Central Administrative Tribunal - Chandigarh
Jaspal Singh vs Director Health Services Ut on 18 December, 2024
1 (OA No. 060/748/2017)
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
Reserved on: 10.10.2024
Pronounced on: 18.12.2024
OA No. 060/748/2017
HON'BLE SH. RAMESH SINGH THAKUR MEMBER (J)
HON'BLE MRS. ANJALI BHAWRA, MEMBER (A)
1. Jaspal Singh S/O Sh. Bhajan Singh, resident of House
No.144, Village Faidan Near Air Port, Chandigarh.
2. Rashpal Singh S/O Sh. Sher Singh, resident of Village
Modhi Khurd, Tehsil Rajpura, District Patiala.
3. Sohan Singh S/O Sh. Kalyan Singh, resident of H.
No.1531, Block F, Adarsh Nagar, Naya Gaon, District
Mohali.
4. Amarjeet Singh S/O Sh. Kirpal Singh, resident of Village
Mataur (Sector 70), Tehsil and District Mohali.
5. Sukhdev Singh S/O Sh. Mohinder Singh, R/O H. No.859,
Phase-II, Ram Darbar, U.T. Chandigarh.
6. Harpal Singh S/O Sh. Mehma Singh, resident of Village
Khizrabad, District Mohali (Punjab).
.......... Applicants
(BY Advocate: Sh. R.K. Sharma)
Versus
1. Union Territory, Chandigarh through Finance Secretary-
cum-Secretary Health, U.T. Chandigarh, U.T. Secretariat,
Sector 9, Chandigarh.
2. Director Health Services, Union Territory, Multi-Speciality
Hospital, Sector 16, Chandigarh.
3. Assistant Director (Health) Malaria, Chandigarh
th
Administration, Deluxe Building, 4 Floor, Sector 9,
Chandigarh.
2 (OA No. 060/748/2017)
.................Respondents
(BY Advocate: Sh. Rajesh Punj through VC)
ORDER
Per: SH. RAMESH SINGH THAKUR MEMBER (J):
1. This Original Application has been filed under Section 19 of the A.T. Act, 1985 seeking the following relief(s):-
I. Against Notice published in „The Pioneer‟ Newspaper dated 18.07.2015, copy Annexure A-1 issued by the Respondent No.2 whereby vacancy for the post of Sanitary Beldar notice as published in Aaj Samaj dated 28.05.2013 which was later on re-advertised in Employment News 19-27 July, 2014 as well as in Pioneer-English (27.07.2014), Dainik Jagran-Hindi (26.07.2014) and Punjabi Tribune (27.07.2014) has been cancelled on administrative grounds, being illegal, arbitrary, discriminatory and against the statutory Recruitment Rules and the law settled by the courts of law including the Hon‟ble Allahabad High Court reported as 2014(3) SLR 688, Ravendra Singh and others Versus State of U.P. and another and quashing thereof.
II. Against decision of the respondents whereby they have pretended to outsource the regular vacancies of Sanitary Beldar on the plea that the Punjab Government has taken a decision to outsource Group „D‟ posts vide letter dated 18.03.2011 as followed by the respondents vide letter dated 07.11.2014, copy Annexure A-2, whereas the decision of the Punjab Government has already been withdrawn to outsource the post of Drivers and Class-IV vide policy decision dated 05.05.2015 and the respondents having already promoted five incumbents to the post of Sanitary Beldars vide order dated 26.06.2014 and also having issued the orders of regularization of service of Group „C‟ and „D‟ employees vide policy decision dated 08.01.2015.3 (OA No. 060/748/2017)
Similarly there being no Group „D‟ existing in the Central Government after acceptance of the recommendations of the 6th Central Pay Commission, both the grounds taken by the respondents to outsource the regular vacancies fall to ground and as such, impugned order dated 07.11.2014, Annexure A-2 has become redundant and as such quashing thereof or declaring the same to be redundant.
