K.Vittal, vs The Sangareddy Municipality,
2021 Latest Caselaw 1328 Tel

             HIGH COURT FOR THE STATE OF TELANGANA

             THE HON'BLE THE CHIEF JUSTICE HIMA KOHLI
                                 AND
             THE HON'BLE SRI JUSTICE B. VIJAYSEN REDDY

                     WRIT APPEAL No.1214 of 2018


                              Date:     .04.2021
BETWEEN

K. Vittal.


                                                     ... APPELLANT
AND


The Sangareddy Municipality,
Rep. by its Commissioner,
Sangareddy,
Sangareddy District and three others.

                                                   ...RESPONDENTS

Counsel for the Appellant       : Mr. S. Jagdish

Counsel for the Respondents     : GP for Services - III
                                  Mr. T. Chandrasekhar Rao


The Court made the following:

JUDGMENT: (Per Hon'ble Sri Justice B. Vijaysen Reddy)

Aggrieved by the order dated 02.08.2018, passed by a learned

Single Judge in WP.No.3858 of 2017, whereby the writ petition filed by

the appellant/petitioner has been dismissed, he has approached this

Court by filing the present appeal.

2. The issue that arises in this appeal is whether the

appellant/petitioner has been appointed by the respondent No.1 -

municipality on contract basis or on outsourcing basis.

3. The parties are hereinafter referred to as they were arrayed

before the learned Single Judge.

4. The relief sought for in the writ petition is as under:

"... the High Court may be pleased to issue a Writ, Order or direction more in the nature of Writ of Mandamus direct the respondents to consider the case of the petitioner for regularization of his services as Health Assistant (BDR) as per G.O.Ms.No.16 dated 26.02.2016 and pass such other or further orders as this Hon'ble Court may deem fit and proper in the circumstances of the case."

5. The factual backdrop of the case is that in the year 1993

one post of Health Assistant (BDR) fell vacant. The respondent

No.1/Commissioner, Sangareddy Municipality is the controlling officer.

As per the Resolution No.15 of the Panel Committee dated

13.12.2004, the petitioner was appointed as a Health Assistant (BDR),

allegedly, on contract basis with effect from 15.12.2004, for a period

of three years. Under proceedings dated 30.10.2007, issued by the

respondent No.1, the appointment of the petitioner was extended for a

further period of three years with effect from 01.11.2007; for another

period of three years vide proceedings of the respondent No.1 dated

31.10.2010 and further extended with effect from 01.11.2014, in view

of the exigencies of work, as the said post had fallen vacant for a long

time. The salary of the petitioner was fixed at Rs.6,000/- per month

from the year 2007 and the same was enhanced to Rs.7,600/-.

6. It is the case of the petitioner that vide Roc.No.3056 dated

24.03.2008, the respondent No.1 had requested the respondent

No.2/Commisisoner and Director of Municipal Administration, to accord

permission to appoint him in the existing vacancy in terms of the

Council Resolution No.415 dated 28.02.2008. Since no orders were

passed by the respondent No.2, vide letter dated 30.08.2010, the

respondent No.1 requested the respondent No.2 to bring to the notice

of the respondent No.3/Prinicpal Secretary, Municipal Administration

and Urban Development Department, State of Telangana, to consider

the case of the petitioner. The said proposal was kept pending before

the respondent No.2. While so, the Government issued G.O.Ms.No.16

dated 26.02.2016, amending Section 10 of Act 2 of 1994 adding

Regularization of Services of persons appointed on contract basis

under Section 10-A of Act 2 of 1994. Two conditions were stipulated

under Section 10-A for regularization of a contract employee.

Firstly, that the availability of the post in the relevant category in the

respective department shall be the prerequisite condition for

considering regularization and secondly that regularization may be

considered in respect of the person appointed on a full time

contractual basis, on a monthly remuneration. Further, regularization

was to be considered only in respect of eligible personnel working as

on 02.06.2014 i.e., immediately before formation of the Telangana

State and the said contractual employee ought to have continued

working till the date of the proposed regularization.

