IN THE HIGH COURT OF TELANGANA AT HYDERABAD
W.P. No. 26584 of 2019
Between:
M. Anjaiah and others
... Petitioners
And
The Director, Telugu Academy,
Himayathnagar, Hyderabad.
... Respondent
JUDGMENT PRONOUNCED ON: 15.11.2022
THE HON'BLE MRS JUSTICE SUREPALLI NANDA
1. Whether Reporters of Local newspapers : yes
may be allowed to see the Judgment?
2. Whether the copies of judgment may be
marked to Law Reporters/Journals? : yes
3. Whether Their Lordships wish to
see the fair copy of the Judgment? : yes
____________________
SUREPALLI NANDA, J
WP_26584_2019
2 SN,J
THE HON'BLE MRS JUSTICE SUREPALLI NANDA
W.P. No. 26584 of 2019
% 15.11.2022
Between:
# M. Anjaiah and others
... Petitioners
and
$ The Director, Telugu Academy,
Himayathnagar, Hyderabad.
.....Respondents
< Gist:
> Head Note:
! Counsel for the Petitioner : Sri M.Venkanna
^Counsel for the Respondents: Sri Dadi Radhakrishna
? Cases Referred:
1. (2013) 14 SCC 65
2. (2017) 1 SCC 148
3. 2006 (4) SCC 1
4. (1978) 4 SCC 257
WP_26584_2019
3 SN,J
THE HON'BLE MRS JUSTICE SUREPALLI NANDA
W.P. No. 26584 of 2019
ORDER:
Heard learned counsel for the petitioners and learned standing counsel appearing on behalf of the respondent.
2. This writ petition is filed to issue an appropriate writ or writs or order or orders more particularly in the nature of Writ of Mandamus directing the respondent to regularize the services of the petitioners in consideration of their long service more than 10 years as Hamalis divided into three categories, namely, skilled, semi-skilled and un-skilled in the light of the judgment and order of the Apex Court in the case of State of Karnataka v Umadevi that was followed in subsequent cases by this Court.
3) The case of the petitioners, in brief, is as follows:
a) The petitioners have been employed in the respondent's academy as Hamalis by designation and they are engaged to discharge the duties as skilled, semi-skilled and unskilled daily wage workers against the persistent and perennial nature of work of loading and unloading of Books published by the WP_26584_2019 4 SN,J academy. The respondent academy has its selling outlets in each District Head Quarters and as well as important town across the erstwhile undivided State of Andhra Pradesh.
b) The respondent academy was pleased to direct the payment of wages to the disbursing authority for the months of April, and May, 2014 the statement of wages duly passed as bill on which the signatures of the petitioners in token of having received their wages for the days they were engaged on duty continuously. The respondent academy granted payment of incentive for 15 days wages for the year 2014, but the said incentives have been abruptly discontinued in the subsequent years.
c) The petitioners made a representation to the District Collector, Ranga Reddy District for implementation of Minimum Wages for the year 2018 and 2019 and the District Collector was pleased to issue proceedings dated 27.12.2018 whereby the minimum wages have been increased for un- skilled workers from Rs.357/- to Rs.522/-,for semi-skilled workers from Rs.443/- to Rs.648/-, for the skilled worker from Rs.533/- to Rs.730/- per day.
WP_26584_2019
5 SN,J
d) When the respondent academy declined to implement
the said orders, the petitioner again made a representation on 26.03.2019, but in vain. Then the petitioners constrained to organize a dharna on 17.06.2019 and made another representation. The respondent academy implemented enhanced rates w.e.f. 01.07.2019 instead of 01.07.2018. The payment of wages for the period from 16.05.2019 to 31.05.2019 were released vide sanction dated 04.06.2019.
e) The petitioners have been uniformly designated as Hamalis, but they are being utilised against a specific category of work like librarian, proof reader, clerk, DTP Operator, Computer operator, accountant, attenders, scavenger, sweepers, godown watchman, despatch clerk, drivers, sales clerk, printing clerk.
f) The respondent academy without considering the long services of the petitioners for more than 10 years, issued impugned tender notification inviting outsourcing agencies for maintenance of cleanliness and book loading and unloading. On appointment of the said agencies in pursuance of the impugned tender notifications, the petitioners would be put to WP_26584_2019 6 SN,J irreparable loss and damage and at this age of more than 40 years of each employee cannot be engaged in the gainful employment as they are used only to the known work to the description of their respective duties in which they are being engaged. Hence, this writ petition.