III. Against order No. 27/4/9-UTFII(12)-2015/1247 dated 12.02.2015, copy Annexure A-3, alongwith advice of the Finance Department, issued by Respondent No.1 to the Secretary Health, Chandigarh Administration vide which AD has been advised not to fill up Group-D posts and instead outsource the activities as per instructions issued by the Finance Department from time to time and quashing thereof. IV. For issuance of directions to the respondents to complete the recruitment process qua the vacancies which were advertised vide advertisement published in Aaj Samaj dated 28.05.2013 which was later on re-advertised in Employment News 19-27 July, 2014 as well as in Pioneer-English (27.07.2014), Dainik Jagran- Hindi (26.07.2014) and Punjabi Tribune (27.07.2014) and to consider claim of the applicants after grant of age relaxation in terms of judgment dated 23.07.2014 already rendered by this Hon‟ble Tribunal in O.A. No. 591/CH/2012 titled Jaspal Singh and others Versus Union Territory, Chandigarh and others and connected OAs.
2. The facts as projected by the applicant in his Original Application are that the respondent administration is running National Vector Borne Disease Control Programme and for which sanction of the posts of Seasonal Sanitary 4 (OA No. 060/748/2017) Beldars on year to year basis for a period of six to eight months is issued every year and the incumbents are appointed to carry out anti malaria work. That the Chandigarh Administration is having 80 sanctioned posts of Seasonal Sanitary Beldars, sanctioned on year to year basis for engaging Muster Roll Beldars and the qualification is 8th pass. In that process, all the applicants who possess 10+2/10th qualification were initially engaged in the year 2000-02 who continued performing their duties on six monthly basis upto 30th November, 2011, their full particulars are given in Annexure A-4. They all belong to OBC category except applicant No. 4 Amarjeet Singh. Every year there used to be formal interview and they used to be re-engaged. Last duty performed by the applicants were upto 30.11.2011 and they were not selected for the year 2012 presumably on the ground that they were overage. In the year 2000, 27 persons were regularized whose names are mentioned in para 4 (7) at page 9 of the paperbook.
3. The applicants had continued till 30.11.2011 when all the Seasonal Sanitary Beldars were 5 (OA No. 060/748/2017) relieved and an interview was conducted on 18.04.2012, but the applicant were not engaged leading to filing of OA No. 591/CH/2012 titled Jaspal Singh and others Vs. Union Territory, Chandigarh and Others and applicant No. 6 filed OA No. 1475/PB/2013 titled Harpal Singh Vs. Union Territory, Chandigarh and others. During the pendency of the Original Applications, the respondents issued advertisement 28.05.2013 for 40 posts of Sanitary Beldars. However, claim of the applicants was not considered on the ground of being overaged. Consequently, the applicants moved M.A. No. 798 of 2013 in O.A.No. 591/CH/2012 and M.A.No.786/2013 in O.A. No. 663/PB/2012 in connected case and the Division Bench of this Hon‟ble Tribunal was pleased to direct the respondents to consider the applicants by giving age relaxation to the extent service rendered by them in the department as seasonal Sanitary Beldars.
4. It is further averred that the applications of the applicants were entertained as the applicants fulfilled all the requirements of the advertisement and the O.A. No. 591/CH/2012 and connected 6 (OA No. 060/748/2017) Original Applications were disposed of vide order dated 23.07.2014. The respondents issued fresh advertisement. The applicants applied but the respondents were not considering the applicants leading to filing of C.P. No. 060/00041/2015 in O.A. No. 591/CH/2012 in case of applicants No.1 to 5 and C.P. No.060/00040/2015 in O.A. No. 1475/PB/2013 in case of applicant No.6. During pendency of the Contempt Petitions, respondents took the plea that the Punjab Government has outsourced Class IV jobs vide letter dated 18.03.2011 and Central Government has also outsourced. Consequently they withdraw the advertisement issued for the post of Sanitary Beldars. The applicants moved M.A. No. 060/00107/2015 bringing on record that even if the Chandigarh Administration has withdrawn advertisement issued on 2014, the advertisement issued in 2013 is still intact that this advertisement of 27.07.2014 has been wrongly and illegally withdrawn. Since the respondents had withdrawn the advertisement itself, so this Hon‟ble Bench was pleased to dispose of the Contempt Petition vide order dated 21.07.2015 7 (OA No. 060/748/2017) granting liberty to the applicants to challenge decision of the respondents as per rules and law.
