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IN THE HIGH COURT OF MADHYA PRADESH
Suresh Kumar Kait, CJ, and Vivek Jain, J.
Darvari Singh Sareyam & Others v. The State of M.P.
Writ Appeals No. 898 of 2024 with 897 of 2024, 1160 of 2024, 1266 of 2024, 1267 of 2024, 1268 of 2024 and 1301 of 2024 (Jabalpur): against the common order dated 11.1.2024 passed in Writ Petitions No. 11632 of 2020 and 17794 of 2020;
Decided on 2.4.2025
(1) Civil Services -- contract employee -- transfer to outsourcing agency -- services of petitioners handed over by National Health Mission to Rogi Kalyan Samiti -- held -- petitioners were only working on contract basis -- when contract period is over, employer not duty bound to continue contract unless terms and conditions of contract specifically make provision for continuation of employee in service based on his suitability and performance and availability of work -- where person is to be appointed on contractual basis, recruitment through outsourcing not prohibited -- outsourcing of employees is matter of policy -- cannot be held to be unconstitutional as long as contractual rights of such outsourced staff are protected -- respondent-NHM was within its rights to deploy writ petitioners to RKS and also to engage Support Staff through outsourcing agency -- engagement of petitioners through outsourcing not illegal -- their consent not required before engaging them through outsourcing -- no direction could be issued to NHM to maintain original service conditions of petitioners and to permit them to work directly under NHM. [Para 16
(2) Civil Services -- contract employee -- transfer to outsourcing agency -- change of service conditions -- writ petitioners have not been replaced by outsourced employees -- even on their redeployment with RKS through outsourcing agency, it has been directed to give them preference in matter of employment -- change of service conditions would depend upon terms and conditions of contract and its breach etc. -- even otherwise, by interim order, it was directed that service conditions of petitioners shall not be changed -- but it was left open to respondents to take work from petitioners wherever it is required -- held -- there is no change of service conditions by NHM while allocating services of Support Staff to RKS or by engaging them through outsourcing agency. 2022 (2) JLJ 460 (SC), Writ Appeal No. 418 of 2017 decided on 5.2.2018 and Writ Petition No. 11482 of 2020 decided on 20.8.2020 distinguished. [Para 17
(3) Civil Services -- contract employee -- contractual employees have no vested right to continue on post -- their rights are exclusively governed by terms and conditions of contract -- but if employer is in need of services which contractual employee was performing and wants to engage another contractual employee against same post, person who is and/or was already working prior to his discontinuation by employer, shall have to be considered first for such appointment. Writ Petition No. 5594 of 2017 decided on 22.3.2018 referred to. [Para 18
