Madhya Pradesh High Court

Darvari Singh Sareyam vs The State Of Madhya Pradesh on 2 April, 2025

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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SURESH KUMAR KAIT,
CHIEF JUSTICE
&
HON'BLE SHRI JUSTICE VIVEK JAIN

WRIT APPEAL No. 898 of 2024

DARVARI SINGH SAREYAM & OTHERS
Versus
THE STATE OF MADHYA PRADESH & OTHERS

Appearance:
Mr. K.C. Ghildiyal - Senior Advocate with Ms. Warija Ghildiyal - Advocate
for appellants.
Mr. Anubhav Jain - Government Advocate for respondents-State.
Mr. Satyam Agrawal - Advocate for respondents No.3 and 4.

WITH

WRIT APPEAL No. 897 of 2024

DASHARATH SHRIVASTAVA
Versus
THE STATE OF MADHYA PRADESH & OTHERS

WITH

Signature Not Verified
Signed by: SACHIN
CHAUDHARY
Signing time: 02-04-2025
17:43:03
NEUTRAL CITATION NO. 2025:MPHC-JBP:15936

WRIT APPEAL No. 1160 of 2024

NATIONAL HEALTH MISSION MADHYA PRADESH & OTHERS
Versus
DARVARI SINGH SAREYAM & OTHERS

Appearance:
Mr. Satyam Agrawal - Advocate for appellants.
Mr. K.C. Ghildiyal - Senior Advocate with Ms. Warija Ghildiyal - Advocate
for respondents No.7 & 10.
Mr. Anubhav Jain - Government Advocate for respondents No.19 to
22/State.

WRIT APPEAL No. 1266 of 2024

MISSION DIRECTOR NATIONAL HEALTH MISSION MADHYA
PRADESH & OTHERS
Versus
MUKESH AHIRWAR & OTHERS

Appearance:
Mr. Satyam Agrawal - Advocate for appellants.
Mr. Anubhav Jain - Government Advocate for respondents No.5 to 7-State.

WRIT APPEAL No. 1267 of 2024

MISSION DIRECTOR
Versus
GANPAT LAL AHIRAR & OTHERS

Appearance:
Mr. Satyam Agrawal - Advocate for appellants.
Mr. Anubhav Jain - Government Advocate for respondents-State.

WITH

Signature Not Verified
Signed by: SACHIN
CHAUDHARY
Signing time: 02-04-2025
17:43:03
NEUTRAL CITATION NO. 2025:MPHC-JBP:15936

WRIT APPEAL No. 1268 of 2024

MISSION DIRECTOR & OTHERS
Versus
SANGEETA PATERIYA & OTHERS

Appearance:
Mr. Satyam Agrawal - Advocate for appellants.
Mr. Shreyash Pandit - Advocate for respondents No.1, 2 and 3.
Mr. Anubhav Jain - Government Advocate for respondents-State.

WRIT APPEAL No. 1301 of 2024

NATIONAL HEALTH MISSION MADHYA PRADESH & OTHERS
Versus
DASHRATH SHRIVASTAVA & OTHERS

Appearance:
Mr. Satyam Agrawal - Advocate for appellants.
Mr. K.C. Ghildiyal - Senior Advocate with Ms. Warija Ghildiyal - Advocate
for respondent No.1.
Mr. Anubhav Jain - Government Advocate for respondents-State.

Reserved on : 28.02.2025
Pronounced on : 02.04.2025

ORDER

Per: Hon'ble Shri Justice Suresh Kumar Kait, Chief Justice

These intra-court appeals preferred under Section 2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 have been directed against the common order dated 11.01.2024 passed by the learned Single Judge in a batch of five writ petitions relatable to these appeals. For the sake of brevity, parties to these appeals are, hereinafter, referred to as per their nomenclature in the writ petitions.

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2. WA No.898 of 2024 herein has been filed by some of the writ petitioners in WP No.11632 of 2020 whereas WA No.897 of 2024 has been filed by the writ petitioner in WP No.17794 of 2020. They are aggrieved by the part of the impugned order passed the learned Single Judge which allows the respondents/National Health Mission, Madhya Pradesh (hereinafter referred to in short as "the NHM"), to hand over their services to the outsourcing agency and accordingly, a direction has been sought against the NHM to maintain their original service conditions and permit them to work directly under the NHM.

