Telangana High Court
G. Srinivasa Chary, vs The State Of Telangana, on 7 August, 2020
Author: M.S.Ramachandra Rao
Bench: M.S.Ramachandra Rao
THE HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO
I.A.No.1 of 2019 in/and W.P.No. 47675 of 2018
ORDER:
This Writ Petition raises issues as to legality of :
(i) action of the Greater Hyderabad Municipal Corporation (GHMC) adopting "outsourcing of employees" as a method of engaging services of the petitioners as Sanitary Supervisors (SFA), Sanitation Workers, Entomology Field Workers, Entomology Superior Field Workers, Supervisors (EFA), Superior Field Assistants on Fixed Wages,
(ii) claim of petitioners for regularization of their services in the GHMC in the said posts in the GHMC, and
(iii) action of GHMC in denying them minimum of time scale of pay attached to each of the posts while utilizing the services of the petitioners in the said capacities through outsourcing Agencies.
2. There is no dispute that all the petitioners are engaged by GHMC on outsourcing basis since 2008, 2010 and 2011 and their wages were being paid through various outsourcing agencies.
3. The petitioners have arrayed in this Writ Petition, the State of Telangana represented by Principal Secretary, Municipal Administration as the 1st respondent, and the GHMC as 2nd respondent. The contentions of the petitioners
4. It is the contention of the Writ petitioners that they have been engaged in the various posts mentioned above for the last 2 decades; that ::2::
MSR,J wp_47675_2018 there was a notification issued by the GHMC in Eenadu Telugu Daily Newspaper that it wanted full time employees through Contractor, that the petitioners attended the interview and joined in GHMC.
5. They allege that though they have completed more than 10 years of unblemished service, their services have not been regularized and the GHMC has violated the judgments of the Supreme Court in Secretary, State of Karnataka Vs. Uma Devi1, ONGC Vs. Petroleum Coal Labour Union2 and Order dt.05-01-2018 in W.A.No.285 of 2017 and batch; that all the petitioners are skilled workers and they cannot be said to have been appointed irregularly or illegally; the principle of 'equal pay for equal work' restated in State of Punjab Vs. Jagjit Singh3 is being violated by the GHMC; that the GHMC's action amounts to forcing the petitioners to work as 'bonded labour' and their fundamental rights guaranteed by Articles 14, 16, 19, 21 and 23 of the Constitution of India are being violated.
6. They also state that they have given representations to the GHMC on 29-12-2009, 05-09-2018 and 10-09-2018 seeking regularization of their services in the GHMC and also seeking application of the principle 'equal pay for equal work'.
7. They also filed I.A.No.1 of 2018 to pay them minimum pay scale attached to the said posts in which they are working. 1 (2006) 4 SCC 1 2 (2015) 6 SCC 494 3 (2017) 1 SCC 148 ::3::
MSR,J wp_47675_2018 The interim order passed by this Court in IA.No.1 of 2018
8. On 31-12-2018, this Court passed the following order:
" ... Having regard to the decision of the Supreme Court in the State of Punjab & Others Vs. Jagjit Singh and others ... (2017) 1 SCC 148, the 2nd respondent shall pay petitioners wages on par with the minimum of time scale to the persons discharging similar duties in the 2nd respondent Corporation"
9. On 31-12-2018 itself, the Writ Petition had been admitted and notice had also been taken by the learned Government Pleader for General Administration on behalf of the 1st respondent and Sri L.Dayakar Reddy, learned Standing Counsel had taken for the 2nd respondent. The vacate stay application filed by the GHMC
10. The 1st respondent has not chosen to file counter-affidavit in the matter though more than one and half years have elapsed.
11. The GHMC has filed a counter-affidavit and also I.A.No.1 of 2019 to vacate the interim order granted on 31-12-2018 in I.A.No.1 of 2018 in W.P.No.47675 of 2018.
THE STAND OF THE GHMC
12. It is the case of the GHMC that all the petitioners are outsourcing workers of GHMC duly engaged through outsourcing agencies but not by GHMC directly.
13. According to the GHMC, it outsources certain services to private agencies who in turn provide manpower for support services and it is the outsourcing agencies which are responsible for payment of wages to the ::4::
MSR,J wp_47675_2018 manpower and not the GHMC; that procedure and source of appointment of outsourced employees is different from other modes of employment; and that the petitioners were engaged through different agencies and selection procedure is also different for them. What was the so called selection procedure for selecting of petitioners by the outsourcing agency is nowhere mentioned in the counter affidavit.
14. It is the case of the GHMC that in the welfare of the workers vide Proc.No.1557/H&S/GHMC/2012/567 dt.18-02-2012, they were recognized and restructured into Sanitation Worker Groups consisting of (7) members in a group from 2012 onwards.