4. The respondent filed counter affidavit, in brief, is as follows:
a) Present Director of the respondent academy filed counter affidavit denying the allegations made in the writ affidavit except those that are specifically admitted thereunder. The 1st petitioner filed W.P.No.25745 of 2022 to direct the respondent not to change his post as librarian to that of clerk.
b) The present writ petition is not maintainable as there is no employer and employee relationship between the petitioner and the respondent and that there is no cause of action to approach this Court and that the petitioners misrepresented the facts for maintaining the writ petition. Therefore, the writ petition is liable to be dismissed.
WP_26584_2019
7 SN,J
5. The additional counter affidavit filed by the
respondents, in brief, is as follows:
(a) The respondent academy filed a counter affidavit that the respondent has ever right to engage an outsourcing agency for the works to be done in the office and whereas the outsourcing agency was already engaged in the year 2019 itself and the said contract of supply of man power on the basis of work mode was already over i.e. upto 31.03.2022 and again another outsourcing agency was engaged from 01.04.2022 till 31.03.2022 and the facts maintaining the writ petition is not tenable and the same is liable to be dismissed.
b) The respondent academy was recently bifurcated on 26.04.2022 and funds as well as employees were distributed among Telangana and Andhra Pradesh Academies.
c) The petitioners are purely working on outsourcing basis. Until and unless outsourcing agency submits the employees particulars those who are engaged through the agency, disbursement of payment towards their salaries does not arise. Therefore, claiming payment of pay and allowances for WP_26584_2019 8 SN,J the period of April, 2022 to till date does not arise and prayed to dismiss the writ petition.
PERUSED THE RECORD :
6. The petitioner filed this writ petition to issue a writ or writs or order or orders more particularly in the nature of Writ of Mandamus directing the Respondent to regularize the services of the Petitioners in consideration of their long service more than 10 years as Hamalis divided into three categories namely skilled semi-skilled and un-skilled in the light of the judgment and order of the Apex Court in the case of State of Karnataka Vs Uma Devi that was followed in subsequent cases by this Honble Court in the interest of justice.
7. The counter affidavit paras 1 & 2 and paras 21, 22 and 23 which are relevant are as follows:
Para 1, 2 :
The present Writ Petition is not maintainable either under law or on facts as these Petitioners have no locus standi to seek the relief as claimed for the reason that there is no privity of contract nor nexus with this respondent as they all are working through an outsourcing agency. This respondent has no administrative control or any authority over these Petitioners. Admittedly these Petitioners have given consent WP_26584_2019 9 SN,J letter exercising their option to discharge their work through an out-sourcing agency and accordingly, pursuant to their consent given by them the Respondent utilizing their services whenever needed through an out-sourcing agency. These Petitioners are all working on this method for the last one year, availing the benefits of ESI and PF. In such an event there is no right for justification to seek their services to be regularized. The Petitioners having accepted such mode of method for extending their services, they are estopped for making the claim made in the present Writ Petition. There are no bonafide in their approach seeking relief against this Respondent when admittedly they are no longer working with this Respondent directly. So long as their consent letter in Vogue they can't seek any relief as claimed and more so presently all are working through the Out-sourcing agency as such this relief is farfetched. The judgement reported in Uma Devi case is not applicable to the facts of the case. The said judgment is not applicable to the Out-sourcing workers.