3. Per contra, remaining writ appeals, in hand, have been filed by the respondents/National Health Mission for setting aside of the impugned order passed by the learned Single Judge.

4. Given the commonality of the questions involved, all these appeals have been heard together and are decided by this common order. However, for the sake of convenience, the facts are taken from WA No.898 of 2024 arising from WP No.11632 of 2020.

5. The facts of the case, in nutshell, are that initially National Rural Health Mission (for short as "the NRHM") was created by the Government of India with an aim to augment basic health care services. The NRHM, Bhopal issued a Notification dated 26.12.2012 (Annexure P-1 to the writ petition) that in order to strengthen Medicine Distribution Centres in 778 Health Centres of the State, appointments of Pharmacists, Data Entry Operators and Support Staff (Class-IV) have to be made on contract basis on a fixed honorarium mentioned therein. In this regard, a Contract Human Resource Policy 2013-14 was also issued governing the service conditions of the contract employees amongst other rules. The period of contract was made effective from the date of appointment to the end of the financial year i.e. 31st March and that the maximum contractual period would be valid for one year. If the employee is found eligible in the annual performance based evaluation, the contract agreement could be further extended up to the period approved by the NRHM, Madhya Pradesh. However, the employees would not be entitled to regularization. On 25.10.2013, a recruitment

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notice was issued for appointment of Support Staff through MP Online. Consequently, the writ petitioners and some others were engaged on contract basis after undergoing a selection process. Thereafter, their contract agreements were renewed from time to time.

6. Subsequently, the NRHM was transformed into the National Health Mission (NHM) to provide uninterrupted and equivalent health services to all the States and accordingly, it has been running various programmes at district level SNCU and NRC etc. The NHM, Madhya Pradesh issued an amended Contract Human Resource Manual (Annexure P-7) on 09.02.2017, which was made applicable to all the contractual officers/employees whose payment of honorarium is paid by the NHM.

7. The NHM, Madhya Pradesh also issued an order on 27.07.2017 (Annexure P-8 to the writ petition) addressed to stakeholders of various programmes under the National Health Mission of the State thereby informing them that for the programmes under the NHM for year 2017-18 a lump-sum amount has been provided for continuation of support services mentioned therein. It also issued certain guidelines for continuance of support services inter alia directing that Rogi Kalyan Samiti (Patient Welfare Committee) through its Secretary shall be responsible for the management of support services. That the support services' employees shall be the employees of Rogi Kalyan Samiti (hereinafter referred to as "the RKS") and their necessary agreement in this regard may be executed, to which the NHM will not be a party. After adjusting the employees already working, remaining posts could be filled directly at local level. The NHM will make a lump sum fund available to the RKS for Support Staff at the rate of Rs.5000/- per month per employee deployed for management of support services.

8. The writ petitioners have placed on record the Regulations of Rogi Kalyan Samiti as Annexure P-10 to the writ petition. A perusal of these Regulations shows that the RKS is a society of Government Health Organizations registered under the Madhya Pradesh Society Registration Act, 1973. The RKS is a

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managerial structure, which works as a trustee group for hospital management. It was constituted for the purposes of welfare of patients and continuous increase of facilities in the hospitals and to ensure public participation in all the Government hospitals including District Hospitals and Primary Health Centres. It consists of members from local Panchayati Raj Institutions (PRIs), NGOs, local elected representatives and officials from Government sector who will be responsible for proper functioning and management of the hospital/Community Health Centre/ FRU. Its main source of income is donation given by donors as well as user charges apart from other resources made available to it. However, the funds provided to the RKS for management of Support Staff and other health services are by way of Government grants through NHM. The RKS is only following the Government orders.