15. Further as per the Government orders vide G.O.Rt.No.575, dt.19- 09-2017 of the Secretary to the Government of Telangana, MA&UD, wages of the Sanitation workers, Entomology Field Workers and Entomology Superior Field Workers per month were enhanced from Rs.12,500/- to Rs.14,000/- and it is being implemented to them; and wages of Sanitary Field Assistants and Entomology Field Assistants engaged on outsourcing basis were enhanced from Rs.13,000/- to Rs.14,500/- per month.
16. The GHMC denies that the petitioners were appointed through an employment notification and contends that there is no selection process conducted while engaging them and it was only a need based intake.
17. It denies that it is following unconstitutional methods and not regularizing their services. It also states that the judgments in Umadevi ::5::
MSR,J wp_47675_2018 (1 supra), ONGC (2 supra) and the Order dt.05-01-2018 in W.A.No.285 of 2007 and batch, have no application.
18. It is contended that petitioners' services were not utilized as NMR/contingent employees/daily wage employees directly either by the State Government or the GHMC, but they were deployed purely on outsourcing basis; that the GHMC does not provide wages unlike in the case of NMR/Contingent employees/daily wage employees; and that the wages of the petitioners are being paid by the Agency/Contractor.
19. It is contended that therefore they are not entitled to minimum of time scale of pay or to regularization of their services.
20. Reliance is placed on Section 3 of the Telangana (Regulation of Appointments to Public Services and Rationalization of Staff Pattern and Pay Structure) Act, 1994; and it is stated that since 1994, the GHMC has not appointed any person as a daily wage employee/or on temporary basis; and that it is following the provisions of the GHMC Act, 1955 and the Constitution of India.
21. It refers to G.O.Rt.No.4459 dt.27-12-2006 of the Finance (SMPC) Department, Government of Andhra Pradesh which states:
"5. ..... Government have decided for outsourcing certain services in Government Departments to the agencies and accordingly Government have outsourcing responsibility of supplying required man power to the private agencies. Accordingly Government have permitted several departments to outsource certain functions and functionaries for support services and issued guidelines."
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22. It also refers to guidelines 8 and 9 in said G.O.Rt. and states that "outsourcing agency is responsible for payment of remuneration to each individual by the agency".
23. The GHMC contends that as a principal employer, it is paying higher remuneration to the agencies when compared to the minimum wages under the Contract Labour (Regulation and Abolition) Act, 1970. It also states that it is taking all safety measures for its outsourcing workers from time to time such as implementation of enhancement in wages, ESI, EPF and Insurance etc. It is stated that for the welfare of outsourcing personnel, minimum/reasonable wages, as per orders of the Government are being implemented to avoid any hardship to them.
24. Proceedings No.45864/H&S/GHMC/2017 dt.21-09-2017 issued by the Commissioner, GHMC have been filed which show that the existing wage per month of Sanitary Workers, Entomology Field Workers, Entomology Superior Field Workers, Transport Workers, Veterinary Workers was enhanced from Rs.12,500/- to Rs.14,000/-; and the existing wage per month of Sanitary Field Assistant and Entomology Field Assistant is enhanced from Rs.13,000/- to Rs.14,500/-.
25. The GHMC therefore seeks vacation of the interim order dt.31-12- 2018 in I.A.No.1 of 2018 granted by this Court and seeks dismissal of the Writ Petition.
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MSR,J wp_47675_2018 THE CONSIDERATION BY THE COURT
26. The GHMC is a statutory Corporation constituted under the Greater Hyderabad Municipal Corporation Act, 1955. It comes within the purview of the term 'State' as defined in Article 12 of the Constitution of India.
27. Section 112 of the GHMC Act enumerates the duties of the GHMC. Some of it's important duties, relevant for our purposes, are:
"112. Matters to be provided for by the Corporation:-- The Corporation shall make adequate provision for the following matters, namely:--
..............
(2) the watering, scavenging and cleaning of all public streets and places in the City and the removal of all sweepings therefrom;
(3) the collection, removal, treatment and disposal of sewage, offensive matter and rubbish and the preparation of compost manure from such sewage, offensive matter and rubbish;
..............
(4) the maintenance and cleaning of drains and drainage works, and the construction, maintenance and cleaning of public latrines water-closets, urinals and similar conveniences :
Provided that it shall be competent for the Corporation to charge such fee as may be prescribed from time to time, from the user of public latrines, water closets, urinals and similar conveniences.
(5) the lighting of public buildings vested in the Corporation, public streets and municipal markets;
...............
(9) the maintenance, charge and regulation of places for the disposal of the dead and the provision of new places for the said purpose and disposing of unclaimed dead bodies;
(10) the construction or acquisition and maintenance of public markets and slaughter houses and the regulation of all markets and slaughter houses;
...............
