Dismissed

Smt. Suman Kushwaha and 6 Others v. State of U.P. and 4 Others

Allahabad HC16 Jan 2020WRIA/14022/2019

Case brief

AI extract

What is this about?

This judgment dismissed a petition challenging the outsourcing of paramedical staff at Anpara Thermal Power Project hospital. The High Court held that the decision was a valid policy determination by the Nigam's Board to ensure efficiency, noting that contractual employees lacked any legal right to continue in service against such a directive.

What did the court decide?

Writ petition dismissed; the impugned decision to outsource personnel approved.

Smt. Suman Kushwaha and 6 Others Vs State… — Pension and Retirement Benefits | Allahabad HC (2020)

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Court No. - 41

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Case :- WRIT - A No. - 14022 of 2019 Petitioner :- Smt. Suman Kushwaha And 6 Others Respondent :- State Of U.P. And 4 Others Counsel for Petitioner: Siddharth Khare,Ashok Khare Sr. Advocate Counsel for Respondent :- C.S.C.,Abhishek Srivastava

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Hon'ble Mrs. Sunita Agarwal,J.

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Heard Sri Ashok Khare, learned Senior Advocate assisted by Sri Utkarsh Birla, learned counsel for the petitioners and Sri Abhishek Srivastava, learned counsel for the respondent nos.2 to 5.

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By means of the present petition, the petitioners herein are seeking for quashing of the decision taken by the Managing Director, U.P. Rajya Vidyut Utpadan Nigam Ltd, Lucknow (in short referred as the “Nigam”) dated 19.8.2019 whereby he had approved the proposal of the Chief Engineer/Project Coordinator, Anpara Thermal Power Project for inviting tenders for engagement of service provider to provide manpower for the post of Staff Nurse, X- ray Technician, Lab Technician, Dresser/first Aider and Ward boy/Ward Aaya, (total 11 posts) for the hospital being run in the project. Monthly honorarium to be paid for each category of post has been given in the Office order dated 19.8.2019. Apart from the same, 10% of the total honorarium to be paid to the service provider and the amount to be paid towards E.P.F and E.S.I benefits have also been indicated therein. Thus, the proposal for expenditure of Rs.19,63,773/- + GST submitted by the Project Coordinator/Chief Engineer was approved by the Managing Director of the Nigam.

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The petitioners (excluding petitioner no.7) herein claim to have been appointed on the aforesaid posts sometime in the year 2016.

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The petitioner no.7, Krishna Kumar Yadav, as indicated in the writ petition, was appointed in the year 2013 on the post of Pharmacist for a period of one year. His contractual engagement was last extended for a period of three months w.e.f 20.1.2018 vide order dated 16.1.2018. There is nothing on record which would indicate that his services had further been extended.

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Be that as it may, the order impugned, as noted above, does not pertain to the post of Pharmacist. The petitioner no.7, therefore, cannot be said to be aggrieved by the said decision. In other words, since the post of pharmacist has not been Outsourced, the petitioner no.7, therefore, cannot be allowed to join in the present petition to challenge the aforesaid decision of the Managing Director, U.P. Rajya Vidyut Utpadan Nigam Ltd., Lucknow to Outsource the services of other paramedical staff in Anpara Project hospital.

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As regards the remaining petitioners, it is stated that they were engaged by an Office Order dated 20.2.2016 issued by the Chief Engineer/ Project Coordinator. The contractual appointment of the said petitioners had been renewed from time to time, last renewal being dated 7.6.2019 for a period of three months from the said date.

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After expiry of the aforesaid period, their contractual engagement has not been extended, rather by the Circular dated 1.3.2019, the General Manager, U.P Vidyut Utpadan Nigam Ltd had directed the Chief Engineer/Project Coordinator to engage Contractual para medical staff through Outsourcing. The request of the General Manager, Anpara Thermal Power Project for renewal of the Contractual appointment of the paramedical staff (petitioners herein) had, thus, been turned down.

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Another Office Order dated 19.8.2019 had, thereafter, been issued by the Managing Director, UP. Rajya Vidyut Utpadan Nigam

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inviting tender for engagement of the service provider to provide competent paramedical staff for a period of one year. Challenging the said decision, learned senior counsel for the petitioners vehemently submits that the contractual employees cannot be replaced through Outsourcing as there was no complaint regarding their work and conduct and, moreover, additional expenditure is being incurred by paying 10% to the service provider for no reason whereas the para-medical staff even engaged through Service provider in the hospital would be working under the direct supervision of the doctors and the Management of the hospital. The service provider is sought to be engaged for providing manpower only and not to provide health services. There is no justification for engagement of the para medical staff such as Staff Nurse, Technician etc. through service provider, and as their work is highly skilled in nature, there will be no accountability of the Staff provided by the service Provider. Moreover, no useful purpose would be served by Outsourcing the appointment of para medical staff as it would result in incurring more expenditure. The decision to hire a Service provider to provide staff for both services which is part of essential service is arbitrary.

