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Telangana High Court · body

2022 DIGILAW 713 (TS)

Gatla Srinivas v. Ale Raju

2022-11-09

ABHINAND KUMAR SHAVILI, NAMAVARAPU RAJESHWAR RAO

body2022
JUDGMENT : These Writ Appeals are being disposed of by way of this common order since the issue raised in these writ appeals is one and the same. 2. For the sake convenience, the facts in Writ Appeal No.735 of 2022 are discussed hereunder. 3. In W.A. No. 735 of 2022 is filed by the appellants assailing the common order passed by the learned Single Judge in W.P.Nos. 41907 of 2018, 3276 and 4057 of 2019 dated 07.02.2022 discussed hereunder. 4. Heard Mr. P.V. Ramana, Mr.Goda Shiva and the learned Special Government Pleader, for the appellants and Mr. M. Ramgopal Rao, learned standing counsel for Telanagana State Public Service Commission, Sri. CH.Ganesh, Mr. Satyanarayana Rao and Mr. S. Rahul Reddy for the contesting respondents. 5. Learned counsel for the appellants contended that the appellants herein are working on contract basis with the respondents; they are unemployed youth and were fully qualified and eligible to be appointed to the post of Lab-Technician Grade-II, the Telangana State Public Service Commission has issued notification dated 18.12.2017 inviting applications for various posts such as Radiographers, Pharmacist Grade-II and Lab-Technician Grade-II on various dates during the year 2017 & 2018; the appellants responded to the said notification for the post of Lab-Technician-II, and the last date for submission of application for the said post was 24.01.2018; thereafter, written examination was conducted in the month of May, 2018 and the final key was also published in the month of June; the grievance of the appellants herein is that some of the Lab-Technicians Grade-II, who were working on outsourcing basis, approached this Court after participating in the selection process claiming weightage of marks for the service rendered by them on outsourcing basis; in the notification dated 23.12.2017, the method of selection for the appointment to the post of Lab-Technician Grade-II is 70 % marks for written examination and 30 marks for service weightage, and the service weightage would be extended to Lab-Technicians who were already working on contract basis, and in respect of the unemployed candidates (i.e., appellants herein) there is no weightage, and they have to compete along with contract Lab-Technicians, and certain weightage of marks are earmarked for them and the outsourcing employees were not entitled to be granted service weightage. 6. 6. Learned counsel for the appellants has further drawn the attention of this Court to the rules issued by the State Government in G.O.Ms.No.166, dated 09.09.2017; notification issued by the Telangana State Public Service Commission as well as the rules issued in G.O.Ms. No. 166 dated 09.09.2017 make it very clear that there is no service weightage for the persons who were working on outsourcing basis and service weightage was extended only in respect of contract workers who were working on contract basis; the contesting respondents who were working on outsourcing basis, have not participated in the selection process, and having appeared for the written examination, they have turned around and were claiming service weightage of marks by filing W.P.No. 41907 of 2018 before this Court and the learned Single Judge of this Court allowed the said writ petition vide order dated 07.02.2022, by directing the official respondents to extend service weightage even in respect of contesting respondents, who were working on outsourcing basis. 7. Learned counsel for the appellants further contended that, the posts will be filled up by in service candidates (i.e., persons who were working on contract basis) as the rule provide the service weightage in respect of contract employees only, and if the service weightage is extended even to the outsourcing employees, and if anyone of the post which could be filled up by fresh candidates, then the selection process while comprising the merit would be defected, and even if the appellants had secured excellent marks, then also their case would not be considered as all the posts would be filled up by the in service candidates who were working on contract basis or outsourcing basis; and this particular fact was not properly considered by the learned Single Judge in W.P.No.41907 of 2018. 8. Learned counsel for the appellants further contended that the rules issued in G.O.Ms. No.166 dated 09.09.2017 fell for consideration before a Full Bench of this Court, and the Full Bench of this Court in W.P.No.40157 of 2017 vide order dated 18.09.2020 was pleased to upheld the rules which would mean that service weightage was upheld by the Full Bench i.e., the rules never granted any entitlement of service weightage to the outsourcing employees. No.166 dated 09.09.2017 fell for consideration before a Full Bench of this Court, and the Full Bench of this Court in W.P.No.40157 of 2017 vide order dated 18.09.2020 was pleased to upheld the rules which would mean that service weightage was upheld by the Full Bench i.e., the rules never granted any entitlement of service weightage to the outsourcing employees. Therefore, the order passed by the learned Single Judge in W.P.41907 of 2018 is contrary to law and the learned Single Judge has not examined the case from the perspective of unemployed youth who are aspirants for the said post; and therefore, prayed this Court to pass appropriate order in the writ appeals by setting aside the order passed by the learned Single judge in W.P.No. 41907 of 2018 dated 07.02.2002 and allow the writ appeals. 