5. Applicants consequently approached this Hon‟ble Tribunal by filing O.A. No.060/00722/2015 on 08.08.2015. However, the said O.A. was withdrawn with liberty to file fresh O.A. Hence this OA.
6. Respondents have contested the claim of the applicants by filing the written statement taking therein plea that they have decided in public interest and the Finance Department has ordered outsourcing but they have not placed on record any material or any order of the competent authority allowing outsourcing of the Sanitary Beldars.
7. The respondents also referred to the Apex Court judgement in the case of the Secretary State of Karnataka and Others Vs. Umadevi and Others decided on 10.04.2006 wherein it has been held that "the appointment to any post under the State can only be made after a proper advertisement has been made inviting applications from eligible candidates and holding of selection by a body of experts or a specially 8 (OA No. 060/748/2017) constituted committee whose members are fair and impartial through a written examination or interview or some other rational criteria for judging the inter se merit of candidates who have applied in response to the advertisement made. A regular appointment to a post under the State or Union cannot be made without issuing advertisement in the prescribed manner which may in some cases include inviting applications from the employment exchange where eligible candidates get their names registered. Any regular appointment made on a post under the State or Union without issuing advertisement inviting applications from eligible candidates and without holding a proper selection where all eligible candidates get a fair chance to compete would violate the guarantee enshrined under Article 16 of the Constitution ( B.S. Minhas Vs. Indian Statistical Institute and others AIR 1984 SC 363)."
8. The respondents further submitted that the applicants were not engaged during the year 2012 because of becoming overaged. The Department introduced some newcomers every 9 (OA No. 060/748/2017) year keeping in view the new spirit and efficiency of work replacing some old workers and as per Recruitment rules and conditions of requisition, the overage candidates cannot be appointed on the post of Seasonal Sanitary Beldar. Moreover, the applicants were not continuing on contract/daily wages, muster roll basis. They were appointed as Seasonal Basis for a fixed period of four/six months and relieved after expiry of seasonal term every year.
9. The applicant rebutted the grounds taken by the respondents by filing a replication.
10. We have heard the learned counsels for the parties and have carefully gone through the pleadings on record.
11. Learned counsel for the applicant submits that the post of Sanitary Beldar is governed by the Statutory Recruitment Rules and there is no amendment to the said Rules and in view of the law laid down by the Hon‟ble Allahabad High Court reported as 2014(3) SLR 688, Ravendra Singh and others Versus State of U.P. and another, if a post is governed by the statutory Recruitment Rules, it cannot be outsourced as 10 (OA No. 060/748/2017) outsource is not source of Recruitment and as such, the post has to be filled up according the statutory Recruitment.
12. The relevant paragraphs of the judgement passed by the Allahabad High Court in Ravendra Singh & Ors. (supra) are as follows:-
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6. The only question is, "whether appointment on Class-IV posts, governed by statutory rules, can validly be prohibited by Government Order dated 08.09.2010".
Xxxxxxxxxxxxxxxx Xxxxxxxxxxxxxxxx WhatisOutsourcing
14. When this Court proceed toconsider the meaning and ambit of the term "Outsourcing"; immediate questions arise(a) what is outsourcing;
(b) what can be outsourced; (c) where one can find outsourcing resources; and,(d) is it a unikind ofsystem or multiple kind.
15. The term "outsourcing" is not a very commonly recognized term in Dictionaries but some recent and revised editions contain this term and define it.
