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
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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
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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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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
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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
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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
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