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MSR,J wp_47675_2018 (12) public vaccination in accordance with the provisions of the Andhra Pradesh (Telangana Area) Vaccination Act, 1951 (Act XXIV of 1951);
(13) the reclamation of unhealthy localities, the removal of noxious vegetation and generally the abatement of all nuisances;
................
(15) the construction, maintenance, alteration and improvement of streets, bridges, sub-ways, culverts, causeways or the like;
(16) the removal of obstructions and projections in or upon streets, bridges and other public places;
................
(18) preventing the spread of infectious diseases; ................
(25) Urban Forestry, protection of the environment and promotion of ecological aspects;
................
(28) Slum improvement and upgradation; and (29) Urban poverty alleviation."
28. Apart from this the GHMC also has an Urban Malaria scheme and is taking steps to prevent and control the spread of vector borne diseases such as Malaria, Chikunguniya, Japanese Encephalitis and Filariasis, reduction of the Mosquito menace and undertakes according to its website, Weekly Anti Larval Operations with 642 teams for tackling breeding sources, Anti Adult mosquito control measures by thermal fogging and spraying with 150 teams, Indoor Pyrethrum space spray in and round 50 houses of positive case reported areas for immediate arresting of disease transmission and Identification of 'Hot Spots' for mosquitoes and transmitted diseases.
29. It also undertakes monitoring of larval and adult densities through Entomological teams, Special measures in open / muriki nalas, tanks, ::9::
MSR,J wp_47675_2018 musi river and other open breeding places like edge cleaning, spraying & de-weeding with 36 teams, and Releasing of mosquito larvivorus Gambuisa fish in water bodies.
30. To discharge these important duties/functions particularly for maintaining proper sanitation and maintenance of public conveniences and also to prevent the spread of infectious disease, it requires personnel such as Sanitary Supervisor (SFA), Sanitation Workers, Entomology Field Workers, Entomology Superior Field Workers, Supervisors (EFA), Superior Field Assistant.
31. The above enumerated responsibilities are not one time responsibilities or once a year responsibilities, but perennial continuing responsibilities, which would enable the respondents to make Hyderabad, a World Class Metro city, which they profess it to be.
32. Over the years, the Hyderabad city has expanded in size dramatically and large businesses including those in the Defence sector, IT sector, the Pharma sector and Aviation Sector have made it their home.
33. According to the GHMC, to enable it to discharge the above wide range of statutory duties conferred on it under the GHMC Act,1955, it has engaged the petitioners to perform the duties attached to the above posts of Sanitary Supervisor (SFA), Sanitation Workers, Entomology Field Workers, Entomology Superior Field Workers, Supervisors (EFA), Superior Field Assistants on "outsourcing" basis through intermediaries /agents/labour contractors.
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34. In the context of the current Covid-19 pandemic, the performance of these duties assumed great importance and every citizen would appreciate the yeoman services being rendered by persons such as the petitioners in cleaning and sanitising infected containment zones and public places.
35. Section 137 permits appointment of Officers and Servants subordinate to the Municipal Examiner of Accounts and Municipal Secretary.
36. The posts of Sanitary Supervisor (SFA), Sanitation Workers, Entomology Field Workers, Entomology Superior Field Workers, Supervisors (EFA), Superior Field Assistant, would undoubtedly fall under Sec.137 of the Act.
37. The GHMC has to necessarily employ on regular basis persons to discharge the duties of Sanitary Supervisor (SFA), Sanitation Workers, Entomology Field Workers, Entomology Superior Field Workers, Supervisors (EFA), Superior Field Assistants so that it can effectively discharge the duties referred to above .
38. But the counter affidavit filed by the GHMC is silent as to
(i) how many sanctioned posts of the above description exist as on date,
(ii) what are the scales of pay attached to the said posts, (iii) how many of these posts are filled by regularly recruited qualified personnel and
(iii) how many posts are vacant .
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39. It is not even stated (a) when was the last time, there was a regular process of recruitment of personnel to these posts and (b) whether or not any such regular process of recruitment is being undertaken or likely to be undertaken by it.
40. This is a clear case of suppression of relevant facts by the GHMC.
41. The absolute silence of the 1st respondent on the topic i.e not even filing a counter affidavit, is equally mystifying. The position of petitioners engaged through outsourcing agencies/contractors
42. Where a worker is engaged through a contractor or through agencies, they, after deducting their commission, pay the wages to the workers.
43. The net result is that the workers and employees may not be paid the minimum wages.
44. Probably with a fond hope that their services would be regularized subsequently, they are working as contract workers or through agencies.
45. This is nothing but exploiting the helplessness of those workers and thereby denying them the minimum wages. It certainly violates the right to life guaranteed by Art.21 of the Constitution of India to those workers/employees like the petitioners.