(4) Civil Services -- contract employee -- transfer to outsourcing agency -- payment of honorarium at reduced rate -- held -- NHM, while allocating services of Support Staff, who were earlier deployed in various programmes being carried out by it, to RKS has only handed over management of services of Support Staff to RKS -- even honorarium of Support Staff is still being paid from funds allocated by NHM -- writ petitioners are discharging the same work which they were doing while working as Support Staff in NHM -- not justifiable for NHM to direct payment of honorarium to writ petitioners at reduced rate. W.P. No.11482 of 2020 decided on 20.8.2020 distinguished. [Para 21
¼1½ flfoy lsok && lafonk deZpkjh && cká lzksr vfHkdj.k dks varj.k && jk"Vªh; LokLF; fe'ku }kjk ;kphx.k dh lsok,¡ jksxh dY;k.k lfefr dks lkSai nh xbZa && vfHkfu/kkZfjr && ;kphx.k dsoy lafonk ds vk/kkj ij dk;Zjr Fks && lafonk dh vof/k lekIr gksus ij fu;kstd lafonk tkjh j[kus dks drZO;kc) ugha] tc rd fd lafonk ds fuca/ku vkSj 'krksaZ esa deZpkjh dh mi;qärk vkSj çn'kZu rFkk dk;Z dh miyC/krk ds vk/kkj ij mls lsok esa cuk, j[kus dk fofufnZ"V mica/k ugha fd;k x;k gks && tgk¡ O;fä lafonkRed vk/kkj ij fu;qä fd;k tkuk gksrk gS ogk¡ cká lzksr ls HkrhZ çfrf"k) ugha && cká lzksr ls deZpkjh mikIr djuk uhfr dk fo"k; gS && tc rd cká lzksr ls mikIr ,sls deZpkfjo`an ds lafonktkr vf/kdkj lqjf{kr gSa rc rd bls vLkaoS/kkfud vfHkfu/kkZfjr ugha fd;k tk ldrk && çR;FkhZ ,u,p,e }kjk fjV ;kphx.k dks vkjds,l esa vfHkfu;ksftr fd;k tkuk rFkk cká lzksr vfHkdj.k ds ek/;e ls lg;ksxh deZpkfjo`an dks dk;Z ij yxk;k tkuk Hkh mlds vf/kdkj{ks= esa Fkk && ;kphx.k dks cká lzksr ls dk;Z ij yxkuk voS/k ugha && mUgsa cká lzksr ls dk;Z ij yxkus ds iwoZ mudh lgefr visf{kr ugha && ;kphx.k dh lsok dh ewy 'krsaZ cjdjkj j[kus vkSj mUgsa lh/ks ,u,p,e ds v/khu dk;Z djus nsus ds fy, ,u,p,e dks funZs'k tkjh ugha fd;k tk ldrkA ¼iSjk 16
¼2½ flfoy lsok && lafonk deZpkjh && cká lzksr vfHkdj.k dks varj.k && lsok dh 'krksaZ dk ifjorZu && fjV ;kphx.k dks cká lzksr ls mikIr deZpkfj;ksa }kjk çfrLFkkfir ugha fd;k x;k && cká lzksr vfHkdj.k ds ek/;e ls vkjds,l ds lkFk muds iqu% vfHkfu;kstu ij Hkh fu;kstu ds fo"k; esa mUgsa vf/keku fn, tkus dk funs'k fn;k x;k gS && lsok dh 'krksaZ dk ifjorZu lafonk ds fuca/ku vkSj 'krksaZ rFkk mlds Hkax ij fuHkZj gksxk && vU;Fkk Hkh] varfje vkns'k }kjk funsf'kr fd;k x;k Fkk fd ;kphx.k dh lsok dh 'krsaZ ifjofrZr ugha dh tk,¡xh && ijarq tgk¡ Hkh vko';d gks ogk¡ ;kphx.k ls dk;Z ysus ds fy, çR;FkhZx.k dks Lora= j[kk x;k Fkk && vfHkfu/kkZfjr && lg;ksxh deZpkfjo`an dh lsok,¡ vkjds,l dks vkcafVr djrs le; vFkok mUgsa cká lzksr vfHkdj.k ds ek/;e ls dk;Z ij yxkrs le; ,u,p,e }kjk lsok dh 'krksaZ esa dksbZ ifjorZu ugha fd;k x;kA 2022 ¼2½ ts,yts 460 ¼mPpre U;k-½ fjV vihy Ø- 418 lu~ 2017 fu.khZr fnukad 5-2-2018 rFkk fjV ;kfpdk Ø- 11482 lu~ 2020 fu.khZr fnukad 20-8-2020 çHksfnrA ¼iSjk 17
¼3½ flfoy lsok && lafonk deZpkjh && lafonkRed deZpkfj;ksa dks in ij cus jgus dk dksbZ fufgr vf/kdkj ugha gksrk && muds vf/kdkj vuU;r% lafonk ds fucaèku vkSj 'krksaZ }kjk fofu;fer gksrs gSa && ijarq ;fn fu;kstd dks mu lsokvksa dh vko';drk gS tks lafonkRed deZpkjh dj jgs Fks vkSj og mUgha inksa ij fdUgha vU; lafonkRed deZpkfj;ksa dks dk;Z ij yxkuk pkgrk gS] rks ,slh fu;qfä ds fy, igys ml O;fä ij fopkj fd;k tk,xk tks dk;Z dj jgk gS vkSj@vFkok fu;kstd }kjk jksds tkus ds iwoZ dk;Z dj jgk FkkA fjV ;kfpdk Ø- 5594 lu~ 2017 fu.khZr fnukad 22-3-2018 fufnZ"VA ¼iSjk 18
