High Court
Case Details
Court No. - 39 Case :- SPECIAL APPEAL No. - 161 of 2023 Appellant :- Greater Noida Industrial Development Authority And Another Respondent :- Om Veer And 7 Others Counsel for Appellant :- Anjali Upadhya,Sr. Advocate Counsel for Respondent :- C.S.C.,Uma Nath Pandey Hon'ble Mrs. Sunita Agarwal,J. Hon'ble Vikas Budhwar,J.
Legal Reasoning
Heard Sri H.N. Singh learned Senior Counsel assisted by Ms. Anjali Upadhyay learned Advocate appearing for Greater Noida and Sri Ashok Khare learned Senior Advocate assisted by Sri Raghvendra Pratap learned counsel appearing for the respondents No. 1 to 5. There is no dispute about the fact that the writ petitioners/respondents herein had been engaged on the post of Junior Engineer/Assistant Manager (Civil) in Engineering Department of Greater Noida through a service agency namely, M/s. Madhav Associates. The copy of the office order of posting of the writ petitioners/respondents herein dated 20.06.2022 is appended at page '127' of the paper book.
Decision
A perusal of the letter dated 04.05.2022 written by the Additional Chief Executive Officer, Greater Noida to the General Manager (Engineering), Greater Noida further indicates that the list was given for selection to the post of Junior Engineer (Civil) through outsourcing agency which includes the name of the writ petitioners/respondents herein. The grievance raised by the petitioners in the writ petition is with regard to the letter dated 30.01.2023 written to the outsourcing agency namely, M/s. Madhav Associates to return the manpower engaged by the appellant Greater Noida which includes the name of the writ petitioners/respondents herein. It is argued by the learned Senior Counsel appearing for the appellants that the engagement of the writ petitioners was for a fixed period as per the contract entered with the outsourcing agency namely, M/s. Madhav Associates. The writ petitioners had presented themselves for engagement on the post of Junior Engineer (Civil) through outsourcing agency. They cannot raise any grievance for return of the manpower vide order dated 20.01.2023 depending upon the requirement appellant/Greater Noida/institution concerned. of the The submission is that the learned Single Judge has erred in issuing directions by way of an interim order to continue the writ petitioners on the post of Junior Engineer (Civil) in view of the Government Order dated 18.08.2020, which has been misread and mis-interpreted so far as the continuance of the writ petitioners is concerned. It is argued that the said Government Order only provides that in case of re-engagement on the post in question through outsourcing, the outsourced employees who had previously worked on the post in question would be entitled for consideration during the process of selection as their replacement by new persons would result in administrative inconvenience. Sri Ashok Khare learned Senior Advocate appearing for the writ petitioners, however, submitted that the petitioners were working on the post of Technical Assistant in Greater Noida for a long time and to demonstrate the said fact he has invited the attention of the Court to the communications dated 04.04.2022, 26.04.2022 and 01.04.2022 sent by the Senior Manager/Work Circle IV to the Senior Manager (Technical), Greater Noida, wherein the period of working of the writ petitioners on the post of Technical Supervisor in the engineering department of Greater Noida has been indicated. The submission is that the engagement of the writ petitioners on the post of Junior Engineer (Civil) was not a new engagement rather it was continuance of the writ petitioners in light of the past services rendered by them in the institution concerned. It is further argued that there is not much difference in the work and responsibility of the Technical Supervisor and Junior Engineer (Civil). Insofar as the engineering department of Greater Noida is concerned. It is further argued that two service provider agencies have been engaged by Greater Noida to outsource manpower; one namely, M/s. Madhav Associates and another M/s. Radha Krishan Service Provider. Total 36 workers had been engaged through M/s. Madhav Associates out of whom 30 were newly engaged employees and 6 already working in Greater Noida, five petitioners were amongst them. The Greater Noida has engaged 200 workers through another agency namely, M/s. Radha Krishan Service Provider, out of whom 187 were old employees and 13 were new recruitees. It is argued that 187 contractual workers engaged through M/s. Radha Krishan Service Provider are still continuing and they are junior to the writ petitioners/respondents herein. The submission, thus, is that the return of the employees/workers engaged through service provider namely, M/s. Madhav Associates was nothing but an effort of Greater NOIDA to deprive the writ petitioners from continuing on the post of Junior Engineer (Civil). The submission, thus, is that the instant case is the result of the utter violation of the Government Order dated 18.08.2020, which provides protection to outsourced employees and proceeds on the principle that a contractual employee cannot be replaced by another contractual employee, giving liberty to the institution concerned to adopt pick and choose policy. It is further argued that the return of the outsourced workers including the petitioners through M/s. Madhav Associates was not on account of paucity of work rather it was on account of an inquiry initiated into the matter of recruitment of outsourced employee by the agency namely, M/s. Madhav Associates. The submission thus, is that in any case, nothing can be reflected upon the working of the writ petitioners/respondents herein by their return to the outsourcing agency namely, Madhav Associates. Be that as it may, considering all these submissions of the learned counsels for the parties, the fact remains that the writ petitioners were engaged through an outsourcing agency namely, M/s. Madhav Associates and they have offered themselves for selection on the post of Junior Engineer (Civil)/Assistant Manager (Civil) through outsourcing. There cannot be a dispute with regard to the engagement of the writ petitioners/respondents herein on the said post through outsourcing. As on date, there is no contention of the writ petitioners that new persons have been engaged through any of the outsourcing agency, with whom Greater NOIDA had entered into a contract for supply of the manpower. It is also not the case of the writ petitioners that they have been replaced by another set of outsourced employee after their return to the outsourcing agency namely, M/s. Madhav Associates by the order dated 30.01.2023. The implication of the Government Order dated 18.08.2020 could only be that in case of any fresh engagement by Greater Noida through outsourcing, the writ petitioners being the previously engaged workers and having worked with Greater Noida would have a claim for consideration. As no such situation is as on date, we do not find any substance in the submission of the learned Senior Counsel appearing for writ petitioners to allow them to continue to work on the post of Junior Engineer (Civil) that too by way of an interim order passed by the writ court. The interim order passed by the writ court amounts to passing of the final order without adverting to the facts of the present case. No counter affidavit has been filed so far by Greater Noida. It is submitted by the learned counsel for the appellant Greater NOIDA that they would be filing counter affidavit within a period of one week from today, rejoinder affidavit may be filed within a period of one week, thereafter. For the above, while modifying the order dated 14.03.2023 staying the effect of the direction to the appellant Greater Noida to permit the continuance of the writ petitioners/respondents herein, we find that the issue of continuance of the writ petitioners can only be determined by way of final adjudication after exchange of the affidavits of the parties. The learned Single Judge is requested to decide the matter as expeditiously as possible. The appeal is accordingly, disposed of. It goes without saying that independent consideration shall be given to the claim of the parties by the learned Single Judge without being influenced by any of the observations made hereinabove, which are confined to the continuance of the issue of writ petitioners by way of an interim order. Order Date :- 6.4.2023 Rajesh Digitally signed by :- RAJESH KUMAR High Court of Judicature at Allahabad