there were Recruitment Rules of 1991 governing the post of Mess Helper, notified by the respondents, laying down criteria. The posts of Mess Helper and Lab Attendant in JNVs are governed by the Statutory Recruitment Rules as amended from time to time, now called as Navodaya Vidyalaya Samiti Recruitment (Revised) Rules, 2019 as notified vide Notification No.1- 3/2018-NVS (GA)/285 dated 30.12.2019 and the post of Mess Helper is to be filled by 100% by direct recruitment. The respondents are debarred from filing the post of Mess Helper through outsourcing as there was no mention about outsourcing in the RRs.
9. The applicants submitted that they were employed with intermittent break after every 89 days etc. However, after July, 2022 their employment has been done through outsourcing without issuance of any formal appointment orders. The respondents have now short- listed firms through GeM portal for engagement of manpower for JNVS under Punjab through outsourcing namely M/s Shivanji HR Solutions Pvt. Ltd., Lucknow, M.S Komal Placement Services, Jammu and M/s Aero Infomedia Pvt. Ltd., Lucknow for providing manpower on outsourcing basis vide letter dated 14.06.2023. The contractor is demanding security deposit of Rs.20,000/- for registering the applicants. The respondent No.2 terminated their contract vide letter dated 03.07.2023 and respondents have awarded contract to M/s Vision Security & Allied Services and M/s Samrat Agency C/o Deputy Commissioner, NVS, R.O. Chandigarh for Punjab Cluster.
10. The contention of the applicants is that the impugned action of respondents in changing their source of service through outsource agency namely M/s Vision Security & Allied Services, C/o Deputy 11- O.A. No. 1090/2023 Commissioner, NVS, R.O., Chandigarh is harsh, void ab initio, illegal, arbitrary, discriminatory, violative of articles 14 and 16 of the Constitution of India and cannot be sustained in the eyes of law. An identical situation arose in Doordarshan Kendra, where the respondent initiated the process to outsource their Casual Floor Assistant, which was challenged in the Hon'ble Principal Bench by filing O.A. No. 2074/2015 titled as Om Parkash and another versus Union of India & others in which interim order was passed on 05.06.2015 and finally vide judgment dated 18.05.2022 O.A. was allowed.
11. Reliance has been placed upon the judgments of Hon'ble Supreme Court in the cases of State of Haryana and Another Vs. Piara Singh and Another, (1991) 4 SCC 118, Inder Pal Yadav and Others Vs. Union of India etc, 1985 SCR (3) 837, Hargurpartap Singh vs. State of Punjab and Others, (2007) 13 SCC 294 and a judgment of Hon'ble Punjab and Haryana High Court in the case of Shiv Kumar and Another vs. State of Haryana and Another, 2017 (2) RSJ 333, where practice of replacing/changing persons with outsourcing was deprecated and it has been held that one set of contractual employee cannot be replaced by another.
12. The respondents no. 1 to 3 filed written statement contesting the claim of applicant. It has been stated that the applicants were never engaged against sanctioned post nor such posts exist in NVS. Their engagement was contrary to the directions of the Hon'ble Supreme court in the case of Uma Devi and also in violation of Article 14 of the Constitution of India. No appointment letter was ever issued to them, nor any advertisement was issued when they were engaged as Mess Helper. The applicants did not work continuously. They were engaged on 12- O.A. No. 1090/2023 need basis. After the outsourcing policy was enforced, they voluntarily got himself enrolled with outsourcing agency since 16.07.2022 and are working through outsourcing agency since 16.07.2022 and are paid by the outsource agency (Annexures R-1 and R-2).
13. It has been further submitted that present O.A. is not maintainable before this Tribunal in view of the decision of the Hon'ble High Court in Punjab & Haryana the case of Sarabjit Kaur Vs. State of Punjab and ors. reported as 2021 (2) SCT 669 wherein keeping in view the decision of the Hon'ble Supreme Court and various other decisions it has been held that in the absence of relationship between State or its instrumentality writ petition by outsourced employee against State is not maintainable. In the present case as well the applicants are working through outsource agency w.e.f. 01.09.2023 and there is no relationship of master and servant between the applicants and respondent No. 1 to 3. Hence the present O.A. is liable to be dismissed being not maintainable.