9. It is stated that in pursuance to order dated 27.07.2017 (Annexure P-8), on 18.08.2017, the services of the writ petitioners were transferred to the RKS. The order dated 27.07.2017 was assailed by the petitioners by filing a writ petition bearing WP No.12865 of 2017. Separate writ petitions were also filed by the similarly situated employees. On 30.08.2017, while issuing notices to the respondents, it was directed that the service conditions of the petitioners shall not be changed until further orders. However, it will be open to the respondents to take the work from the petitioners wherever it is required in the components specified in the order dated 27.07.2017. Thereafter, alleging disobedience of the interim order dated 30.08.2017 in changing the service conditions of the petitioners by making them employees of the RKS, the petitioners preferred a contempt petition being CONC No.2367 of 2017. Ultimately, on 18.04.2018, the above writ petition was taken up for hearing conjointly with similar other writ petitions, leading case being W.P. No.11905 of 2017 (Nirbhan Singh Yadav vs. State of M.P.) and the same were disposed of in the light of a Coordinate Bench decision dated 22.03.2018 passed in a bunch of writ petitions leading case being W.P. No.5594 of 2017 wherein also the order dated 27.07.2017 issued by the Director, National Health Mission, Bhopal was called in question. The NHM,

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Bhopal was directed to consider the case of petitioners on individual basis for renewal of contract in terms of rules/policy/executive instructions dated 01.04.2015, as per clause 1.3 of H.R. Policy of NHM and said scrutiny of individual cases was directed to be ensured separately on the basis of individual appraisal by passing a reasoned order after according due opportunity of hearing to the petitioners.

10. Thereafter, the Mission Director, NHM issued an order dated 13.08.2019 directing all the Chief Medical and Health officers and other stakeholders in the Sate to forthwith enter into a contract with an outsourcing agency for all the support staff under the districts and in such process, preference be given to the support staff working under the RKS and that the staff so engaged through outsourcing agency shall get wages at the rate applicable to semi-skilled labourers. Thereafter, an outsourcing agency, namely, New Jai Ambe Security Services India Pvt. Ltd. was engaged and then vide order dated 01.07.2020, the agency was directed to commence work in accordance with the number of staff shown in the list of the employees attached therewith. In these circumstances, the writ petitioners herein along with similarly situated employees once again invoked the writ jurisdiction of this Court under Article 226 of the Constitution of India.

11. Initially, by an interim order dated 28.09.2020 while issuing notices to the respondents, the respondents were restrained from changing the service conditions of the petitioners. The writ petitions came up for hearing before the learned Single Judge on 11.01.2024. The argument advanced on behalf of the respondents that the NHM has proceeded on the basis of a policy decision to delegate the subsidiary services to the RKS in rural areas and that said decision has also been taken so that it could concentrate on the core health services, found favour with the learned Single Judge. However, accepting the arguments put- forth on behalf of the petitioners that the change of the employer of the support staff and their engagement through outsourcing agency has been causing them pecuniary loss and hardships as their salary has been reduced by Rs.1000/- per

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month from what they were getting when they were engaged by the NHM, the learned Single Judge held that since the overall control has not been delegated by the NHM in favour of the RKS or the contractor and it is only an administrative arrangement whereby the RKS has been given the task of managing subsidiary services, the case for reduction of wages for doing the same nature of work for the same duration in the hands of a delegatee or a sub-delegatee except for a new set of employees who may be engaged by the RKS or the contractor, is not made out. The writ petitions were disposed of with the following directions:

"1. Petitioners who were engaged by National Health Mission on a certain set of wages for doing a particular set of work, during the continuance of that set of work will be entitled to the same payment of wages or the revised wages, as may be revised by the Collector from time to time for such contractual employees, as was fixed by the National Health Mission.

2. As far as change of the employer is concerned, petitioners will not raise any objection as long as their conditions of service for contract, except for change of the employer, is not altered any further.

3. As far as reduction in wages is concerned, that has since been held to be illegal, petitioners who are engaged through National Health Mission, will be entitled to get the same wages as were contracted by them with National Health Mission and, if any deduction was made, then the residual amount of deduction be paid to the petitioners within a period of 30 days of receipt of certified copy of the order being passed today.

4. Petitioners shall not raise any objection to the change of the employer that being Rogi Kalyan Samiti or a contractor in terms of the aforesaid discussion.

5. As far as decision of a coordinate Bench of this High Court at Gwalior in case of Hariom (supra) is concerned, issue therein was different. There petitioners were claiming regularization and, therefore, discussion was made having regard to the law laid down by Hon'ble Supreme Court in case of State of Karnataka Vs. Uma Devi, (2006) 4 SCC 1. In the present case, petitioners are aware of the fact that they being contractual employees are not entitled to any regularization and that being not a prayer, which is specified by the learned counsels for the petitioners who are appearing herein, facts of that case are different."