46. Another important factor to be taken into consideration is that whatever rights that regular employees of the GHMC are having- such as security of tenure, entitlement to time scale of pay, periodic increments, ::12::
MSR,J wp_47675_2018 pensionary benefits, leave, medical and retirement benefits - all such provisions are not available to the petitioners, since it is said that they are engaged through contractors. This amounts to 'unfair labour practice' and exploitation of labour.
47. The very purpose of enacting the Contract Labour (Regulation and Abolition) Act, 1970, was to see that ultimately the contract system is to be abolished. But this very purpose is being violated and defeated by no other than the Government and its instrumentalities.
48. The Supreme Court had occasion to consider this issue in Hussainbhai v. Alath Factory Thezhilali Union4. In that case, the petitioner before the Supreme Court was a factory owner manufacturing ropes. A number of workmen were engaged to make ropes from within the factory, but these workmen, according to the petitioner, were hired by contractors who had executed agreements with the petitioner to get such work done. Therefore, the petitioner contended that the workmen were not his workmen but the contractors' workmen.
The industrial award, made on a reference by the State Government, was attacked on this ground.
The learned Single Judge of the High Court, in an elaborate judgment, rightly held that the petitioner was the employer and the members of the respondent-Union were employees under the petitioner. A Division 4 (1978) 4 SCC 257 ::13::
MSR,J wp_47675_2018 Bench upheld this stand and the petitioner has sought special leave from this Court.
While refusing leave and dismissing the SLP the Court held that mere contracts are not decisive and the complex of considerations relevant to the relationship is different; and that 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, though draped in different perfect paper arrangement, that the real employer is the Management, not the immediate contractor. The Court explained :
"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.
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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 the mischief and achieve the purpose of the law and not be misled by the maya of legal appearances.
6. If the livelihood of the workmen substantially depends on labour rendered to produce goods and services for the benefit and satisfaction of an enterprise, the absence of direct relationship or the presence of dubious intermediaries or the make-believe trappings of detachment from the Management cannot snap the real life-bond. The story may vary but the inference defies ingenuity. The liability cannot be shaken off."( emphasis supplied)
49. Since the petitioners work under the supervision of the GHMC employees at the times and places and in the manner directed by the GHMC officials (even if their wages are paid through a contractor), and it is not even disputed that the duties performed by them are in any way different from those performed by regular employees holding the posts of Sanitary Supervisor (SFA), Sanitation Workers, Entomology Field ::15::
MSR,J wp_47675_2018 Workers, Entomology Superior Field Workers, Supervisors (EFA), Superior Field Assistants, I hold that the "outsourcing" system is only a sham and a ruse to avoid extending to the petitioners their genuine service entitlements mentioned above; and that the presence of such intermediary/contractor has to be ignored, and the petitioners ought to be held to have been directly engaged by the GHMC and are also entitled to be considered for regularisation of their services as mentioned below. The decision of the Supreme Court in Uma Devi ( 1 supra)
50. In Uma Devi (1 supra), the Supreme Court has held that any public employment has to be in terms of the constitutional scheme and a sovereign Government, considering the economic situation in the country and the work to be got done, is not precluded from making temporary appointments or engaging workers on daily wages.
It declared that a regular process of recruitment or appointment has to be resorted to when regular vacancies in posts at a particular point of time are to be filled up and filling up of those vacancies cannot be done in a haphazard manner or based on patronage or other considerations. It declared that regular appointments must be the rule.
It then went on to hold that it is ordinarily not proper for the Courts whether acting under Article 226 of the Constitution or under Article 32 of the Constitution, to direct absorption in permanent employment of those who have been engaged without following due process of selection as envisaged by the constitutional scheme. It held that there is only ::16::
MSR,J wp_47675_2018 limited role of equity in such matters and otherwise it would result in perpetuating illegalities and in the jettisoning of the scheme of public employment adopted in the country.
It held that in situations where irregular appointments (not illegal appointments) of duly qualified persons in duly sanctioned vacant posts are made, and all the employees have continued to work for ten years or more, but without the intervention of orders of Courts or of Tribunals, their claim for regularization of services have to be considered on merits.
It directed that the Union of India, the State Governments and their instrumentalities should take steps for regularization, as a one-time measure, the services of such irregularly appointed persons who have worked for ten (10) years or more in duly sanctioned posts but not under cover of orders of Courts or of Tribunals.
It also directed that Court should ensure that regular appointments are undertaken to fill those vacant sanctioned posts.
It directed the said process to be set in motion within six (06) months from the date of pronouncement of its order in Uma Devi (1 supra), i.e., 10.04.2006.