14. The respondents further submitted that applicants did not challenge letter dated 23.10.2015, which is barred by limitation U/s 21 of the AT Act, 1985 as it was in the knowledge of the applicant and OA has been filed as an afterthought in 2023 that too when the applicants are already working through outsource agency and is also being paid by the agency, since the Tribunal while issuing notice on 07.11.2023 ordered status quo qua the service conditions of the applicant. It has also been stated that the applicants have challenged the letter dated 10.09.2020 which has been issued in pursuance of policy dated 23.10.2015 whereby decision to outsource the services of manpower was taken.
13- O.A. No. 1090/2023
15. The respondents have placed reliance upon judgments of the Hon'ble Punjab and Haryana High Court in the case of, Union of India and others Vs. Ram Pal and Others, 2013 (3) SCT 220, Kumar Saurabh and Others Vs. State of Haryana and Others, 2021 (1) SCT 687, Sarabjit Kaur Vs. State of Punjab and Others, 2021 (2) SCT 669, Nishan Singh and Others Vs. State of Punjab and Others, 2014 (1) SCT 33, Siman and Others Vs. Dr. B.R. Ambedkar National Institute of Technology, Jalandhar and Another (LPA No. 1120/2016 decided on 04.07.2016) and judgment of the Hon'ble Apex Court in the case of State of Karnataka and Others Vs. Uma Devi and Others, 2006 AIR (SC) 1806.
16. The respondent no. 4 (in O.A. No. 1112/2023) filed objection stating that the applicant has unnecessarily arrayed the respondent no. 4 as party in the instant O.A. without placing on record any order or communication/permission wherein the applicant is able to demonstrate that the respondent no. 3 has outsourced them. It has also been submitted that none of the respondents no. 1 to 3 have ever shortlisted the respondent no. 4 and at no point of time contract was given to respondent no. 4 who is running an agency under the name and style M/s Vision Security and Allied Services. In such eventuality, there is no question of violation of any right of the applicant by the answering respondent no. 4.
17. The applicants have filed rejoinder reiterating the contentions raised in the O.A.
18. I have gone through the pleadings, perused the material available on record and considered the rival submissions of both sides. 14- O.A. No. 1090/2023
19. The uncontroverted fact of the case is that the applicants are working as Mess Helper/Lab Attendant/Security Guard Gardener/Matron/Helper/Casual Worker in Jawahar Navodaya Vidyalayas (herein after refer to as JVV) since long. The initial employment of the applicants with the NVS was direct engagement and not through any outsource agency. However, during the currency of their employment, the respondents in the year 2021/2022 changed the source of their employment through private outsource agency and the respondents are continuously hiring their services through the private outsource agency.
20. The respondents have taken a preliminary objection that these OAs are not maintainable before this Tribunal as the applicants are already working through outsource agency since 2022, therefore there is no relationship of employee and employer between the applicants and official respondents. In support of the contention, the respondents have placed reliance upon judgments of, Ram Pal (supra) Sarabjit Kaur (supra), Kumar Saurabh (supra) and Nishan Singh (supra).
21. I perused reply filed by the respondents and from the perusal thereof, I find that there is no denial to this fact that the applicants had not been engaged by the respondent. It has not been pleaded by the respondents that the initial engagement of the applicants is either illegal or backdoor entry. Further from the perusal of letter of respondents dated 10.09.2020 (Annexure A-2), the quashing whereof has been sought by the applicants, it has been admitted by the respondents that the JNV will remain the principal employer of applicants despite their continuation through the outsourcing agency. Moreover, the respondents did not employ other personnel on regular basis for these 15- O.A. No. 1090/2023 services during the employment of applicants with NVS. After admitted so, the respondents cannot deny the relation of employer and employee between the respondents and applicants. Even the outsource agency has been instructed to follow all labour laws and instructions.
22. From the perusal of material available on record, I find that the applicants (in Harchaarn Singh's case, OA No.1090/2023) were initially engaged by the respondents directly and are working with the respondents/NVS as Mess Helper since 2006, 2008, 2009 and 2012 respectively, which is evident from the certificate issued by the respondents and placed on record as annexure A-2 and A-3, wherein they have admitted the factum of working of applicants as Mess Helper.
