Disposed

Raj Kamal Singh v. State of U.P. and 2 Others

Allahabad HC5 Oct 2021WRIA/1953/2020

Case brief

AI extract

What is this about?

The petitioner challenged the refusal of appointment as a Peon based on outsourcing policy. Relying on a Supreme Court order, counsel argued for confirmation and pay continuity. The Court noted the petitioner was not a party to the Supreme Court appeal. Consequently, regarding Para-58(i), no relief was available. Based on Para-58(iii), the Court disposed of the petition by directing the State to c

What did the court decide?

Direction to the respondent to consider the petitioner's case in terms of Para-58(iii) of the Supreme Court order in Civil Appeal No. 865 of 2021.

Raj Kamal Singh Vs State of U.P. and 2 Others — Service and Employment | Allahabad HC (2021)

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Court No. - 35

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Case :- WRIT - A No. - 1953 of 2020

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Petitioner :- Raj Kamal Singh Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- A.D. Saunders Counsel for Respondent :- C.S.C.

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Hon'ble Vivek Agarwal,J.

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Heard Sri A.D. Saunders, learned counsel for the petitioner and Sri Pranav Ojha, learned Addl. Chief Standing Counsel for the State.

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Petitioner is aggrieved of order dated 16.01.2020 passed by the District Inspector of Schools, Azamgarh declining approval to the petitioner's appointment on the post of ' Paricharak ' (Peon) on the touchstone of a fact that Government of U.P. vide Order No. बब 0 आ 0-2-27/ दस -59( एम )/2008 dated 06.01.2011 decided to fill all Class-IV post through outsourcing.

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It is mentioned in the said order that though post of the 'Peon' had fallen vacant in Wesley Inter College, Azamgarh on 29.02.2008, when one Sri Faujdaar Yadav attained age of superannuation, but Principal of the said institution had sought permission to fill that post vide Notification dated 12.12.2011. Though, permission to fill that post was not granted yet the then Principal had issued an advertisement on 20.03.2012 in local newspapers and on the basis of the applications, received in pursuance of the advertisement, constituted a Selection Committee and appointed petitioner-Raj Kamal Singh, who had submitted his joining on 16.04.2012. It is submitted that when salary was not paid to the petitioner, he filed Writ A No. 11678 of 2019, relying on decision of a Coordinate Bench of this Court in case of the Committee of Management, Lala Babu Baijal Memorial Inter College, Mehandipur, Ghaziabad and Others vs. State of U.P. and Others; 2012 (4) ADJ 586 , on the ground that Division Bench of this Court deprecated the Government Order asking for making Class-IV appointments through outsourcing and therefore, once the order of the State, directing appointments to Class-IV post through outsourcing was set aside, the appointments through other channels were deemed to be permitted. Thus, petitioner's appointment should have been deemed to be proper.

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Sri Saunders submits that earlier appointment of the petitioner was approved by the authorities, but he was not being paid salary, then he had approached the court when the High

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Court had directed the authorities to reconsider his case and decide it through a speaking order. Copy of earlier order passed in terms of Writ Petition No. 21148 of 2017 decided on 15.05.2017 is on record, as Annexure-13.

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Petitioner's contention is that recently Hon'ble Supreme Court vide order dated 27.09.2021, passed in Civil Appeal No. 865 of 2021, the State of U.P. and Others vs. Principal Abhay Nandan Inter College & Others, and other connected Civil Appeals, has upheld the policy of the State Government providing for recruitment on Class-IV post through outsourcing, but in Para-58 has carved out certain exceptions, which are as under:-

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"............58. Accordingly, we have no difficulty in setting aside the judgment of the Division Bench dated 19.11.2018 and the consequential orders passed while upholding the impugned Regulation. The appeals are allowed with the following directions:

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(i) The respondents/writ petitioners in Civil Appeal No 2753 of 2021 are directed to be confirmed by granting adequate approval as Class "IV" employees, having given prior approval.

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(ii) The respondents/writ petitioners and similarly placed persons who are recruited by the institutions including the respondents shall be continued with the same scale of pay as if they are recruited prior to 08.09.2010 for which the entire disbursement will have to be made by the institutions alone.

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(iii) The appellants shall undertake the necessary exercise to see to it that there is a mechanism available for the proper implementation of "Outsourcing" with specific reference to the conditions of service of those who are employed while taking note of the recommendations made in the Seventh Central Pay Commission."

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Petitioner's contention is that his case will fall within category (i) and therefore, he be directed to be confirmed and granted approval as Class-IV employee.

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However, fact of the matter is that Para-58(i) categorically restricts the benefits to the respondents/writ petitioners in Civil Appeal No. 2753 of 2021 and in relation to those respondents/writ petitioners, there is a direction for confirmation and not in regard to other petitioners, who were not party to Civil Appeal No. 2753 of 2021.

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Sri Saunders admits that petitioner was not a party to Civil Appeal No. 2753 of 2021. Thus, petitioner's case is to be tested on the touchstone of directions contained in Para 58(ii), which provides for continuance of all those persons, who were recruited prior to 08.09.2010. Admittedly, petitioner was not recruited prior to 08.09.2010, therefore, provisions contained in Para 58(ii)will not be applicable.

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Vide Para 58(iii), State has been directed to take necessary steps for proper implementation on outsourcing scheme with specific reference to the conditions of service for those who are employed while taking note of the recommendations made by 7th Central Pay Commission. Thus, only relief, which can be extended to the petitioner in terms of the order of the Supreme Court dated 27.09.2021, is to direct the authorities of the State that as and when the process of recruitment is started by implementing policy of outsourcing, then the petitioner may be given option to apply with specific reference to the conditions of service and employment of the petitioner.

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At this stage, Sri Saunders submits that interpretation of clause-2 of Para-58 of the order of the Supreme Court is that all the persons recruited by the institution shall be continued in the same scale of pay, as if they are recruited prior to 08.09.2010, for which, their entire disbursement is to be made by the institutions alone.

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I am not in agreement with the submissions made by Sri Saunders, but even if hypothetically this meaning is given to the interpretation of clause-2 of the Para-58 of the judgment of the Supreme Court, then also no effective relief can be granted in favour of the petitioner in absence of petitioner impleading the institution namely, Wesley Inter College, Azamgarh, as a party because in terms of the judgment of Supreme Court, matter will than be strictly between the Management of the Inter College and the petitioner and if petitioner, so desire, he can seek relief against the Management of Wesley Inter College, Azamgarh in appropriate proceedings, but by no stretch of imaginations any relief can be extended in favour of the petitioner against the authorities of the State Government.

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Thus, petition is disposed of with a direction that respondent shall consider the case of the petitioner in terms of the provisions contained in Para-58(iii) of the order passed by the Supreme Court in Civil Appeal No. 865 of 2021.

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Order Date :- 5.10.2021 Vikram/-

Raj Kamal Singh v. State of U.P. and 2 Others

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Raj Kamal Singh v. State of U.P. and 2 Others

Case brief

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