12. Learned senior counsel appearing for the appellants/writ petitioners submitted that the learned Single Judge has failed to appreciate that the

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petitioners were initially engaged by the NHM and they have worked as such for more than a decade and their services are still required by them and therefore, handing over the services of the petitioners to the RKS and thereafter directing the RKS for getting the same work done through an outsourcing agency without the consent of the petitioners is per se illegal. It is further contended that the learned Single Judge ought to have appreciated that the order dated 13.08.2019 and consequent order dated 01.07.2020 have been passed in utter violation of the order dated 18.04.2018 passed in the earlier round of litigation inasmuch as neither any scrutiny of service record has been carried out nor has any opportunity of hearing been afforded to the petitioners prior to allocating their services to the RKS and later on, to outsourcing agency. Not only that, despite the interim orders granted by this Court not to effect change in the service conditions, the respondents went on to transfer their services to the RKS and subsequently forced the petitioners to get the same employment through the contractor - outsourcing agency and flouted the interim orders and, therefore, the learned Single Judge has erred in holding that no objection will be raised by the petitioners with regard to change of employer. Learned senior counsel has placed reliance upon the decision of the Supreme Court in the case of Manish Gupta and another vs. President, Jan Bhagidari Samiti and others reported in (2022) 15 SCC 540 wherein it is laid down that one ad hoc employee cannot be replaced by another ad hoc employee. In this regard, reliance has also been placed upon a Division Bench decision of this Court in the case of State of M.P. vs. Puneet Mohan Khare rendered in WA No.418 of 2017 decided on 05.02.2018 wherein it is held that the appellants shall not engage another contractual employee including outsourcing the services of trainers. Lastly, it is contended that even the wages @ Rs.5000/- that are being paid to the petitioners on transfer of their services to the RKS by engaging them to work through outsourcing agency are quite meager and that it is not only half of the wages that the petitioners were getting in the NHM but are even lower than the minimum wages prescribed for un-skilled labourers currently working in the State.

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13. On the other hand, learned counsel appearing for appellants-National Health Mission in the remaining writ appeals i.e. the respondents in writ petitions, impugning the correctness of the impugned order passed by the learned Single Judge has contended that once the policy decision to delegate the subsidiary services to the RKS and for engaging the Support Staff through outsourcing agency has been approved of by the learned Single Judge, then a direction for payment of the same wages as were contracted by the petitioners with National Health Mission, could not have been issued. It is contended that in pursuance to the said decision of delegating the ancillary services of Support Staff such as the petitioners, the employer in National Health Mission is changed to Rogi Kalyan Samiti and only instructions pertaining to working of the Support Staff have been given to the RKS by the NHM. Lump sum budget is also disbursed to the RKS, which is a registered society for management of services of Support Staff. In these circumstances, the NHM cannot be held responsible for payment of wages to Support Staff. It is only the RKS that will decide the issue of wages because the petitioners are now the employees of the RKS and not of the NHM. The petitioners who once used to be contractual Support Staff of the NHM, have now ceased to be their employees. This was already made clear in order dated 27.07.2017 (Annexure P-8). Even otherwise, their contractual appointment was only for a period of one year which was over long back. The petitioners being the contractual employees, if they wish to continue with the RKS, it is their choice and if they do not wish to continue through outsourcing agency then they are free to take decision otherwise. It is further submitted that the RKS was also one of the respondents in the writ petitions but the NHM has been held responsible for payment of wages. If the petitioners even after being engaged by the RKS through outsourcing agency are to be given the same wages that were being paid to them when they were serving in the NHM then this would create discrimination between the petitioners i.e. the then contractual Support Staff engaged with the NHM and now working with the RKS through

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outsourcing agency and the new set of contractual employees to be engaged by the RKS through outsourcing agency.