23. On the basis of averments in pleadings of both the sides and supported documentary evidences, I am of the considered view that since the applicants had initially been engaged directly by the respondents and thereafter admission of being the principal employer, the judgments relied upon by them could not support the defence plea of the respondents as these are distinguishable on facts. The petitioners in the relied upon cases viz. Ram Pal (supra), Nishan Singh(supra), Sarabjit Kaur (supra) and Kumar Saurabh (supra) were engaged through the service provider, whereas in the present case, it is an undisputed fact that initially the applicants were employed directly by the official respondents and later on the source of their employment has been unilaterally changed.
24. In this regard I take the support of ratio of judgement of the Hon'ble Supreme Court in the case of Union of India and Others Vs. Deep Chand Pandey and Another, (1993) 23 ATJ 356, wherein it is held that the claim of the casual railway employee, who engaged on 16- O.A. No. 1090/2023 daily wages basis, on termination of his service is covered by the Act and remedy lies before Tribunal.
25. Therefore on the basis of aforesaid discussion and legal proposition, I reject the plea of the respondents that the O.As are not maintainable before this Tribunal.
26. The another contention of the respondents that the applicants were never engaged against sanctioned post and nor such posts exist in NVS is contrary to their averments in Written Statement. The respondents have averred in their reply that in pursuance of Policy dated 11.04.2007, the respondents had issued instructions with regard to deployment of Mess Helper over and above the sanction posts of 8 Mess helper (2 Regular and 6 Casual Worker) in JNV having 560 students. Meaning thereby, the posts of Mess Helper and Lab Attendant are sanctioned post and the respondents had formulated some policy in 2007 with regard to deployment of Mess Helper and the initial deployment of the applicants was as per Policy, 2007, though they have not placed the copy of policy on record. This is not the case of the respondents that the services of the applicants herein have been taken in addition to the regular posts of Mess Helper in JNV. This is further corroborated from the notification dated 30.12.2019 regarding JNV Recruitment (Revised) Rules, 2019 (Annexure A-4) which also provides further maintenance of services of the staff. The rule 2(i) of the said notification provides as under:-
'All persons appointed on direct recruitment basis in accordance with the Recruitment Rules notified earlier vide notification No. 1-67/89-NVS(Admn) dated 7th June, 1991 or No. 2-29/94- NVS(Admn) dated 22 June, 1995 or No. 1-2/2005-NVS (Estt.II) dated 16.07.2007, 1-3/2018-NVS(GA) dated 14.11.2018 or under any other notification/administrative instructions existing prior to notification of the Rules or on permanent absorption 17- O.A. No. 1090/2023 basis in accordance with the Permanent Absorption Rules of the Samiti, shall continue in substantive posts held by them.' From the perusal of the aforesaid provision of Revised Recruitment Rules, 2019, it is evident that the posts of Mess Helper, Lab Attendant, Cook, MTS etc. were being governed vide notification dated 07.06.1991 and the applicants have been engaged in the aforesaid capacity from the year 2006 onwards. Therefore, these are reasonable grounds to hold that the applicants had been engaged as per the Policy in vogue.
27. Learned counsel for the applicants argued that the posts of Mess Helper and Lab Attendant in JNV are governed by the Recruitment Rules, 1991 and according to these Rules, the method of recruitment to the post of Mess Helper is 100% by direct recruitment. It has also been provided under the Rules, 1991 that the casual workers working in the Navodaya Vidyalaya Mess for more than 05 years shall be considered for appointment to the post along with candidates sponsored by the Employment Exchange. The respondents in their reply have not controverted the contention of applicability of Recruitment Rules, 1991, which is further established from the notification dated 30.12.2019 issued by the respondents having the reference of Recruitment Rules notified earlier vide notification no.1- 67/89-NVS(Admn) dated 07th June 1991.