The decision in Nihal Singh
51. Seven years after Umadevi (1 supra), in Nihal Singh and others v. State of Punjab5, the Supreme Court considered the case of 5 (2013) 14 SCC 65 ::17::
MSR,J wp_47675_2018 absorption of Special Police Officers appointed by the State, whose wages were paid by Banks at whose disposal their services were made available. It held that the mere fact that wages were paid by the Bank did not render the appellants 'employees' of those Banks since the appointment was made by the State and disciplinary control vested with the State. It held that the creation of a cadre or sanctioning of posts for a cadre is a matter exclusively within the authority of the State, but if the State did not choose to create a cadre but chose to make appointments of persons creating contractual relationship, its action is arbitrary. It also refused to accept the defence that there were no sanctioned posts and so there was justification for the State to utilise services of large number of people like the appellants for decades. It held that "sanctioned posts do not fall from heaven" and that the State has to create them by a conscious choice on the basis of some rational assessment of need. Referring to Umadevi (1 supra), it held that the appellants before them were not arbitrarily chosen, their initial appointment was not an 'irregular' appointment as it had been made in accordance with the statutory procedure prescribed under the Police Act, 1861, and the State cannot be heard to say that they are not entitled to be absorbed into the services of the State on permanent basis as, according to it, their appointments were purely temporary and not against any sanctioned posts created by the State. It held that the judgment in Umadevi (1 supra) cannot become a licence for exploitation by the State and its instrumentalities and neither the Government of Punjab nor those public sector Banks can continue such a practice consistent with their ::18::
MSR,J wp_47675_2018 obligation to function in accordance with the Constitution. This decision is an apt answer to the contentions raised by the respondents.
52. The creation of a cadre or sanctioning of posts for a cadre is a matter exclusively within the authority of the State and the GHMC, but if they did not choose to create a cadre or fill up the available vacancies in accordance with the applicable procedure /Rules, but chose to make appointments of persons creating contractual relationship, their action would be arbitrary.
53. Thus the respondents cannot avoid recruitment to the posts in question, engage persons like the petitioners through intermediaries/contractors thorough the system of "outsourcing", pay them paltry wages, and deny them regularisation of services saying the decision in Uma Devi ( 1 supra) entitles them to deny relief of regularisation. They cannot take advantage of their own wrong. Engagement of the persons like the petitioners through outsourcing agencies/intermediates violates the law laid own in Uma Devi ( 1 supra)
54. In my considered opinion, the engagement of the persons like the petitioners through outsourcing agencies/intermediates for more than 14 years after the decision in Uma Devi ( 1 Supra), without undertaking any exercise to identify regularly the vacancies in the above posts in the GHMC, and fill them up as per the applicable rules by properly qualified personnel, and engaging person of "outsourcing" basis through intermediaries/contractors, is a violation of the law laid down in the said ::19::
MSR,J wp_47675_2018 decision by the respondents and it also violates art.14,16 and 21 of the Constitution of India.
The M.L.Kesari decision
55. In State of Karnataka and others vs. M.L. Kesari and others6 , the Supreme Court explained the decision in Uma Devi (1 supra) as one meaning that after the decision in Uma Devi (1 supra) each Department or each instrumentally should undertake a one-time exercise and prepare a list of all casual, daily wage or adhoc employees who have been working for more than (10) years without the intervention of Courts and Tribunals and subject them to a process of verification as to whether they are working against vacant posts and possess the requisite services.
56. No exercise as a one time measure to regularise the services of persons like the petitioners appears to have been undertaken even once in the 14 years after the decision in Uma Devi ( 1 Supra) to regularise services of employees like the petitioners who have been working for more than 10 years.
57. Normally posts in State Government and in statutory bodies are filled up by (a) Direct recruitment, (b) by Promotion from a lower post,
(c) by recruitment by transfer ( d) compassionate appointment. These are the constitutional modes of filling up vacant posts in State Government and statutory bodies.
6 (2010) 9 S.C.C. 247 ::20::
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58. No decision is cited by the counsel for the respondents how the mode of employing the petitioners by "out sourcing" them through an intermediate agency is constitutionally valid, except quoting a G.O.Rt.No.4459 dt.27-12-2006 of the Finance (SMPC) Department, of the erstwhile Government of Andhra Pradesh which states:
"5. ..... Government have decided for outsourcing certain services in Government Departments to the agencies and accordingly Government have outsourcing responsibility of supplying required man power to the private agencies. Accordingly Government have permitted several departments to outsource certain functions and functionaries for support services and issued guidelines."
59. GHMC also refers to guidelines 8 and 9 in said G.O.Rt. and states that "outsourcing agency is responsible for payment of remuneration to each individual by the agency".