9. On the other hand, learned counsel for the contesting respondents contended that though they are called as out-sourcing employees, they were also subjected to regular selection posts, and only the nomenclature is different, and the official respondents have appointed the contesting respondents on outsourcing basis instead of appointing them on contract basis; the action of official respondents in granting weightage to contract employees and not granting weightage to outsourcing employees amounts to discrimination, and the nature of duties performed by outsourcing employees is also identical to that of contract employees; and therefore, the learned Single judge is right in allowing the Writ Petition in favour of contesting respondents; therefore, there are no merits in the Writ Appeals and the same are liable to be dismissed. 10. Learned Government Pleader appearing for appellants in W.A.No.614 of 2022 contended that the contesting respondents have participated in the selection process and after participating in the selection process, they are trying to seek entitlement for service weightage. 10. Learned Government Pleader appearing for appellants in W.A.No.614 of 2022 contended that the contesting respondents have participated in the selection process and after participating in the selection process, they are trying to seek entitlement for service weightage. However, the notification has made it abundantly clear that weightage is only in favour of contract employees and that the contesting respondents were aware that the service weightage would not be extended in favour of outsourcing employees; if the contesting respondents are aggrieved by the selection process, they ought to have challenged the notification itself; but, having participated in the selection process, the outsourcing employees cannot turn around and seek entitlement for service weightage for the service rendered by the outsourcing basis; therefore, the order passed by the learned Single Judge in W.P.No. 41907 of 2018 is contrary to the law and the same is liable to be set aside. The contesting respondents were not recruited by any selection process, and they were recruited through outsourcing agency, and the contesting respondents cannot compare themselves with contract employees, and the contract employees are appointed after following due selection process; therefore, on this ground also the contesting respondents are not entitled for grant of service weightage. Learned Government Pleader appearing for the unofficial respondents has further drawn the attention of this Court to the issue whether the outsourcing employees are entitled for service weightage or not was considered by a Full Bench of this Court i.e., in W.P.No. 40157 of 2017 vide order dated 18.09.2020, and negatived the claim of outsourcing employees for grant of service weightage; and therefore, the learned Government Pleader has contended that the learned Single Judge ought not to have allowed the writ petition in favour of the contesting respondents. 11. Sri Goda Shiva, learned counsel appearing for the appellants in W.A. 493 of 2022 contended that the appellants are working on contract basis; as per the notification as well as recruitment rules issued vide G.O.Ms. 11. Sri Goda Shiva, learned counsel appearing for the appellants in W.A. 493 of 2022 contended that the appellants are working on contract basis; as per the notification as well as recruitment rules issued vide G.O.Ms. No. 166 dated 09.09.2017, only the contract employees are entitled for grant of service weightage, if the service wightage is extended to the outsourcing employees, (rules do not permit), then the chances for the appellants would be very less, and persons who are not eligible to the marching over the contract employees, as they were already working since very long time and they were recruited after following regular selection process; and therefore, the order passed by the learned Single Judge is liable to set aside. 12. Sri. S. Rahul Reddy, learned counsel appearing for the contesting respondents contended that the contesting respondents are also working as outsourcing employees in Government Hospital, and the State cannot be any discrimination between the contract employee and outsourcing employee because the nature of duties performed by contract employees as well as outsourcing employees is one and the same; in the notification no-where it is stated that the weightage should be extended to contract employees; in the notification, it was specifically stated that service weightage would be extended for the service rendered in the Government; admittedly, the contesting respondents were working in the Government service, with a nomenclature of “outsourcing”, but not “contract” employees. Learned counsel for the contesting respondents relied on a judgment rendered by the Hon’ble Supreme Court in Dr. (Major) Meeta Sahai Vs. State of Bihar, (2019) 20 SCC 17 and contended that the Hon’ble Supreme Court had dealt with the very same issue and came to the conclusion that the Doctors who were working in Government hospitals and in the institutions which are being run by instrumentalities of States cannot be discriminated, and applying the said principle, the outsourcing employees, who were working in the Government Hospitals, also should be extended service weightage; and the learned counsel for the contesting respondents further relied upon a judgment rendered by the Hon’ble Supreme Court in B. Ramakichnin @ Balagandhi Vs. Union of India, (2008) 1 SSC 362 and contended that the experience gained after acquiring qualification, either before or after, should not be looked into; the only issue is whether an employee is having a relevant experience and that only has to