28. The applicants have placed on record a copy of notification dated 30.12.2019 (Annexure A-4) with regard to NVS Recruitment (Revised) Rules, 2019. The Rules, 2019 regulate the method of recruitment to various posts in NVS including the Mess Helper as well as Lab Attendant. The Rule 4 and 5 of the Rules ibid prescribes the method of recruitment, age limit and other qualifications as well as probation 18- O.A. No. 1090/2023 period for the employees appointed under these Rules. As per the Recruitment Rules, 2019, the post of Mess Helper is a sanctioned Group 'C' post of Level -1 in the Pay Matrix (Rs.18000-56900). These Rules also stipulates age relaxation to the extent of period spent as casual labourer in JNV mess, including broken period, if any, to the casual labourer. It has also been prescribed that the casual workers working in NVS Mess for more than 10 years shall be considered for appointment to the post along with other candidates. On the basis of the aforesaid, there is no doubt to hold that the posts of Mess Helper and Lab Attendant are governed by the NVS Recruitment (Revised) Rules 2019, and these Revised Recruitment Rules, 2019 do not recognise the method of appointment by way of outsourcing. After the formulation of aforesaid Rules 2019 and its applicability, the respondents cannot go beyond the rules in changing the source of employment of applicants. Such action of respondents is not in consonance with their policy or Rules. The plea of the respondents that the applicants were engaged against neither sanctioned post nor such posts exists in NVS lacks merit as the nature of work performed by them in day to day affairs of the NVS is perennial and fundamental to the functioning of the NVS.
29. Undisputedly, despite the change of source of engagement of applicants by the respondents, the nature of duties and the responsibilities of the applicants towards respondents including the place of duty are unchanged. The wages to the applicants are still being paid by the respondents from their fund though through Outsourcing agency. Therefore, the contention of the respondents that there is no relationship of employee and employer is not sustainable. 19- O.A. No. 1090/2023 Even the respondents vide impugned letter dated 10.09.2020 directed the outsourcing agency to adhere to labour law and other instructions, which indicates their indirect control on the applicants through outsourcing agency. The respondents have unilaterally, without giving any opportunity of being heard to the applicant, took the decision to change the source of their employment from 'direct' to 'outsourcing', to which the applicant, being a casual worker, has no say to oppose the action of the respondents. Therefore, it is held that the action of respondents to change the source of engagement is illegal, arbitrary and not in consonance with the Recruitment Rules and being without the support of any legal source. If a post is governed by the statutory Recruitment Rules, it can't be filled by way of outsourcing as outsource cannot be source of recruitment.
30. The Hon'ble Allahabad High Court in the case of Ravendra Singh and Others Vs. State of U.P. and Another (Civil Misc. Writ Petition No. 4012/2011 decided on 23.08.2013), while dealing with the issue of outsourcing against the sanctioned post, observed as under:-
"45. Even otherwise, it cannot be said that aforesaid Government order is saved by any provision in Act, 1861 or Act, 1944. Para 2 of the Government order also would be contrary to the provisions relating to recruitment under Rules, 2009 which do not recognise the engagement of a person against a Class-IV post in any other manner except what is prescribed therein. For the post in question it is 'direct recruitment'. No system of outsourcing is recognised therein, therefore, para 2 of the Government order is ultra vires of Rules, 2009. This Government order is basically a general order issued to various departments with respect to revision of pay and, therefore, even otherwise it would not come within the ambit of Section 2 of Act, 1861."
31. Even further, since the applicants are working with the respondents for last many years, therefore, the inherent need of services of the applicants, whether it is of Sweeper or Chowkidar or Gardener or Matron or Helper or Casual Worker cannot be disputed. 20- O.A. No. 1090/2023 Their services are integral to the daily functioning of the NVS. After having integral services of the applicants for so many years, the respondents cannot unilaterally change the source of their employment by asking them to come for their re-engagement through outsourcing agency. Though, for the time being they are not being replaced by the respondents but once the respondents take a decision to outsource the services, the rein of employment of the applicants comes in the hands of the outsource agency and with the cease of contract of the agency, the employment of the applicants would come to an end automatically and then they have to enrol themselves with the new outsourcing agency hired by the department, who will also have the option to either allow the continuation of applicant's services on his terms and conditions or replace one set of workers with another. The contractor of the outsource agency, on its own, may impose any harsh, unreasonable or discriminatory conditions on the applicants before offering them re-engagement. In the present case also, it is an averment of the applicants that the new contractor is demanding Rs.20,000/- as security deposit from the applicants. In my view, the imposition of such unreasonable conditions on the casual worker is excessive, harsh and unjustified. The casual workers are most vulnerable to the exploitation. It was the duty of the respondents, being a principal employer, to discourage the imposition of such an excessive condition of deposit of Rs.20,000/- as security by the outsourcing agency. The hiring of outsourcing agency by the respondents for continuation of services of the applicant shows that the services of the applicant are compulsory for running the NVS. Moreover the respondent did not engage/replaced any other personnel 21- O.A. No. 1090/2023 for these services during the applicant's tenure underscoring the indispensable nature of work. Thus, the change of nature of employment of the applicants would adversely affect their interests and rights.
