Eshwar Singh vs State Of Telangana
2022 Latest Caselaw 5727 Tel

      THE HONOURABLE SMT. JUSTICE P.MADHAVI DEVI

                    WRIT PETITION No. 173 OF 2022

ORDER:

This Writ Petition has been filed by the petitioners

seeking a 'Writ of Mandamus' to declare the rejection order

dated 03.09.2021 passed by respondent No.2 rejecting the

request of the petitioners for regularization of their services

on par with similarly placed Class-IV employees, as illegal

and arbitrary.

2. It is the case of the petitioners that the services of

similarly placed persons such as the petitioners herein were

regularized vide R.C.No.6/2/DW/92/03 dated 30.08.2003

pursuant to G.O.Ms.No.212 dated 22.04.1994, Finance and

Planning (FW.PC.III) Department, and also in accordance

with the direction of the Apex Court in the case of

Secretary, State of Karnataka and others vs. Umadevi1

and hence their cases also should be considered for

regularization.

3. The brief facts, leading to the filing of the present writ

petition are that the petitioners claim to be working as daily

2006 (4) SCC Page 1 PMD,J W.P.No.173 of 2022

wage employees of respondent No.2-Nizam's Institute of

Medical Sciences (for short 'NIMS'), Hyderabad,

uninterruptedly from December, 1990. It is averred that the

petitioners have been working through a Contractor but

with respondent No.2-NIMS as the principal employer.

4. It is submitted that when the services of the

petitioners were not regularized, they had approached this

Court in W.P.No.19225 of 2020 and this Court had disposed

of the said writ petition directing the petitioners therein to

submit a representation afresh within a period of two weeks

from the date of receipt of a copy of the said order and on

receipt of such a representation, the respondents were

directed to consider the same in terms of the Judgment of

the Apex Court in Umadevi's case (supra) and to pass

appropriate orders thereon in accordance with law, within a

period of eight weeks thereafter.

5. It is averred that the petitioners have made

representations accordingly, and by impugned orders the

respondents have rejected the cases of the petitioners on the PMD,J W.P.No.173 of 2022

ground that the petitioners were not engaged by them and

they are working with a contractor.

6. Learned counsel for the petitioners submitted that

though the petitioners were employed through the

Contractor, respondent No.2 was the principal employer and

the Employee Provident Fund Authorities have recognized

respondent No.2 as the principal employer. He has referred

to Page 7 of the affidavit dated 12.05.1995 to prove the

above contention. He further submitted that in the earlier

writ proceedings, respondents had consented to dispose of

the representations of the petitioners after accepting that

the petitioners were working with the respondent No.2-

institution and the word 'shall' used in the order only

means that positive order of regularization ought to have

been passed in terms of the Judgment of the Hon'ble

Supreme Court in Uma Devi's case (supra). He relied upon

of the Judgment of the Hon'ble Supreme Court in Uma

Devi's case, wherein at Para 53, it is contended that even

contract labourers and daily wage employees are entitled for

regularization in terms of G.O.Ms.No.212 dated 22.04.1994.

PMD,J W.P.No.173 of 2022

He further submitted that the petitioners are in continuous

service of 30 long years and therefore, the posts in which

they are working are to be deemed as sanctioned posts and

the petitioners should be regularized against such regular

vacancies from the date of their eligibility.

7. Learned Standing Counsel for respondents No.2 and 3

however, relied upon the contentions raised in the counter

affidavit that the petitioners were never engaged by the

respondent-institution and that the petitioners are only

employed through a Contractor and contract labourers are

not eligible for regularization in terms of G.O.Ms.No.212

dated 22.04.1994 and also in terms of the Judgment of the

Hon'ble Supreme Court in Uma Devi's case.