be taken into account; admittedly, in the instant case, the contesting respondents were working on outsourcing basis for several years and as per the notification, the petitioners are entitled for service weightage and there cannot be any discrimination between contract employees working in government hospitals and the contesting respondents who are working on outsourcing basis. Learned counsel for contesting respondents has further drawn the attention of this Court to G.O.Rt.No.4271 dated 01.11.2008 wherein elaborate guidelines were framed by the State as to how the outsourcing employees have to be appointed and how their remuneration has to be paid; a perusal of the said G.O makes it abundantly clear that the contesting respondents were appointed after following due process, and having extracted the work from the outsourcing employees for several years, at the time of selection, the outsourcing employees cannot be discriminated for grant of service weightage. 13. This Court, having considered the rival submissions made by the parties, is of the considered view that the learned Single Judge ought to have allowed the writ petitions in W.P.No.41907 of 2018, dated 07.02.2022 in favour of the contesting respondents as admittedly, the contesting respondents were working on outsourcing basis and the rules as well as notification did not grant any service weightage to outsourcing employees, and moreover, the Full Bench of this Court in W.P.No. 40157 of 2017 dated 18.09.2020, has considered the very same issue as to whether outsourcing employees are entitled to the service weightage or not and it was negatived in the said writ petition by upholding the rules issued in G.O.Ms. No. 166 dated 09.09.2017 and therefore, the Full Bench has declined to grant relief in favour of contesting respondents. The learned Single judge was not justified in granting relief to the contesting respondents. Apart from that, the learned Single Judge has not considered the case from the point of view of unemployed youth that if service weightage is extended to the outsourcing employees as well as the contract employees, all the posts would be filled up with in-service candidates only, and no post would be left for unemployed youth. Apart from that, the learned Single Judge has not considered the case from the point of view of unemployed youth that if service weightage is extended to the outsourcing employees as well as the contract employees, all the posts would be filled up with in-service candidates only, and no post would be left for unemployed youth. Therefore, in view of earlier orders passed by the learned Single Judge are not in order, and therefore, the order passed by the learned Single Judge in W.P.No.41907 of 2008 and batch of cases and W.P.Nos.3276 and 4057 of 2019 dated 07.02.2022 are liable to be set aside. 14. Further, this Court, having considered the rival submissions made by the counsel appearing for the contesting respondents, is of the considered view that no doubt the contentions raised by the contesting respondents are justified, but however, there is a larger discrimination is being meted out to unemployed youth, and the outsourcing employees are not prevented from consideration and they are also eligible to compete among the posts which are meant for Direct Recruitment, and the outsourcing employees also can compete for the posts earmarked for direct recruitment, which would mean that the right to be considered for appointment is not taken away in respect of outsourcing employees. As far as the discrimination aspect is concerned between outsourcing and contract employees, the notification was issued based upon the rules issued in G.O.M.S.No.166 dated 09.09.2017 wherein Rule 9(b) of Andhra Pradesh State and Subordinate Rules 1996 was relaxed which would mean that relaxation has been given only in respect of contract employees, and since the notification is issued in tune with the G.O.M.S.No.166 dated 09.09.2017, the appellants were justified in giving service weightage. Though it is contrary to Rule 9(b) of State and Subordinate Rules 1996. But the State has taken enough care to ensure that Rule 9(b) is relaxed in G.O.M.S.No.166 dated 09.09.2014 and G.O.M.S.No.166 dated 09.09.2014 was also upheld by a Full Bench of this Court in W.P.No.41907 of 2018, dated 19.11.2018. Therefore, the question of granting service weightage to outsourcing employees would not arise. Moreover, the learned Single Judge also failed to appreciate that the contesting respondents having participated in the selection process in pursuance to the notification, again cannot claim any benefit contrary to the notification and selection process. Therefore, the question of granting service weightage to outsourcing employees would not arise. Moreover, the learned Single Judge also failed to appreciate that the contesting respondents having participated in the selection process in pursuance to the notification, again cannot claim any benefit contrary to the notification and selection process. On this ground also, the orders passed by the learned Single judge are liable to be set aside and accordingly they are set aside. However, it is made clear, if the contesting respondents come within the zone of consideration as per their merit, official respondents shall consider their case and give the appointments to the various posts which were notified by the Public Service Commission. 15. With these observations, all the Writ Appeals are allowed by setting aside the impugned order in W.P.Nos. 41907 of 2018, 3276 and 4057 of 2019 dated 07.02.2022. There shall be no order as to costs. 16. As a sequel, miscellaneous applications pending if any in these Writ Appeals, shall stand closed.