32. The Hon'ble High Court of Punjab and Haryana in the case of Shiv Kumar (supra) held as under:-
"13. At this stage, the submission raised by learned State counsel as regards the engagement of manpower on contractual basis in the light of an outsourcing policy framed by the Government requires to be dealt with. In the considered view of this Court, the rights of the petitioners cannot be defeated merely by making a reference to an outsourcing policy and to thereby enable the State Government to shirk from his responsibilities even with regard to any contractual engagement that may have been entered into. After all, the agency which would engage and make contractual engagement is only an interface between the appointee and the Government. Undisputedly, the work that is to be carried out by such contractual appointee even though engaged at the hands of a contractor/outsourcing agency is that of the Government. The salary also has to be paid ultimately by the Government itself. Accordingly, it is held that the rights of the petitioners emanating in pursuance to a contractual engagement cannot be diluted merely in the light of an outsourcing policy having been framed.
14. In view of the above, the present writ petition is disposed of with the directions that the present petitioners would not be replaced by another contractual employee. It is, however, clarified that it would be open for the respondent/department to dispense with and to bring to an end the contractual engagement of the petitioners in the light of the eventualities and circumstances that have already been taken note of and culled out in this order."
33. Learned counsel for the applicants further argued that the applicants, who have rendered more than 10 years of service deserves consideration for their regularisation in view of judgment of Hon'ble Supreme Court in the case of Uma Devi (supra). Per contra, the learned counsels for respondents have opposed the contention of the applicants stating that their engagement was contrary to the directions of the Hon'ble Supreme Court in Uma Devi case. This plea of the respondents is in teeth of ratio of Hon'ble Supreme Court latest judgment in the case of Jaggo Vs. Union of India and Others (SLP 22- O.A. No. 1090/2023 (C) No.5580/2024 decided on 20.12.2024) wherein the Hon'ble Apex Court, while allowing the appeal, observed and held as under:-
"20. It is well established that the decision in Uma Devi (supra) does not intend to penalize employees who have rendered long years of service fulfilling ongoing and necessary functions of the State or its instrumentalities. The said judgment sought to prevent backdoor entries and illegal appointments that circumvent constitutional requirements. However, where appointments were not illegal but possibly "irregular," and where employees had served continuously against the backdrop of sanctioned functions for a considerable period, the need for a fair and humane resolution becomes paramount. Prolonged, continuous, and unblemished service performing tasks inherently required on a regular basis can, over the time, transform what was initially ad-hoc or temporary into a scenario demanding fair regularization.
In a recent judgement of this Court in Vinod Kumar and Ors. Etc. Vs. Union of India & Ors., it was held that procedural formalities cannot be used to deny regularization of service to an employee whose appointment was termed "temporary" but has performed the same duties as performed by the regular employee over a considerable period in the capacity of the regular employee. The relevant paras of this judgement have been reproduced below:
"6. The application of the judgment in Uma Devi (supra) by the High Court does not fit squarely with the facts at hand, given the specific circumstances under which the appellants were employed and have continued their service. The reliance on procedural formalities at the outset cannot be used to perpetually deny substantive rights that have accrued over a considerable period through continuous service. Their promotion was based on a specific notification for vacancies and a subsequent circular, followed by a selection process involving written 23- O.A. No. 1090/2023 tests and interviews, which distinguishes their case from the appointments through back door entry as discussed in the case of Uma Devi (supra).
7. The judgement in the case Uma Devi (supra) also distinguished between "irregular" and "illegal"
appointments underscoring the importance of considering certain appointments even if were not made strictly in accordance with the prescribed Rules and Procedure, cannot be said to have been made illegally if they had followed the procedures of regular appointments such as conduct of written examinations or interviews as in the present case."
