Telangana High Court
Mr.L Sandeep Kumar Jadhav vs The State Of Telangana And 2 Others on 9 July, 2024
THE HONOURABLE SMT JUSTICE T.MADHAVI DEVI
W.P.NO. 13106 of 2020
ORDER:
In this writ petition, the petitioner is seeking a Writ of Mandamus to declare the impugned order dated 25.02.2020 passed by the respondent No.2 holding that it is not feasible to pay salary under 300 OCS budget to the petitioner as illegal, arbitrary and against the principles of natural justice and consequently to set aside the same and further to direct the respondents to restore the order dated 07.07.2008 appointing the petitioner as Physical Director under 300 OCS budget, thereby paying the salary accordingly and to pass such other order or orders in the interest of justice.
2. Brief facts of the case are that on 30.12.2006, the petitioner was appointed as Physical Director by respondent No.3, on contract basis for a period of one year through an out sourcing agency by name M/s.Deepthi Social Organization and worked upto June, 2007. Vide G.O.Rt.No.86 HM & FW Department, dated 24.01.2007 the Government issued notification to undertake fresh appointments of Physical Director and accordingly, the petitioner's services were 2 TMD,J W.P.No.13106 of 2020 terminated and one Rajender Raj was appointed as a Physical Director on contract basis for one year and on completion of one year, his services were terminated on 19.05.2008. The petitioner was re-engaged on contract basis for a period of 11 months on payment of Rs.6,000/-pm from college development fund. Thereafter, the petitioner services were also terminated after 11 months and the post fell vacant.
3. On 07.07.2008, the petitioner was again appointed as a Physical Director under 300 OCS budget for a contract of five years. The petitioner's appointment was challenged by Sri.Rajender Raj, by filing O.A.No.7915 of 2008 before the Andhra Pradesh Administrative Tribunal, Hyderabad, seeking continuation of his services on contract basis. Initially, the Tribunal had granted the interim direction to appoint Sri.Rajender Raj vide orders dated 25.09.2008 and accordingly, Sri.Rajender Raj was appointed and the petitioner services were terminated on 04.10.2008. Thereafter, on 06.10.2008 the petitioner was appointed as a Physical Director through an out sourcing agency i.e., third party on contract basis for a period of six months on payment of Rs.6,000/-pm., from college development fund. In the meantime, Sri.Rajender Raj filed 3 TMD,J W.P.No.13106 of 2020 O.A.No.6905/2009 for further extension of his services, but the said O.A., was dismissed on 04.06.2010 as Sri.Rajender Raj was selected as a Government teacher. The petitioner thereafter, made a representation on 29.06.2010 to appoint him to the post of Physical Director under 300 OCS budget. There was several correspondence between all the respondent authorities to consider the case of the petitioner for the post of Physical Director under 300 OCS budget in the years 2010 to 2013. However, no decision was taken and therefore, petitioner filed O.A.No.2152 of 2014 which was transferred to the High Court and numbered as W.P.(Tr).No.1883 of 2017 and the said writ petition was disposed of with a direction to consider the representation of the petitioner. When the same was not considered, the petitioner filed C.C.No.206 of 2020. It is thereafter that the impugned proceedings dated 25.02.2020 was issued holding that it is not possible to draw salary under 300 OCS budget, as the petitioner services were being used by the Principal, Osmania Medical College under college development fund. Challenging the same, the present writ petition has been filed.
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TMD,J W.P.No.13106 of 2020
4. Learned counsel for the petitioner submits that the case of the petitioner has always been recommended for appointment under OCS budget, but the Government has not taken any action on such recommendation. It is submitted that similarly placed person has been appointed in the Gandhi Medical College and is being paid regular salary and therefore, the petitioner is also eligible for the same on the principle of equal pay for equal work. For this proposition, he placed reliance upon the judgment of the Hon'ble Supreme Court in the case State of Punjab and Others Vs. Jagjith Singh and Others 1. He therefore pleaded that the respondents be directed to consider engaging the petitioner services and paying salary under 300 OCS budget and also for payment of salary by adopting the principle of equal pay for equal work.
5. Learned Government Pleader, however, placed reliance upon the averments made in the counter affidavit and submitted that the petitioner was initially appointed on contract basis, but immediately thereafter, his services were terminated and the petitioner has been engaged only through an out sourcing agency and not directly by the college and therefore, 1 (2017) 1 SCC 148 5 TMD,J W.P.No.13106 of 2020 his services cannot be treated as on contract basis for payment of salary under 300 OCS budget. As regards the contention of the petitioner that he should be paid salary as is being to the Physical Director in Gandhi Medical College, he submitted that the petitioner has not made any such representation and has not pleaded so in the writ petition and therefore, he cannot make such a claim at this stage. It is further submitted that the parity of work between the petitioner and the Physical Director at Gandhi Medical College is not proved and therefore the principle of equal pay for equal work cannot be applied to the petitioner herein. It is submitted that the existing vacancy can only be filled by a regular recruitment process and cannot be filled with the petitioner.
6. Having regard to the rival contentions and the material on record, this Court finds that though the petitioner was initially appointed on a contract basis and was paid the salary under 300 OCS budget, his services were subsequently terminated and he has been re-engaged and continued through an out sourcing agency. Therefore, he does not have the right to claim that he should be paid from the OCS 300 budget only. It is the prerogative of the employer to engage the services of the 6 TMD,J W.P.No.13106 of 2020 petitioner under any of the categories and the petitioner has willingly joined the same and therefore, he cannot claim it as a matter of right to be paid salary under 300 OCS budget only. With regard to the pay on par with the Physical Director in Gandhi Medical College on the principle of equal pay for equal work, since the petitioner has not claimed the same in the writ petition and it has been claimed for the first time before this Court, this Court deems it fit and proper to permit the petitioner to make a fresh representation for the same and the respondents shall consider the same and after comparing as to whether the services of the petitioner are similar to the services being rendered by the Physical Director at Gandhi Medical College, the pay shall be fixed and paid by the respondents to the petitioner.
7. Accordingly, the writ petition is disposed of. There shall be no order as to costs.
8. Miscellaneous petitions, if any, pending in this writ petition, shall stand closed.
____________________________ JUSTICE T.MADHAVI DEVI Date: 09.07.2024 bak