Para 21 & 22 :
In response to the para, it is submitted that persons engaged for the works which are of not in perennial nature i.e., persons engaged only for loading and unloading of books as and when they required, but, not in sanctioned posts. They are not selected either through the process of open competition scheme. No petitioner had put in 10 years of continuous service as on 10.04.2006. Hence they are not covered under Para 53 in the case of State of Karnataka vs. Uma Devi.
Para 23 :
It is to submit that no petitioner as on this date is working directly under the control of Telugu Akademi and they themselves opted for EPF, ESI and working under third party control from 01.12.2019 hence there is no infringement of any rights much less the rights guaranteed by the Constitution of India.
8. The Petitioners filed I.A.No.3 of 2002 in W.P.No.26584 of 2019 with a prayer directing the Respondents to cause the payment of pay and WP_26584_2019 10 SN,J allowances for the period of April 2022 to till date and to continue to pay regular pay and allowances in the interest of justice.
9. Paras 4 & 5 of the Additional Counter Affidavit filed by the Respondent in August 2022 reads as under:
Para 4 :
It is submitted that at the outset, the present I.A.No.3/2022 filed in the Writ Petition is not maintainable as there is no employer and employee relationship between the petitioner and the respondent has every right to engage an outsourcing agency for the works to be done in the office and whereas the outsourcing agency was already engaged in the year 2019 itself and the said contract of supply of man power on the basis of work mode was already over i.e., upto 31.03.2002 till 31.03.2023 and the facts maintaining the Writ Petition before this Hon'ble Court is not tenable and as such the same is liable to be dismissed in limini.
Para 5 :
It is submitted that at the time of the Writ Petition, this Respondent organization was not bifurcated and recently on 26.04.2022 it was bifurcated and funds as well as employees were distributed among Telangana and Andhra Telugu Academies.
Para 7 :
It is pertinent to note that this Hon'ble Court was pleased to make an observation in their order dt. 31.01.2020, that "Learned Standing Counsel seeks time to file counter and informs the court that the Respondents are not taking any steps for terminating the services of the Petitioner."
WP_26584_2019 11 SN,J
10. In I.A.No.2 of 2022, it is specifically averred at Para 8 by the Petitioners as follows :
Para 8 :
It is not out of place to mention that the respondent Academy was pleased to supply information to the petitioner as to the total cadre Strength, Working Strength, the availability of vacancies. As per the information available to the there are 25 vacancies of Class IV, 45 vacancies in Administrative Staff. The petitioners while working against the vacant post of Class IV for last more than 10 years have also discharging the duties of the administrative staff like the accountants, librarian, data operators, typists, Photocomposing operators, Printing Assistants etc.. This being vacancy position for last so many years, the respondents are not regularizing the services of the petitioners even after filing the Interlocutory Application No. 1 of 2020 duly enclosing the Judgment and Order of this Hon'ble High court dated 07-8-2020 in WP NO. 47675 of 2018, whereby in the similar circumstances, a direction was given to the respondents therein to regularize the services immediately and pay the salaries applicable to the regular employees after deducting the already paid salary. Contrary to the above said judgement staring directly at the fact of the respondents, they are audacious to go for another outsourcing agency to entrust the services through them to whittle down the very purpose of this writ petition and also the law laid down by the Hon'ble High Court.
11. The counsel for the Petitioner as material documents brings on record Office Order No.4/TA /Admn/A1/2006, dt.
03.01.2006 a bare perusal of the same indicates the Director, Telugu Academy, Himayathnagar, considered the note submitted for increase of daily wages to the employees who are working on daily wages in the Academy as on 03.01.2006 and accordingly passed orders for payment of increased daily WP_26584_2019 12 SN,J wages to the employees. Representation of the petitioners dt. 26.03.2019 for release of increased wages to the daily wage employees working in the Telugu Academy, the signatures of the Petitioners and due acknowledgement by the Office of the Respondent herein is also borne on record. Representation of the Petitioner dt. 17.06.2019 addressed to the Respondent herein in particular refers to the orders of the District Collector, vide Proc.No.B/512/2013, dt. 27.12.2018 seeking implementation of Labour Act Limits, ESI, EPF, etc. A bare perusal of the other material documents on record indicates the names of the Hamalis i.e., the Petitioners and their place of work and also the period of work.