14. Learned counsel for the appellants/National Health Mission has further argued that a similar issue, of transfer of services of a contractual employee - a Support Staff from the NRHM to the RKS and engagement through outsourcing agency by the order dated 13.08.2019 of the NHM, arose for consideration before Gwalior Bench of this Court in the case of Hariom and others vs. State of M.P. in W.P. No.11482 of 2020 wherein by an order dated 20.08.2020, the Court while dismissing the writ petition came to hold that merely because petitioners are given appointment on contract basis for a period of one year and it is renewed either by written or verbal order, does not make them entitled to continue in the same capacity till they attain the age of superannuation because there is a bar as per Section 11(1) of the M.P. Contractual Appointment of Civil Post Rules, 2017 that such contractual appointment is only for a maximum term of five years and therefore, it was held that a decision to outsource the employment of Support Staff does not amount to change of service conditions. Learned counsel argued that merely because the nature of work remains the same, it does not automatically entitles the writ petitioners to claim wages at the same rate especially when the administrative control has been shifted to the RKS under the policy decision taken by the NHM. The RKS is an independent agency with its own financial constraints. It is contended that even the writ petitioners have already accepted employment under the RKS and they are working as such under the RKS and therefore, in these circumstances, they cannot seek to enforce their previous wages against the NHM especially when it is a settled law that continuous work of contractual employees does not create any vested right in them to continue on the post or even to claim wages at the same rate if the conditions of their employment are altered due to administrative or organizational changes unless there exists any statutory mandate or service rule protecting such rights. In this regard, reliance has also been placed upon a decision of Indore Bench of this Court in the case of Amar Singh Bhuriya and

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others vs. Public Health and Family Welfare Department and others rendered in W.P. No.5594 of 2017 and other connected cases decided on 22.03.2018 wherein same issue was involved. It is further argued that in absence of any constitutional or statutory right, the writ petitioners cannot be held to be entitled either to continue to work with the NHM or to be paid wages while they are made to work through outsourcing agency at the same rates as were being paid to them earlier.

15. Having heard learned counsel for the parties and perusing the record, we find inter alia that no case for interference in these appeals is made out.

16. First contention of the learned senior counsel appearing for the writ petitioners is that the services of the writ petitioners are still required by the NHM and therefore, neither the services of the petitioners could have been handed over to the RKS nor a direction could have been issued to the RKS to engage them through outsourcing agency. In this regard, it is seen that when the petitioners were engaged either by the NRHM or by the NHM, their services were governed by the Contract Human Resourced Policy 2013-14 (Annexure P-3 to the writ petition), which was later on amended vide Annexure P-7 wherein the period of contract and rules governing the contract appointment of the Support Staff are provided. The amended Manual was made applicable to all the contractual officers/employees whose payment of honorarium is paid by NHM, Madhya Pradesh. According to the same, if the employee is found eligible in the annual performance based evaluation, the contract agreement could be further extended up to the period approved by the Mission. However, the employees would not be entitled to regularization. It further provides that if need be, the Mission Director shall reserve the right to change their nomenclature and utilize/adjust their services as per their qualification in other programmes. Clause 8 of the amended Manual also provides for rationalization/administrative transfer. Similarly, one of the conditions contained in the orders of appointment of the petitioners i.e. Clause 9 (Annexure P-4 to the writ petition) provides that no change will be permitted in the place of posting but if the appointing authority

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desires then it can direct the employee to discharge any additional work at any different place than his place of posting. Thus, in view of the aforesaid provisions, it cannot be said that it was not open to the NHM to hand over the services of the petitioners to the RKS. So far as the engagement of the petitioners through outsourcing agency is concerned, it is seen that the petitioners were only working on contract basis. When the contract period is over, the employer is not duty bound to continue the contract unless the terms and conditions of the contract specifically make any provision for continuation of the employee in service based on suitability and performance of the contractual employee and there is availability of the work. Where a person is to be appointed on contractual basis, the recruitment through outsourcing is not prohibited. In fact, outsourcing of employees is a matter of policy and it cannot be held to be unconstitutional as long as the contractual rights of such outsourced staff are protected. The respondent-NHM was within their rights to deploy the writ petitioners to the RKS and also to engage the Support Staff through outsourcing agency but that also entails corresponding duty to ensure that contractual rights of such outsourced staff engaged by them for the said purpose are protected. Under these circumstances, we do not find any force in the contention raised by the learned senior counsel for the petitioners that engagement of the petitioners through outsourcing is illegal and that consent of the petitioners was required to be taken before engaging them through outsourcing. Therefore, no direction as such could be issued to the NHM to maintain the original service conditions of the petitioners and further to permit them to work directly under the NHM. Having held thus, we do not find that the learned Single Judge has committed any error in holding that no objection will be raised by the petitioners with regard to change of employer.