Re: Telangana (Regulation of Appointments to Public Services, Rationalisation of Staff pattern and pay structure ) Act,1994
60. In this regard it is pertinent to refer to Sec.3 of the Telangana (Regulation of Appointments to Public Services, Rationalisation of Staff pattern and pay structure ) Act,1994 which states:
"3. (1) The appointment of any person in any public service to any post, in any class, category or grade as a daily wage employee is hereby prohibited.
(2) No temporary appointment shall be made in any public service to any post, in any class, category or grade without the prior permission of the competent authority and without the name of the concerned candidate being sponsored by the Employment Exchange."
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61. Act 2 of 1994 prohibits in Sec.7 regularisation of daily wage employees and temporary employees appointed contrary to the Act.
62. Merely because engaging services of personnel on "out sourcing"
basis is not mentioned in Sec.3, it is not permissible for the respondents to adopt the said method.
63. In my opinion, the more crucial provision for our purposes is Section 4 of the said Act which states:
"4.(1) No recruitment in any public service to any post in any class, category or grade shall be made except,--
(a) from the panel of candidates selected and recommended for appointment by the Public Service Commission/College Service Commission where the post is within the purview of the said Commission;
(b) from a panel prepared by any Selection Committee constituted for the purpose in accordance with the relevant rules or orders issued in that behalf; and
(c) from the candidates having the requisite qualification either sponsored by the Employment Exchange or applied in response to the wide publicity of vacancy position through Daily News paper having wider circulation or Employment News Bulletin and also display on the Office Notice Boards or announcement through Radio or Television in other cases where recruitment otherwise than in accordance with clauses (a) and (b) is permissible.
(2) Nothing in sub-section (1) shall apply,-
(a) to the compassionate appointments made in favour of a son or a daughter or spouse of any person employed in public service who dies ::22::
MSR,J wp_47675_2018 in harness or who retires from service on medical grounds, in accordance with the relevant orders issued from time to time;
(b) to the appointments made in favour of a son or daughter or spouse or a grand son (son‟s son) or a grand daughter (son‟s daughter) or a grand son (dependent daughter‟s son) or a grand daughter (dependent daughter‟s daughter) of any married person or a brother or a sister or parent of any unmarried person killed or totally incapacitated in extremist violence or in police firing or bomb-blast or in communal violence irrespective of the age of the killed who is not accused of an offence, made in accordance with the relevant orders issued from time to time.
Explanation:- "totally incapacitated" means certified as such by the Medical Board;]
(c) to the appointments made in favour of members of Scheduled Castes or Scheduled Tribes, who or whose parents or spouse are subjected to atrocities, in accordance with the relevant orders issued from time to time;
(d) to any suitable appointments to be made in compliance with assurance bearing Number 2488/X/96, Assembly Secretariat, dated 10th September, 1996 made on the floor of the Legislative Assembly of the State."
64. It is not even the case of the GHMC, that "outsourcing" employees to discharge it's statutory duties falls within any of the 3 categories mentioned in subsection (1) of section 4 of the Act. Obviously, it is not so.
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65. No doubt the constitutionality of the Act 2 of 1994 was also upheld by the Supreme Court in A.Manjula Bhashini v. A.P.Women Coopertaive Finacial Corporation Ltd.7 The decision in U.V.S.R. Prasad
66. A Division Bench of this Court in U.V.S.R. Prasad and others vs. State of Andhra Pradesh rep. by its Prl. Secretary - Municipal Administration and Urban Development, Guntur District and another8, considered the case of persons employed in the Visakhapatnam Urban Development Authority as Nominal Muster Roll (NMR)s as Technical Work Inspectors between 1990 and 1992.
The Bench followed the judgment in M.L. Kesari (6 supra) which explained the decision in Uma Devi (1 supra) [as one meaning that after the decision in Uma Devi (1 supra) each Department or each instrumentally should undertake a one-time exercise and prepare a list of all casual, daily wage or adhoc employees who have been working for more than (10) years without the intervention of Courts and Tribunals and subject them to a process of verification as to whether they are working against vacant posts and possess the requisite services].
Though reliance was placed on Act 2 of 1994 by the State of Andhra Pradesh in the said case which permitted regularization of persons who fulfil the criteria of five years of services as on 25.11.1993 as per 7 (2009) 8 SCC 431 8 2017 (6) A.L.T. 751 (D.B.) ::24::
MSR,J wp_47675_2018 G.O.Ms.No.212 dt.22.04.1994, the Division Bench in U.V.S.R. Prasad (8 supra) held as follows :
"15. Concededly, the Supreme Court in A. Manjula Bhashini (7 supra) has not referred to the judgment in Uma Devi (1 supra). Thus, in our opinion, the directions given in para 53 of the judgment in Uma Devi (1 supra) and the provisions of Act 2 of 1994 along with its amendments and the judgment in A. Manjula Bhashini (7 supra) operate in different situations.