DISCUSSION & CONCLUSION :
12. As per the A.P. Reorganization Act, 2014 the distribution of Assets & Liabilities, the Staff working in the Government and the Staff working in the instrumentalities is on the basis of population ratio of 58.32 : 41.68. The Telugu Academy one of the State instrumentality is enlisted in Schedule-X at Sl.No.51. As per the mandate of AP Reorganization Act the WP_26584_2019 13 SN,J continuance of facilities in certain State institutions like the one, the Telugu Academy, Hyderabad is mentioned in Section 75 of the Act. The provisions thereof are extracted as under :
"75. Continuance of facilities in certain State Institutions :
(1) The Government of the State of Andhra Pradesh or the State of Telangana, as the case may be, shall, in respect of the institutions specified in the Tenth Schedule to this Act, located in that State, continue to provide facilities to the people of the other State which shall not, in any respect, be less favourable to such people than what were being provided to them before the appointed day, for such period and upon such terms and conditions as may be agreed upon between the two State Governments within a period of one year from the appointed day or, if no agreement is reached within the said period, as may be fixed by order of the Central Government.
(2) The Central Government may, at any time within one year from the appointed day, by notification in the Official Gazette, specify in the Tenth Schedule referred to in subsection (1) any other institution existing on the appointed day in the States of Andhra Pradesh and Telangana and on the issue of such notification, such Schedule shall be deemed to be amended by the inclusion of the said institution therein".
13. In the counter affidavit filed in I.A. No.3/2022 it is stated that the Respondent herein ie., the Telugu Academy was bifurcated on 26.04.2022 and funds as well as employees were distributed among Telangana and Andhra Telugu Academies.
WP_26584_2019
14 SN,J
14. In the judgement of the Apex Court in Nihal Singh and others v. State of Punjab reported in (2013) 14 SCC 65, the Supreme Court considered the case of 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, it held that the appellants before them were not arbitrarily chosen, their WP_26584_2019 15 SN,J 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 was held that the judgment in Umadevi 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 obligation to function in accordance with the Constitution.
11. The Apex Court in a judgment reported in (2017) 1 Supreme Court Cases 148, in State of Punjab and others vs Jagjit Singh and others at Paras 54 (1)(2)(3) of the said judgment observed as under:
"54 "The Full Bench of the High Court, while adjudicating upon the above controversy had concluded, that temporary employees were not entitled to the minimum of the regular pay-scale, merely for the reason, that the activities carried on by daily-wagers and regular employees were similar. The full bench however, made two exceptions. Temporary employees, who fell in either of the two exceptions, WP_26584_2019 16 SN,J were held entitled to wages at the minimum of the pay-scale drawn by regular employees. The exceptions recorded by the full bench of the High Court in the impugned judgment are extracted hereunder:-
"(1) A daily wager, ad hoc or contractual appointee against the regular sanctioned posts, if appointed after undergoing a selection process based upon fairness and equality of opportunity to all other eligible candidates, shall be entitled to minimum of the regular pay scale from the date of engagement.
(2) But if daily wagers, ad hoc or contractual appointees are not appointed against regular sanctioned posts and their services are availed continuously, with notional breaks, by the State Government or its instrumentalities for a sufficient long period i.e. for 10 years, such daily wagers, ad hoc or contractual appointees shall be entitled to minimum of the regular pay scale without any allowances on the assumption that work of perennial nature is available and having worked for such long period of time, an equitable right is created in such category of persons. Their claim for regularization, if any, may have to be considered separately in terms of legally permissible scheme.
(3) In the event, a claim is made for minimum pay scale after more than three years and two months of completion of 10 years of continuous working, a daily wager, ad hoc or contractual employee shall be entitled to arrears for a period of three years and two months."