17. The second contention of the learned senior counsel is that the impugned orders dated 13.08.2019 and 01.07.2020 were passed in utter violation of the interim orders passed by this Court in earlier round of litigation as the service conditions of the writ petitioners have been changed by making them employees

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of outsourcing agency and no opportunity of hearing has been afforded. The said contention also cannot be accepted in view of the fact that it is not the case of the writ petitioners that they have been replaced by outsourced employees. Rather the petitioners have been continued to work and even on their redeployment with the RKS through outsourcing agency, it has been directed to give them preference in the matter of employment. The change of service conditions would depend upon the terms and conditions of the contract and its breach etc. Even otherwise, by the interim order dated 30.08.2017, non-compliance of which is being alleged, it was directed that service conditions of petitioners shall not be changed but it was left open to the respondents to take the work from the petitioners wherever it is required in the components specified in the order dated 27.07.2017. Thus, we are of the considered view that there is no change of service conditions by the NHM while allocating the services of the Support Staff to the RKS or to engage them through outsourcing agency.

18. Relying upon the decision of the Supreme Court in Manish Gupta's case (supra) it is argued by the learned senior counsel that a contractual employee cannot be replaced by another set of contractual employee, therefore, outsourcing of the employees for the same work which the petitioners are performing is illegal. Indeed, there is no dispute with regard to the said proposition. The law is also well settled with regard to contractual employees that they have no vested right to continue on the post and their rights are exclusively governed by the terms and conditions of the contract but if the employer is in need of the services which the contractual employee was performing and wants to engage another contractual employee against the same post held by the contractual employee, the person who is and/or was already working prior to his discontinuation by the employer, shall have to be considered first for such appointment. However, this is not a case where the petitioners have been replaced by another set of contractual employees. Even on handing over of their services to the RKS for engaging them through outsourcing agency they have been continued in services. So far as the ratio laid down by a Division Bench of this Court in Puneet Mohan

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Khare's case (supra) on which reliance is placed by the learned senior counsel is concerned, in the facts of the said case, the engagement of Trainers through outsourcing the services was found to be another way of engaging Trainers on contract basis. Therefore, it was directed that appellants therein shall not engage another contractual employee including outsourcing the services of Trainers. In the present case, it is not the case of the petitioners that their services have been dispensed with. Rather, by order dated 13.08.2019 (Annexure P-14 to the writ petition) they have been directed to be given preference on their engagement through outsourcing agency and in fact, have been continued in services. Thus, the decision in Puneet Mohan Khare's case (supra) is distinguishable on facts and hence, the same is not applicable to the facts of the present case.

19. One of the contentions raised by learned counsel for the appellants-NHM is that after delegating the services of the writ petitioners to the RKS, the NHM ceases to be the employer for the petitioners and therefore, the finding of the learned Single Judge that the NHM is still having control over the RKS is perverse. In this regard, it is noted that even after allocating the services of the writ petitioners to the RKS by order dated 27.07.2017, the Mission Director, NHM by order dated 13.08.2019 directed the stakeholders to engage an outsourcing agency for taking the services of Support Staff and give preference to Support Staff working under the RKS and pay wages prevalent for unskilled labourers. Learned counsel for the appellants/NHM has failed to point out that if the NHM while issuing the order dated 27.07.2017 had given control of the Support Staff to the RKS and health services being carried out through the RKS then as to how the NHM by order dated 13.08.2019 could still interfere in the affairs of the RKS and direct them to take the services of Support Staff through outsourcing agency. It clearly goes to show that even if the services of Support Staff have been allocated to the RKS and their management also has been entrusted to the RKS, still the NHM has not totally given up total control of the RKS and the health services being carried out by it. The view as such is further fortified by Clause 2.19 of the amended Manual of the NHM, which specifically