7. The petitioner claimed that he was eligible and qualified for

appointment to the post of Health Assistant since he was appointed on

a contract basis with a monthly salary in a vacancy that had arisen in

the year 1993 under the control of the respondent No.1. The petitioner

further stated that he had worked as Sanitary Inspector on incharge

basis and fulfilled the conditions prescribed under G.O.Ms.No.16 dated

26.02.2016 for regularization of his services. He contended that the

law laid down in STATE OF PUNJAB v. JAGJIT SINGH1 applies to all

temporary employees including daily wage employees, ad hoc

employees, employees appointed on casual basis, contractual

employees etc. so as to vest in them the right to claim wages, at par

with the minimum of the pay scale of regularly engaged government

employees.

8. The respondent Nos.1 and 2 filed separate counter affidavits

opposing the petitioner. Respondent No.1 stated that the petitioner

has been working in Sangareddy Municipality as an outsourcing

sanitary mestry for six years. Thereafter, he was selected to look after

BDR (Health Assistant) work on outsourcing basis. Remuneration was

paid to him through the outsourcing agency. Remuneration was

enhanced to the outsourcing workers as per G.O.Ms.No.14 dated

10.02.2016 and payment of revised/enhanced remuneration was done

by the agencies to the individuals employed by them. The petitioner

had worked in the respondent/municipality purely on an outsourcing

basis. He is not entitled for payment of minimum of the time scale of

pay, attached to the post of a Health Assistant.

9. Respondent No.1 further stated that the then Municipal

Commissioner, vide letter dated 17.02.2011, had requested the

2016 Law Suit (SC) 1057

District Medical and Municipal Health Officer, Medak District at

Sangareddy, to sponsor qualified candidates for the post of Health

Assistant, Birth & Deaths Register (BDR) on a contract basis.

Vide letter dated 17.02.2012, the District Medical and Municipal Health

Officer had forwarded applications of five qualified persons and the

name of the petitioner features in that list. The matter was placed

before the Council/Special Officer for selection of an eligible and

experienced candidate from out of the five candidates on a monthly

remuneration of Rs.8,400/- per month, as per G.O.Ms.No.3 Finance

Department (SMPC-II) dated 12.01.2011. The Special Officer enquired

about the permission from the Government to take up the recruitment

process against the existing vacancy. In reply to the Special Officer's

query, the then Commissioner of Sangareddy Municipality had stated

that "there is ban on Direct recruitments and the Council is at liberty

to engage a person with qualified candidate on outsourcing till a

regular candidate comes". It was further stated by the respondent

No.1 that vide proceedings dated 17.03.2017 of the Regional Director-

cum-Appellate Commissioner of Municipal Administration, the regular

candidate was selected and posted as a Health Assistant in

Sangareddy Municipality and now there is no vacancy in the said post.

10. It was further stated by the respondent No.1 that neither

G.O.Ms.No.16 dated 26.02.2016 nor the law laid by the Supreme

Court in JAGJIT SINGH's case (1 supra) is applicable to the petitioner

since he has been working on a outsourcing basis with effect from

02.06.2014, to look after BDR work. One Sri A. Vijaya Babu was

posted as a Health Assistant in Sangareddy Municipality vide

proceedings dated 17.03.2017 and the said individual had joined duty

on 24.03.2017.

11. In the counter filed by the respondent No.2 it has been stated

that the respondent No.1 had appointed the petitioner on a contractual

basis vide proceedings dated 16.12.2004 and his term was extended

till 31.10.2010. Later, under proceedings No.C1/567/2012 dated

23.06.2012, the respondent No.1 had engaged the services of the

petitioner on an outsourcing basis.

12. In his rejoinder to the counter affidavit filed by the respondent

No.2, the petitioner had denied having been engaged on a outsourcing

basis by the respondent No.1 vide proceedings dated 23.06.2012;

he claimed that he had been appointed as a Health Assistant (BDR)

with effect from 15.12.2004 on a contract basis; his contract period

had been extended by the respondent No.1 from time to time,

the latest extension being on 30.12.2013. The petitioner asserted that

he was appointed on a regular basis, that too vide Resolution of the

Panel Committee of the Municipality; he was receiving monthly

remuneration and is entitled to a minimum time scale of pay attached

to the post of Health Assistant.