8. Learned Government Pleader for respondent Nos.1

and 4 placed reliance upon the Judgment of the Hon'ble

Supreme Court in the case of Harminder Kaur vs. Union

of India2 for the proposition that mere long service

rendered by adhoc employees cannot be a ground for

regularization and regularization cannot be a mode of

(2009) 13 SCC 90 PMD,J W.P.No.173 of 2022

appointment. She also referred to the Judgment of the

Hon'ble Supreme Court in the case of Indian Drugs &

Pharmaceuticals Limited3, wherein the Hon'ble Supreme

Court deprecated the practice of regularization of adhoc

employees as 'back door entry' or 'litigious employment'.

She therefore, prayed for dismissal of the writ petition.

9. Having regard to the rival contentions and the

material on record, this Court finds that admittedly, the

petitioners have been working with the respondent

organization for nearly 30 years. On the earlier occasions,

when the petitioners have approached this Court, this Court

was pleased to direct the respondents to consider the case

of the petitioners for regularization of their services in terms

of the judgment of Hon'ble Supreme Court in the case of

Uma Devi (cited supra). In the case of Uma Devi, the Hon'ble

Supreme Court has directed the Union Government, State

Governments and their instrumentalities to take steps to

regularize, as a onetime measure, the services of such

irregularly appointed, who have worked for ten years or

more in duly sanctioned posts but not under the cover of

2006 (10) SC 216 PMD,J W.P.No.173 of 2022

orders of courts or of tribunals and to further ensure that

regular recruitments are undertaken to fill those vacant

sanctioned posts that are required to be filled up in cases

where temporary employees or daily wagers are now being

employed and that the process must be set in motion within

six months from the date of the order.

10. The Hon'ble Supreme Court has referred to the

regularization of temporary, contractual, casual, daily wager

or adhoc employees appointed/recruited to constitute a

scheme of public employment on issuance of directions of

Court so far. Therefore, the said judgment would be

applicable even to the contractual employees, if they worked

for more than the required period.

11. The Single Bench of this Court in I.A.No.1 of 2019 in

W.P.No.47675 of 2018, had considered this issue at length

and after considering the judgment of the Hon'ble Supreme

Court in the case of Uma Devi and the subsequent

judgments on the issue has held that the introduction of

interdictory agency/contractor between the organization

and the outsourcing employees like the petitioners therein PMD,J W.P.No.173 of 2022

is only a device adopted by the GHMC to exploit the

petitioners by denying them the benefits available to regular

employees such as scales of pay, leave, medical benefits,

promotions, increments and other services benefits and the

GHMC cannot be allowed to perpetuate this violation of law

and therefore, it is not permissible to respondents therein to

take shelter under Act 2 of 1992 to deny regularization to

the petitioners, who have admittedly satisfied the criteria

laid down in Para 53 of the Judgment in Umadevi (cited

supra).

12. Learned counsel for the petitioners submits that this

judgment has not been challenged by the respondents

therein and therefore, it has become final. Even from the

averments made in the counter affidavit, it is noticed that

the respondents have not made any regular appointments to

the posts in which the petitioners have been working on

contract basis from the year 1990 onwards. Therefore, it is

clear that they have adopted the method of outsourcing only

to deny the petitioners the benefits of regularization.

PMD,J W.P.No.173 of 2022

13. In view of the same, the impugned order rejecting the

requests of the petitioners is clearly not sustainable. The

respondents are therefore, directed to reconsider the case of

the petitioners for regularization and pass orders of

regularization of their services with effect from the date of

their eligibility with all consequential benefits.

14. Accordingly, this writ petition is allowed. There shall

be no order as to costs.

Miscellaneous petitions, if any, pending in this Writ

Petition, shall stand closed.

                                    ____________________________
                                    JUSTICE P.MADHAVI DEVI


Dated:    .11.2022
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                                                 PMD,J
                                    W.P.No.173 of 2022

THE HONOURABLE SMT JUSTICE P.MADHAVI DEVI

W.P.No. 173 OF 2022

Dated: .11.2022

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