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provides that the contract employees would be under the administrative control of the Authority prescribed by the NHM, Madhya Pradesh. As per Clause 3 and 4 of the amended Manual, the contract employees would be entitled to revised honorarium as per the directions of the NHM and officers have also been prescribed to assess and evaluate their performance for further continuation in the services. It is not the case of the National Health Mission that only the Support Staff in writ petitioners alone have been directed to be treated separately in any other way and if yes then in what manner. We could not gather the same as there is also nothing on record to show as to what are the terms and conditions and rules governing the service conditions of the Support Staff engaged by the RKS through outsourcing agency. Yet another fact supporting the view is that the NHM is still controlling the services of the petitioners. Admittedly, the contention of the learned counsel for the NHM is that the employer in the NHM has been changed to the RKS and only instructions pertaining to working of the Support Staff have been given to the RKS. Issuing instructions pertaining to working also shows that the NHM has not given up total control over support services and the RKS to carry out health services in the State. In this case, the management of Support Staff would have been done by the RKS or the outsourcing agency but the matters with regard to payment of honorarium to the Support Staff and instructions as to how to take their services are still being dealt with by the NHM. In these circumstances, there is nothing on record to take a different view than the one taken by the learned Single Judge holding that overall control of the National Health Mission has not been delegated in favour of the RKS or the contractor. By orders dated 27.07.2017 and 31.08.2019 impugned in the writ petitions only redeployment and placement of the Support Staff working under the NHM has been done and it is only an administrative arrangement whereby the RKS has been given task of managing subsidiary services.

20. On coming to the last contention raised by the learned senior counsel for the petitioners that by allocating the services of the petitioners to the RKS by order dated 27.07.2017 their wages have been reduced and there is violation of

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interim orders passed by this Court in earlier round of litigation. In this regard, it is seen that usually an outsourced employee is an employee of the third party and their salary and other benefits would depend upon the terms of contract with that party and no writ lies against a private party but if the institution where the outsourced employee is deployed is having direct control over them in terms of their appointment, salary and other terms and conditions and that institution receives government aid and is engaged in public duties and the contract is associated with public services like water supply, waste management, public transport, education, energy, public safety services, and emergency services like healthcare, and other public services alike, then a mandamus can be issued for the wages which are not paid. It has already been observed above that the NHM has control over the RKS as from time to time instructions and guidelines as contained in orders dated 27.07.2017 and 13.08.2019 have been issued to the RKS with regard to appointment of Support Staff and emoluments to be paid to them from the funds sanctioned and provided by the NHM. It is not the case of the NHM that the petitioners are discharging the work other than what they were doing while deployed in the programmes under the NHM. Therefore, even though there is no perversity or illegality in the direction to deploy Support Staff at the RKS and then to take the same work through outsourcing agency but the direction to pay lesser wages to the petitioners than what they were getting in the programmes under the NHM cannot be said to be justified. Moreover, in the earlier round of litigation before this Court, by passing interim orders it was directed not to change the service conditions of the petitioners. The contract period of the petitioners as per the Manuals of the NHM applicable to the contractual officers/employees comes to an end on 31st March and thereafter, it is continued either orally or by written orders. However, no agreements between the petitioners and the NHM or the RKS have been placed on record. The order dated 27.07.2017 appears to have been passed midway through the contract period. The petitioners were directed to be sent to the RKS. They challenged the said order before this Court and while issuing notices, by order dated 30.08.2017,

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the NHM was directed not to change the service conditions. It may be noted that by the order dated 22.03.2018 passed in W.P. No.5594 of 2017 (supra) and order dated 18.04.2018 passed in W.P. No.11905 of 2017 (supra) while deciding both the petitions along with connected cases, interim order was merged in the final order and no interference was made in the order dated 27.07.2017 issued by the Director, NHM, Bhopal but a direction was issued that they will continue to enjoy the service benefits which they were enjoying at the time of issuance of impugned order dated 27.07.2017. There is nothing on record that the NHM or for that matter the RKS has ever discontinued the services of the writ petitioners and put the petitioners to disadvantage in this regard but the service benefits in the form of payment of honorarium to the petitioners which they were enjoying at the time of issuance of impugned order dated 27.07.2017 have not been maintained. So far as consideration of case of the petitioners for renewal of contract in terms of rules/policy/executive instructions issued on 1.4.2015 as per clause 1.3 of H.R. Policy of National Health Mission is concerned, it cannot be said there is any violation of the same as indubitably the contracts of the petitioners have been continued. In these circumstances, although the deployment of the petitioners to the RKS or their engagement through outsourcing agency cannot be said to be illegal as the terms and conditions of the contract between the parties does provide for the same but the honorarium or the wages payable to the petitioners could not have been reduced.