16. It is trite that the law declared by the Supreme Court is binding throughout the country under Article 141 of the Constitution of India. It is noteworthy that by the time the judgment in Uma Devi (1 supra) was rendered, the provisions of Act 2 of 1994 and G.O.Ms.No.212, dt.22.04.1994, were in existence. The Supreme Court, while denouncing the practice of regularization and absorption of persons, who entered service through backdoors by giving a go-bye to the due procedure prescribed for appointments to public posts, consciously ordered for one-time absorption / regularization of those, who were working for a period of not less than 10 years. It has given directions in this regard to all the State Governments and also Union of India. The Supreme Court is presumed to be conscious of various State enactments such as Act 2 of 1994 and executive orders such as G.O.Ms.No.212, dt.22.04.1994, while giving directions in Para No.53 of the judgment in Uma Devi (1 supra). But sill, it has not made any exception in favour of the States where State enactments banning regularization / absorption exist. Therefore, Act 2 of 1994 and G.O.Ms.No.212, dt.22.04.1994, do not whittle down the width and the judgment in Manjula Bashini (7 supra) does not lower the trajectory of the directions issued by the Supreme Court in Para 53 of its judgment in Uma Devi (1 supra). It is, therefore, not permissible for the respondents to take shelter under Act 2 of 1994 and G.O.Ms.No.212, dt.22.04.1994, to deny regularization to the petitioners, who have, admittedly, satisfied the criteria laid down in Para No.53 of the judgment in Uma Devi (1 supra).
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18. For the aforementioned reasons, order dt.27.06.2017 in O.A.No.1442 of 2014, on the file of the Tribunal is set aside and the Writ Petition is allowed with the direction to the respondents to consider regularization of the services of the petitioners against the existing vacancies of Work Inspectors and appoint them subject to their satisfying the criteria laid down in Para No.53 of the judgment in Uma Devi (1 supra). This process must be completed within two months from the date of receipt of a copy of this order."
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67. The ratio of the decision of the Division bench in U.V.S.R.Prasad ( 8 supra) that Act 2 of 1994 does not whittle down the width and the judgment in Manjula Bashini (7 supra) does not lower the trajectory of the directions issued by the Supreme Court in Para 53 of its judgment in Uma Devi (1 supra), still holds good.
68. In view of this binding precedent, I hold that, notwithstanding the provisions of the Act 2 of 1994, the mandate in Uma Devi ( 1 supra) to do periodic regular recruitment of qualified personnel for vacant posts and regularise the services of those engaged for more than 10 years, as a one time measure, has not been diluted.
69. 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.
70. It is, therefore, not permissible for the respondents to take shelter under Act 2 of 1994 to deny regularization to the petitioners, who have, admittedly, satisfied the criteria laid down in Para No.53 of the judgment in Uma Devi (1 supra).
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71. Therefore I hold that
(a) the respondents' action in engaging the petitioners on "outsourcing basis" as Sanitary Supervisors (SFA), Sanitation Workers, Entomology Field Workers, Entomology Superior Field Workers, Supervisors (EFA), Superior Field Assistants through intermediaries/agencies/contractors is contrary to law, violative of Article 14, 16 and 21 of the Constitution of India and also the law declared by the Supreme Court in Uma Devi (1 supra) mandating periodic regular recruitment to sanctioned posts;
(b) the respondents cannot contend that the petitioners are not entitled to be considered for regularisation of their services in the said posts on the ground that they were not regularly recruited through a process of selection as per the applicable service rules in view of para 53 of the decision in Uma Devi (1 supra) which permits one time exercise of regularisation to be done for persons employed on temporary basis/daily wages etc. who have rendered continuous service for more than ten (10) years.
(c) and consequently, the respondents, while continuously engaging the services of the petitioners directly henceforth, shall consider the case of the petitioners for regularisation of their services in the posts whose work they are discharging now, by ignoring the existence of the intermediaries/agencies/contractors in the posts of Sanitary Supervisor (SFA), Sanitation Workers, Entomology Field Workers, Entomology Superior Field Workers, Supervisors ::27::
MSR,J wp_47675_2018 (EFA), Superior Field Assistants within two (2) months from the date of receipt of a copy of the order.
Regarding payment of minimum of time scale of pay attached to the posts to the petitioners
72. The Supreme Court in Jagjit Singh (3 supra) reviewed the entire case law up to 2016 and held that:
(a) an employee engaged for the same work cannot be paid less than another who performs the same duties and responsibilities, certainly not, in a welfare State; that such action is demeaning and strikes at the very foundation of human dignity.
(b) anyone who is compelled to work at a lesser wage does not do so voluntarily and he does so only to provide food and shelter to his family, at the cost of his self respect and dignity, at the cost of his self worth, and at the cost of his integrity.