16. The "Concise Oxford English Dictionary Indian Edition" (11th Edition Revised) (2008) published by Oxford University Press, New Delhi at page 1017 defines the term "outsourcing" as under:
"Outsourcingobtain by contract from an outside supplier."
17. "Wikipedia" describes the term "outsourcing" as "the process of contracting a business function to someone else". In the commercial world, particularly among the managerial class, the term "Outsourcing" is known in various ways. According to some "Outsourcing" is any task, operation, job or process that can be performed by employees of company, but is instead, contracted to a third 11 (OA No. 060/748/2017) party for a significant peri0d of time. Hiring a temporary employee when a regular employee in an institution is on leave is not "Outsourcing". According to some others, "Outsourcing" is contracting with other company or persons to do a particular function. Normally outsourcing is resorted to such functions which are considered "non-core to the business". Another definition or meaning of "Outsourcing" is that it is simply farming out of services to a third party. The central idea, therefore, discerned from above is, that, "Outsourcing" is the process of contracting a function to someone else. Its opposite is "Insourcing".
18. "Insourcing" has been identified as a mean to ensure, control, compliance and to gain competitive differentiation through vertical integration or the development of shared services."Insourcing" is also called as vertical integration.
19. "Outsourcing" is considered to be something more than purchasing and more than consulting. It is a long term results oriented relationship for a whole activity, normally commercial, over which the Provider has a large amount of control and managerial discretion."Outsourcing" is the use of outside business relationship to perform necessary business activities and processes in lieu of internal capabilities. The most common forms of outsourcing presently known are "Information Technology Outsourcing" (ITO), "Business Process Outsourcing" (BPO) and Knowledge Process Outsourcing" (KPO). Business Process Outsourcing encompasses, Call Center Outsourcing, Human Resources Outsourcing, Finance and Accounting Outsourcing and Claims Processing Outsourcing.
20. The organizations want to seek "Outsourcing", normally take into account the issues like cost savings, focus on core business, cost restructuring, improvement of quality, access and availability of better knowledge and experience, operational expertise, access to talent, capacity management, catalyst for change, enhancement for capacity of innovation, reduction of time in production of a product for supply to the market, Commodification, Risk Management, Tax Benefit, Venture Capital, Scalability, Creating Leisure Time, Reducing Liability, Revenue etc. 12 (OA No. 060/748/2017)
21. "Outsourcing", therefore, is the use of outside business relationship to perform necessary business activities and processes in lieu of internal capabilities. Those who provide "Outsourcing" facilities are called Outsourcing Partners, Outsourcing Suppliers and Providers. Those who go to purchase outsourcing services are called "Buyers" and "Users" in common parlance. The key to the definition of "Outsourcing" is the aspect of transfer of control. In Outsourcing, the Buyer normally does not instruct Supplier how to perform its task but, instead focuses on communicating what results it want to buy. It leaves the process of accomplishing those results to supplier. xxxxxxxxxxxxxxxxxx
50. In my view, therefore, though the concept of making available the staff to perform Class-IV job by outside agency though termed "Outsourcing", but it is nothing than a system of supply of work force through a contractor or a person who satisfy the term "contractor" for all purposes though termed as "outsourcing". Hence the system as contemplated in Para 2 of impugned G.O.is evidently exploitative, arbitrary, unreasonable, irrational, illogical, hence violative of Article 14 and 16 of the Constitution.
51. This Court has also considered Para 2 of G.O. dated 06.01.2011in Writ Petition No. 36249 of 2011, Luv Kush Pandey Vs. State of U.P. and others, decided on 14.10.2011and has referred to various statutory provisions in Act, 1921 and Regulations framed thereunder. However, while reading down the G.O. so as not to cover the vacancies occurred before issuance of said order, the Court has observed as under:
"Learned counsel for the State has not been able to satisfy the object behind banning the regular process of appointment against a clear vacancy on class IV post and getting it filled up by outsourcing.