12. In State of Karnataka v. Uma Devi reported in 2006 (4) SCC 1 the Supreme Court has held as under:
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 WP_26584_2019 17 SN,J 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 is also 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 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 i.e., 10.04.2006.
WP_26584_2019
18 SN,J
13. The Supreme Court in a judgment in Hussain Bhai v. Alath Factory Thezhilali Union reported in (1978) 4 SCC 257 observed as follows :
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 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 WP_26584_2019 19 SN,J 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.
The true test may with brevity, be indicated once again. Where a worker or group qf 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 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 condition and the like may be restored 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 mischief of legal appearances.
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."
14. In a similar identical factual situation workers employed through out sourcing by GHMC approached this Court by filing WP_26584_2019 20 SN,J WP No.47675/2018. In G.Srinivasa Chary, Petitioner v. State of Telangana in IA No.1/2019 in WP No.47675/2018 vide its order dated 07.08.2020 was pleased to observe as follows :
" 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 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 WP_26584_2019 21 SN,J 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 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.
15. This Court opines that where a worker is engaged through a contractor or through agencies, they, after deducting their commission, pay the wages to the workers and probably with a fond hope that their services would be regularized subsequently, they work as contract workers or through agencies. 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 Article 21 of the Constitution of India to those workers/ employees like the petitioners.
16. The creation of a cadre or sanctioning of posts for a cadre is a matter exclusively within the authority of the State and the Respondent herein i.e. Telugu Academy but if they did not choose to create a cadre or fill up the available vacancies in accordance with the WP_26584_2019 22 SN,J applicable procedure /Rules, but chose to make appointments of persons creating contractual relationship, their action would be arbitrary.
17. Thus the respondent authority cannot avoid recruitment to the posts in question, engage persons like the petitioners through intermediaries/ contractors through the system of "outsourcing", pay them paltry wages, and deny them regularisation of services saying the decision in Uma Devi entitles them to deny relief of regularisation. Engagement of the persons like the petitioners through outsourcing agencies/ intermediaries violates the law laid down in Uma Devi's case.
18. This Court opines that the engagement of the persons like the petitioners through outsourcing agencies/ intermediaries for more than 15 years after the decision in Uma Devi, without undertaking any exercise to identify regularly the vacancies in the above posts in the Respondent Academy i.e., Telugu Academy, Himayathnagar, and fill them up as per the applicable rules by properly qualified personnel, and engaging WP_26584_2019 23 SN,J persons of "outsourcing" basis through intermediaries/contractors, is in violation of the law laid down in Uma Devi's case by the respondents and it also violates Articles 14, 16 and 21 of the Constitution of India.
19. The mandate in Uma Devi 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 and the observations in para 54(2) of the Judgement of the Apex Court in State of Punjab and Others v. Jagjit Singh still hold good.
20. This Court is of firm opinion that 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 which permits one time exercise of regularisation to be done for persons employed on WP_26584_2019 24 SN,J temporary basis/daily wages etc. who have rendered continuous service for more than ten (10) years.
21. Taking into consideration the contention of the Respondent that the Respondent organization has been bifurcated on 26.04.2022, 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 in the posts whose work they are discharging now, by ignoring the existence of the intermediaries/ agencies/contractors in the said posts of Hamalis divided into 3 categories namely skilled, semi-skilled and un-skilled in the light of the judgments of the Apex Court referred to and discussed above and which were followed in subsequent cases by this Court within two (2) months from the date of receipt of a copy of the order and pass appropriate orders in accordance to law and communicate the decision to the Petitioners.
22. Accordingly, the writ petition is allowed. However, there shall be no order as to costs.
WP_26584_2019
25 SN,J
Miscellaneous petitions, if any, pending shall stand closed.
_________________ SUREPALLI NANDA, J Date: 15.11.2022 Note: L.R. copy to be marked b/o kvrm