21. Once it is clear that the NHM while allocating the services of Support Staff, who were earlier deployed in various programmes being carried out by it, to the RKS has only handed over the management of services of Support Staff to the RKS and even the honorarium of the Support Staff is still being paid from the funds allocated by the NHM and the writ petitioners are discharging the same work which they were doing while working as Support Staff in the NHM then while issuing the order dated 27.07.2017, it was not justifiable for the NHM to direct for payment of honorarium to the writ petitioners at the reduced rate. It is not the case where neither any fund is being provided by the NHM to the RKS

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for payment of wages of the Support Staff nor is there any direction by the NHM to pay wages to the Support Staff at any particular rate and it is totally left to the discretion of the RKS alone to fix the wages of the Support Staff. As observed hereinabove, the RKS also has some other financial resources for management of health services and that is why it appears that only certain lump sum fund has been allocated by the NHK to the RKS to meet the honorarium to be paid to Support Staff.

22. Now the situation boils down to order dated 13.08.2019 issued by the NHM, Bhopal by which direction has been issued by the NHM to the RKS to engage the Support Staff through outsourcing agency. This order along with order dated 27.07.2017 was under challenge before the learned Single Judge. In the same order dated 13.08.2019 it was further directed to give preference to the Support Staff deployed with the RKS and make payment of wages prevalent for the unskilled labourers. The order by the NHM to pay wages to the Support Staff on their engagement through outsourcing agency at the rate prevalent for unskilled labourers, in a way, has taken care of earlier deficiency in payment of wages to the Support Staff which had crept in order dated 27.07.2017 but even this order/direction does not appear to have been given effect to. The order dated 13.08.2019 has been implemented so far as the engagement of Support Staff through outsourcing is concerned but payment to be made to them at the rates prevalent for unskilled labourers has not seen the light of the day. With the issuance of order dated 13.08.2019, we do not find that the NHM is not responsible for payment of wages to Support Staff when admittedly it has issued directions for payment of wages to Support Staff at the rates prevalent for unskilled labourers. One of the contentions advanced by learned counsel for the NHM is that the order dated 13.08.2019 was also assailed by some of the Support Staff before Gwalior Bench of this Court in Hariom's case (supra) and the writ petition had come to be dismissed by holding that no right is vested in the petitioners to continue to work on contractual basis or for regularization. We have gone through the said judgment as well. The question of reduction of wages

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was not raised before the learned Single Judge in the said judgment. The only issue raised therein by the petitioners was with regard to not renewing the contractual employment and employing the support staff through outsourcing agency. Thus, the decision in Hariom's case (supra) is of no help to the appellants.

23. Keeping in view of the order dated 13.08.2019, we do not find any force in the submission of the learned counsel for the NHM that payment of wages to the petitioners at the same rate payable at the time when they were engaged in NHM would create discrimination between them and support staff to be engaged through outsourcing agency. The order dated 13.08.2019, in fact, directs that wages prevalent for unskilled labourers would be payable to the Support Staff engaged through outsourcing agency. The said order, so far as payment of wages is concerned, does not appear to have been completely given effect to as the petitioners are still having a grievance with regard to reduction of honorarium being paid to them. If the order as such is fully implemented, we do not think that even the ground of discrimination in wages payable to the petitioners and the support staff to be engaged through outsourcing agency, would be available to the appellants-NHM.

24. In view of the aforesaid discussion, after considering the controversy involved in all these appeals, we do not find any illegality or perversity in the order passed by the learned writ court. Accordingly, the present appeals filed by the appellants-writ petitioners are dismissed. The appeals filed by the appellants/respondents-NHM also fail and are hereby dismissed and they are directed to comply with the order passed by the learned writ court within a period of four weeks from today. No order as to costs.

(SURESH KUMAR KAIT) (VIVEK JAIN) CHIEF JUSTICE JUDGE S/