The outsourcing, not being a matter of recruitment under the Act and the Regulations, could not have been introduced by means of a Government Order. It is also to be taken note of that in the instant case the vacancy had occurred on 28.2.2010, i.e. much before the issuance of Government Order dated 6.1.2011. Prior permission was granted by the Director of Education on 21.12.2010, i.e. before the 13 (OA No. 060/748/2017) issuance of the aforesaid Government Order. The appointment, however, was made after issuance of the Government Order "erdated6.1.2011.Thevacancyhaving occurred prior to the Government Order dated 6.1.2011, cannot be taken to be a future vacancy so as to restrain the Principal from filling up the post for both the reasons aforesaid, viz. (1) the restraint order could not have been issued for banning the appointment on a clear vacancy of class IV post through regular process of appointment and substituting it by a new method of appointment which is not envisaged under the Act and the Regulations framed thereunder and also for the reason that the aforesaid ban, if at all is to be upheld then it has to be read down for appointments on future vacancies i.e. which had occurred after the issuance of the Government Order dated 6.1.2011 and not for the vacancies which had occurred earlier."
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55. In view of above discussion, I have no hesitation in holding that para 2 of the Government Order dated 08.09.2010 is patently illegal, arbitrary and ultra vires of the statutes, i.e. Act, 1861 read with Rules 2009, as also violative of Articles 14, 16 and 19 of the Constitution, and, is accordingly struck down."
13. The grounds taken by the respondents that they are outsourcing the post of Sanitary Beldar by following the Punjab Government instructions as well as the instructions of the Central Government is against the record and the facts in as much as the instructions issued by the State of Punjab for outsourcing Group D posts in the year 2015 were withdrawn vide instructions dated 05.05.2015. Secondly, there is no Class IV post under Central Govt. After 01.01.2006 14 (OA No. 060/748/2017) and all the posts have been converted into MTS (Group C) i.e. Class III.
14. In the instant case, the respondents have advertised the post of Sanitary Beldar on 28.05.2013 as per the Health Department Services, Recruitment Rules (Pest Control and Malaria Organization) Class IV. With the intervention of the Tribunal, the applicants were allowed to appear for the same. Subsequently, the said advertisement for the post of Sanitary Beldar was withdrawn. The same is under challenge before this Tribunal. The respondents have issued the instructions qua the engagement of Sanitary Beldar by way of outsourcing. The case of the applicants is that the Rules have been framed under Article 309 of the Constitution and the filling of the posts by way of outsourcing is not the prescribed mode in the said Rules.
15. This Tribunal has considered the matter and in view of the judgement passed by the Allahabad High Court in the matter of Ravendra Singh & Ors. (supra) wherein it has been specifically held that the Statutory Rules provide for the mode that should be adhered to. In the instant case, the Recruitment Rules of the post 15 (OA No. 060/748/2017) of Sanitary Beldar do not provide for recruitment through outsourcing and the present case is covered by the judgement passed by the Allahabad High Court in the matter of Ravendra Singh & Ors. (supra).
16. In view of the foregoing discussion, the present Original Application is allowed. The impugned order whereby the advertisement qua the filling up of the post of Sanitary Beldar has been cancelled is hereby quashed and set aside. The respondents are directed to complete recruitment process initiated vide advertisement dated 28.05.2013 which was later on re- advertized in the Employment News 19-27 July, 2024 as well as in Pioneer English dated 27.07.2014, Dainik Jagran - Hindi dated 26.07.2014 and Punjabi Tribune dated 27.07.2014 and to consider only those persons who had applied in response thereto and in case the applicants are found suitable, they be offered appointment accordingly. The relevant exercise be carried out within two months from the date of receipt of a copy of this order.
17. However, there shall be no order so as to costs.
(ANJALI BHAWRA) (RAMESH SINGH THAKUR)
Member (A) Member (J)
ND*