13. By the impugned order, the learned Single Judge had dismissed

the writ petition holding that the petitioner is appointed by the

respondent No.1 on an outsourcing basis and there is no evidence on

record to show that the petitioner was directly engaged by the

respondent No.1 on a contract basis.

14. Learned counsel for the appellant submitted that the petitioner

was appointed on a contract basis and not on an outsourcing basis.

The respondent No.1 had requested the respondent No.2 to accord

permission to appoint the petitioner in the existing vacancy as per the

Council Resolution No.415 dated 28.02.2008 but no orders were

passed by the respondent No.2. The appellant is eligible and qualified

to hold the post of a Health Assistant on a contract basis and he has

been discharging the regular duties. The appellant has worked

continuously under the direct control of the respondent No.1 as a

Health Assistant on a contractual basis from 2004 till date, without any

adverse remark whatsoever.

15. Per contra, it is stated by the counsel for the respondents that

the petitioner was engaged on an outsourcing basis and he is not a

contract employee. G.O.Ms.No.16 dated 26.02.2016 is not applicable

to the petitioner since he is working on an outsourcing basis.

The remuneration was paid to the petitioner by the outsourcing agent.

There is no contractual relationship with the respondent No.1/

municipality.

16. We have heard the arguments advanced by learned counsel for

the parties, perused the impugned judgment and the record.

17. The facts of the case reveal that under proceedings of the

Commissioner dated 23.06.2012, the DM & HO, Medak District at

Sangareddy, who is one of the outsourcing agency under Medical and

Sanitation, had sponsored five eligible candidates having requisite

qualifications for holding the post of BDR (Health Assistant) on an

outsourcing basis, vide letter dated 17.02.2012. Out of the five

candidates allotted, three candidates viz. Sri Balaji S/o. N. Ramulu,

Sri K. Vittal S/o. K. Adivappa and Sri Satyanarayana S/o. Ramulu had

attended the interview and the petitioner was selected for being

engaged on an outsourcing basis as per the Special Officer's order

dated 02.06.2012.

18. In support of his claim that he was entitled to be appointed on a

regular basis, the petitioner has not produced any documents to show

that he had been employed on a contract basis by the respondent No.1

or that he had been receiving the salary directly from the respondent

No.1. On the contrary, the proceedings dated 23.06.2012 of the

respondent No.1/ Commissioner, Sangareddy Municipality clearly show

that the petitioner had been appointed on an outsourcing basis. It is

also borne out from the record that one A. Vijaya Babu was posted as

Health Assistant in the Sangareddy Municipality vide proceedings

dated 17.03.2017.

19. A regular Health Assistant by the name of A. Vijaya Babu was

appointed to the subject post vide proceedings dated 17.03.2018 and

he has been continuing in service. Thus, the petitioner cannot plead

that there is any vacancy in the said post. Insofar as his claim of

employment on a contract basis is concerned, there is no evidence on

record to show that the petitioner had been receiving the salary from

the respondent No.1/municipality. On the contrary, as pointed out

above, the petitioner was appointed on outsourcing basis since the

year 2012 and had been receiving salary as an outsourced employee.

Copy of proceedings No.C1/567/2012 dated 23.06.2012 of the

respondent No.1 were produced before the learned Single Judge along

with the relevant records. Same have been enclosed by the

respondent No.2 along with the counter affidavit filed in this writ

appeal. The said proceedings unequivocally prove that the petitioner

had been engaged as an outsourcing employee on being sponsored by

the DM & HO, Medak District at Sangareddy (outsourcing agency

under Medical and Sanitation). Thus, the claim of the petitioner that he

was appointed on a contract basis, is found to be without any merit.

20. For the aforesaid reasons, this Court does not find any infirmity

in the impugned judgment that warrants any interference. The writ

appeal is devoid of merits and is hereby dismissed along with the

pending miscellaneous petitions, if any with no order as to costs.

_____________ HIMA KOHLI, CJ

__________________ B. VIJAYSEN REDDY, J April 23, 2021 DSK