The main legal point established in the judgment is the lack of an employer-employee relationship between the petitioners and the State Government, as well as the discretion of the contractor in placing employees on assignments.

ORDER : – By filing this petition under Article 226 of the Constitution of India, the challenge has been made to the order dated 10-12-2021 and 28-12-2021 (Annexure P-1 and P/2 respectively) passed by the respondent No. 2; whereby it has been decided to outsource the services through the Outsourcing Agency and has also directed to conduct the fresh selection for appointment on the post of Assistant Grade- III/Data Entry Operator by conducting an open written examination.

2. The brief facts leading to filing of this case are that the respondent No. 2 issued directions dated 25-1-2018 by which the procedure for appointment of Assistant Grade-III/Data Entry Operator through the outsourcing agency is envisaged. The petitioners were initially appointed as Assistant Grade-III/Data Entry Operator in their respective schools after appointment on contractual basis through the Outsourcing Agency namely; MPCON Ltd. The petitioners were performing their duties honestly and sincerely and their services were extended from time to time. To the utter surprise of the petitioners, the respondent No. 2 issued the impugned order dated 10-12-2021; whereby, the respondent No. 3 has been authorized to outsource the services by conducting fresh selection for appointment of Assistant Grade-III/Data Entry Operator.

3. The learned counsel for petitioners while relying on the judgment delivered by Division Bench of this Court in Writ Appeal No. 418/2017 (State of M.P. vs. Puneet Mohan Khare,) contends that in similar set of facts, the Division Bench has held that contractual employees cannot be substituted by another set of contractual employees by State Govt.

4. According to learned counsel for the petitioners they cannot be replaced by another set of employees.

5. On the other hand, learned counsel for the State opposed the prayer and submitted that petitioners herein were never appointed by conducting a regular selection by the State Government. From the beginning itself, they were appointed through outsourcing agency namely MPCON Limited. It is for the Govt. to change the mode of appointment by outsourcing the services as per requirement on contract basis. Aforesaid decision for outsourcing has been taken in the wider interest of economy and efficiency, therefore, this petition is filed merely on the basis of apprehension. Decision relied upon by the learned counsel for the petitioners in the case of State of M.P. vs. Puneet Mohan Khare, 2018 SCC online MP 78 is not applicable in the facts and circumstances of the instant case as in the said case, petitioners were employed by the State Govt. on different posts such as Managers, Office Assistant-cum- Accountants etc. for the purpose of establishing Kaushal Vikas Kendra in the State in furtherance of the resolution of the Legislative Assembly No. 50 for upliftment of vocational education, I.T.I. Institutes or to restructure and upgrade them.

6. According to Govt. Counsel, posts were filled up on contractual basis. Subsequently, when the contract period came to an end, decision was taken to outsource services. In the present case, petitioners were never appointed by the State Govt. or by any of its agencies. He prayed for dismissal of the petition.

7. Heard the learned counsel for parties.

8. On perusal of the record, it can be seen that the petitioners have not filed any appointment order issued by the State Government or its agency appointing them on various posts. Admittedly, they have been appointed through the Outsourcing Agency namely; MPCON Ltd. The salary of the petitioners is also not being paid through the State exchequer but the same is paid through the Contractor, who entered into contract with the State Govt.

9. From the submissions, pleadings and documents submitted and referred, it appears that petitioners are not contractual employees of principal employer (State Govt. herein) because principal employer does not pay the salary, it is being paid by the contractor and it is not the princip