21. The High Court placed undue emphasis on the initial label of the appellants' engagements and the outsourcing decision taken after their dismissal. Courts must look beyond the surface labels and consider the realities of employment: continuous, long-term service, indispensable duties, and absence of any mala fide or illegalities in their appointments. In that light, refusing regularization simply because their original terms did not explicitly state so, or because an outsourcing policy was belatedly introduced, would be contrary to principles of fairness and equity.
22. The pervasive misuse of temporary employment contracts, as exemplified in this case, reflects a broader systemic issue that adversely affects workers' rights and job security. In the private sector, the rise of the gig economy has led to an increase in precarious employment arrangements, often characterized by lack of benefits, job security, and fair treatment. Such practices have been criticized for exploiting workers and undermining labour standards. Government institutions, entrusted with upholding the principles of fairness and justice, bear an even greater responsibility to avoid such exploitative employment practices. When public sector entities engage in misuse of temporary contracts, it not only mirrors the detrimental trends 24- O.A. No. 1090/2023 observed in the gig economy but also sets a concerning precedent that can erode public trust in governmental operations.
23. The International Labour Organization (ILO), of which India is a founding member, has consistently advocated for employment stability and the fair treatment of workers. The ILO's Multinational Enterprises Declaration encourages companies to provide stable employment and to observe obligations concerning employment stability and social security. It emphasizes that enterprises should assume a leading role in promoting employment security, particularly in contexts where job discontinuation could exacerbate long-term unemployment
34. The argument of respondents to deny the claim of regularisation is misinterpretation of the ratio of Uma Devi's case. The Hon'ble Apex Court in Jaggo's case (supra) further observed as under:-
26. While the judgment in Uma Devi (supra) sought to curtail the practice of backdoor entries and ensure appointments adhered to constitutional principles, it is regrettable that its principles are often misinterpreted or misapplied to deny legitimate claims of long-serving employees. This judgment aimed to distinguish between "illegal" and "irregular"
appointments. It categorically held that employees in irregular appointments, who were engaged in duly sanctioned posts and had served continuously for more than ten years, should be considered for regularization as a one-time measure. However, the laudable intent of the judgment is being subverted when institutions rely on its dicta to indiscriminately reject the claims of employees, even in cases where their appointments are not illegal, but merely lack adherence to procedural formalities. Government departments often cite the judgment in Uma Devi (supra) to argue that no vested right to regularization exists for temporary employees, overlooking the judgment's explicit acknowledgment of cases where regularization is appropriate. This selective application distorts the judgment's spirit and 25- O.A. No. 1090/2023 purpose, effectively weaponizing it against employees who have rendered indispensable services over decades.
27. In light of these considerations, in our opinion, it is imperative for government departments to lead by example in providing fair and stable employment. Engaging workers on a temporary basis for extended periods, especially when their roles are integral to the organization's functioning, not only contravenes international labour standards but also exposes the organization to legal challenges and undermines employee morale. By ensuring fair employment practices, government institutions can reduce the burden of unnecessary litigation, promote job security, and uphold the principles of justice and fairness that they are meant to embody. This approach aligns with international standards and sets a positive precedent for the private sector to follow, thereby contributing to the overall betterment of labour practices in the country."
35. On the basis of foregoing discussion, it is held that this Tribunal has jurisdiction to entertain these O.As. The action of the respondents to take the services of the applicants by way of outsourcing is held to be illegal, not in consonance with the Recruitment Rules and is prejudicial to the interest and rights of the applicants being casual workers. The policy/instructions dated 10.09.2020 (challenged in O.A. No. 844/2023) are quashed and set aside. The respondents are directed to allow the applicants to continue their engagement directly under them. The claim of the applicants for regularization, only those, who have completed ten years of employment, be considered in view of ratio of Hon'ble Apex Court's judgment in the case of Jaggo (supra). The needful be done within a period of four months from the date of receipt of a copy of this order.
The Original Applications are allowed with the above directions. No costs.
26- O.A. No. 1090/2023
(SURESH KUMAR BATRA) MEMBER (J) 'mw'