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One of the objects to appoint staff through outsourcing is to save public money which cannot be achieved by the arrangement made herein rather additional liability of 10% is being incurred by the respondents to pay to the service provider for no reason. Extra payment towards E.P.F and E.S.I payable to outsourced staff is another additional expediture/liability of the Nigam whereas same is not being paid to the contractual staff directly engaged.

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In any case, the petitioners have been discharging duties to the utmost satisfaction of the Management and doctors of the hospitalin-question for the last more than 3 years and there has been no

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complaint against them. There is, thus, no justification for their replacement from the Outsourced staff.

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Sri Abhishek Srivastava, learned counsel appearing for the respondents, on the other hand, vehemently submits that the tender for selection of the Service provider has already been issued on 4.9.2019 pursuant to the directions issued by the Chief Engineer/Project Coordinator, Thermal Project Anpara, Sonbhadra, U.P. The decision to engage para medical staff through outsourcing has been taken to make the health services hasslefree in compliance of the policy decision taken by the Board of the Nigam in its 179^th meeting held on 7.1.2019. The communication dated 1.3.2019 issued by the Managing Director, U.P. Rajya Vidyut Utpadan Nigam., Ltd is in compliance of the said decision.

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The petitioners herein were engaged on purely contractual basis and they have no legal right to continue in service. They cannot be permitted to challenge the selection of Service provider simply on the premise that their work and conduct had been satisfactory. It is contended that the present is not a case of replacement of one set of contractual employees with another, at the whims and fancies of the employer. Rather, it is a case where keeping in mind of the smooth functioning of the hospital to provide essential health services in order to the employees of the project, a policy decision has been taken to engage a service provider so as to get best suitable persons in the market.

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The purpose of making payment of 10% honorarium to the service provider is in lieu of his liability to provide best services. With this arrangement, the replacement of para medical staff in the hospital, in case of any complaint against any of them would be a smooth exercise. This apart, lot of time is being wasted in administrative decisions for getting renewal of the services of the

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contractual employees each time and during the break in their service, the work of the hospital suffers a lot.

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From all angles, the policy of Outsourcing is found to be more favourable in the interest of the Nigam. It was considered that the officials of the Nigam and the Project would be free from the hassle relating to selections made on their own from time to time and the expenditures in making selection can be utilized to pay to the service provider.

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Having perused the material on record and considered the submissions of learned counsel for the parties, this Court finds that the decision to Outsource contractual staff for the hospital being run for the project employees has been taken at the level of Board of the Nigam. The communications under challenge in the present petition have been issued in compliance of the said decision.

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Thus, it is the policy decision taken by the Board which is the basis to engage contractual para medical staff through a service provider instead of engaging them directly. The employer is the best person to decide as to how to manage their organisation/institution. It is not possible for the Court to visualise or assess the difficulties of the employer in running its organization/institution. Outsourcing as one of the method of contractual engagement of Staff in Public institutions has been recommended by the 6^th and 7th Pay Commission. The 7^th Pay Commission in its recommendation has visualised outsourcing being in the interest of economy and efficiency. Board guidelines have been provided therein for identification of contractors and tendering process. The Court is of the opinion that the Work of staff nurse, X-ray technician may require high professional skills but for this reason alone the engagement of contractual staff through service Provider cannot be held to be arbitrary or illegal.

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The Service provider having experience in the field of Health Services are in contact with the best of stuff in the market and may provide highly skilled para-medical staff to man the hospital. Moreover, in case the staff provided by it is found inefficient, his/her replacement would be a smooth exercise as it would not require any administrative process to be undertaken by the management of the Project. The argument of the learned Senior counsel for the petitioners that 10% additional expenditure is being incurred for engagement of the contractual staff through Service provider for no reason would not take the matter any further as it is not possible for the Court to express any opinion on the said decision of the employer. The employer is the best person to manage any organization/institution and to decide the matters relating to budgetary implications.

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Above all, the petitioners herein are contractual employees whose engagement has not been renewed in view of the policy decision taken by the Board of the Nigam. They have no legal right to continue in service. It is not possible for the Court to take any exception to the decision of the employer to engage a particular set of employees through Outsourcing for smooth running of its institution/organisation/hospital, at the instance of the petitioners.

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The decision of the Managing Director U.P Rajya Vidyut Vitran Nigam., Lucknow dated 19.8.2019, requires no interference.

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The writ petition is found devoid of merit and hence dismissed.

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Order Date :- 16.1.2020 Harshita

Smt. Suman Kushwaha and 6 Others v. State of U.P. and 4 Others

Case brief

What is this about?

What did the court decide?

Smt. Suman Kushwaha and 6 Others v. State of U.P. and 4 Others

Case brief

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