(c) any act of paying less wages as compared to others similarly situate constitutes an act of exploitative enslavement, emerging out of a domineering position and that the said action is oppressive, suppressive and coercive, as it compels involuntary subjugation.
(d) with reference to the application of the principle of "equal pay for equal work", the sole factor that requires determination by the Court is, whether the employees before the Court were rendering similar duties and responsibilities as were being discharged by regular employees holding the same/corresponding posts.
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73. Though the said decision dealt with temporary employees such as daily wage employees, ad hoc appointees, employees appointed on casual basis, contractual employees and the like, in my considered opinion, the principle of "equal pay for equal work" laid down in the said decision would equally apply to the claim of outsourced employees like the petitioners for wages/salary on a par with the minimum of pay scale of regularly engaged employees holding the same posts.
74. A Division bench of this Court presided over by the Hon'ble Chief Justice held in it's order dt.1.5.2019 in W.A.No.396 of 2019 that the important thing is not whether the employee has been appointed in an irregular vacancy, but whether the employee continues to discharge the same set of duties as has been discharged by the regular employee or not.
75. It is not in dispute that petitioners are not discharging duties identical to the posts of Sanitary Supervisor (SFA), Sanitation Workers, Entomology Field Workers, Entomology Superior Field Workers, Supervisors (EFA), Superior Field Assistants under supervision of the GHMC for more than ten (10) years.
76. Accordingly, I also hold that the petitioners are entitled to minimum of time scale of pay attached to the posts of Sanitary Supervisor (SFA), Sanitation Workers, Entomology Field Workers, Entomology Superior Field Workers, Supervisors (EFA), Superior Field Assistants in which they are now discharging their functions till their claim for regularisation is considered by the GHMC in accordance with para 53 of the decision in Uma Devi (1 supra).
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77. Such payments shall be made by the GHMC directly to the petitioners w.e.f the date of filing of this Writ petition ( after deducting the payments already received by them during this period form the contractor/intermediary) and shall be continued till the cases of the petitioners are considered for regularisation by the GHMC. The arrears upto 31.7.2020 shall be paid on or before 15.9.2020.
78. Accordingly, I do not find any reason to vacate the order dt.31.12.2018 in I.A.No.1 of 2018 in W.P.No.47675 of 2018. Consequently, I.A.No.1 of 2019 is dismissed.
79. In the result,
(a) The Writ Petition is allowed;
(b) the respondents' action in engaging the petitioners on "outsourcing basis" as Sanitary Supervisors (SFA), Sanitation Workers, Entomology Field Workers, Entomology Superior Field Workers, Supervisors (EFA), Superior Field Assistants through intermediaries/agencies/contractors is contrary to law, violative of Article 14, 16 and 21 of the Constitution of India and also the law declared by the Supreme Court in Uma Devi (1 supra) mandating periodic regular recruitment to sanctioned posts;
(c) that the "outsourcing" system adopted by the GHMC is only a sham and a ruse to avoid extending to the petitioners their genuine service entitlements; and that the presence of such intermediary/contractor has to be ignored, and the petitioners are ::30::
MSR,J wp_47675_2018 held to have been directly engaged by the GHMC and they are also held entitled to be considered for regularisation of their services;
(d) consequently, the respondents, while continuously engaging the services of the petitioners directly henceforth, are directed to consider the case of the petitioners for regularisation of their services, by ignoring the existence of the intermediaries/agencies/contractors in the posts of Sanitary Supervisor (SFA), Sanitation Workers, Entomology Field Workers, Entomology Superior Field Workers, Supervisors (EFA), Superior Field Assistants within two (2) months from the date of receipt of a copy of the order.
(e) the petitioners are entitled to minimum of time scale of pay attached to the posts of Sanitary Supervisor (SFA), Sanitation Workers, Entomology Field Workers, Entomology Superior Field Workers, Supervisors (EFA), Superior Field Assistants in which they are now discharging their functions till their claim for regularisation is considered by the GHMC in accordance with para 53 of the decision in Uma Devi (1 supra); and such payments shall be made by the GHMC directly to the petitioners w.e.f the date of filing of this Writ petition ( after deducting the payments already received by them during this period from the contractor/intermediary) and shall be continued till the cases of the ::31::
MSR,J wp_47675_2018 petitioners are considered for regularisation by the GHMC. The arrears upto 31.7.2020 shall be paid on or before 15.9.2020.
(c) I.A.No.1 of 2019 is dismissed. No costs.
80. As a sequel, miscellaneous petitions pending if any, in this Writ Petition, shall stand closed.
____________________________ M.S. RAMACHANDRA RAO, J Date: 07.08.2020 Vsv