¼4½ flfoy lsok && lafonk deZpkjh && cká lzksr vfHkdj.k dks varj.k && de nj ij ekuns; dk lank; && vfHkfu/kkZfjr && ,u,p,e us mlds }kjk lapkfyr fofHkUu dk;ZØeksa esa iwoZ ls vfHkfu;ksftr lg;ksxh deZpkfjo`an dh lsok,¡ vkjds,l dks vkcafVr djrs le; vkjds,l dks lg;ksxh deZpkfjo`an dh lsokvksa dk çca/ku ek= lkSaik gS && lg;ksxh deZpkfjo`an ds ekuns; dk lank; rd vHkh Hkh ,u,p,e }kjk vkcafVr fuf/k ls fd;k tk jgk gS && fjV ;kphx.k ogh dk;Z dj jgs gSa tks og ,u,p,e esa lg;ksxh deZpkfjo`an ds :i esa dk;Z djrs gq, dj jgs Fks && ,u,p,e }kjk fjV ;kphx.k dks de nj ij ekuns; lankÙk djus dk funs'k fn;k tkuk U;k;ksfpr ughaA fjV ;kfpdk Ø-11482 lu~ 2020 fu.khZr fnukad 20-8-2020 çHksfnrA ¼iSjk 21
ORDER
Kait, C.J. -- 1. These intra-Court appeals preferred under section 2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 have been directed against the common order dated 11.1.2024 passed by the learned Single Judge in a batch of five writ petitions relatable to these appeals. For the sake of brevity, parties to these appeals are, hereinafter, referred to as per their nomenclature in the writ petitions.
2. WA No.898 of 2024 herein has been filed by some of the writ petitioners in WP No.11632 of 2020 whereas WA No.897 of 2024 has been filed by the writ petitioner in WP No.17794 of 2020. They are aggrieved by the part of the impugned order passed the learned Single Judge which allows the respondents/National Health Mission, Madhya Pradesh (hereinafter referred to in short as “the NHM”), to hand over their services to the outsourcing agency and accordingly, a direction has been sought against the NHM to maintain their original service conditions and permit them to work directly under the NHM.
3. Per contra, remaining writ appeals, in hand, have been filed by the respondents/National Health Mission for setting aside of the impugned order passed by the learned Single Judge.
4. Given the commonality of the questions involved, all these appeals have been heard together and are decided by this common order. However, for the sake of convenience, the facts are taken from WA No.898 of 2024 arising from W.P. No. 11632 of 2020.
5. The facts of the case, in nutshell, are that initially National Rural Health Mission (for short as “the NRHM”) was created by the Government of India with an aim to augment basic health care services. The NRHM, Bhopal issued a Notification dated 26.12.2012 (Annexure P-1 to the writ petition) that in order to strengthen Medicine Distribution Centres in 778 Health Centres of the State, appointments of Pharmacists, Data Entry Operators and Support Staff (Class-IV) have to be made on contract basis on a fixed honorarium mentioned therein. In this regard, a Contract Human Resource Policy 2013-14 was also issued governing the service conditions of the contract employees amongst other rules. The period of contract was made effective from the date of appointment to the end of the financial year i.e. 31st March and that the maximum contractual period would be valid for one year. If the employee is found eligible in the annual performance based evaluation, the contract agreement could be further extended up to the period approved by the NRHM, Madhya Pradesh. However, the employees would not be entitled to regularization. On 25.10.2013, a recruitment notice was issued for appointment of Support Staff through MP Online. Consequently, the writ petitioners and some others were engaged on contract basis after undergoing a selection process. Thereafter, their contract agreements were renewed from time to time.
6. Subsequently, the NRHM was transformed into the National Health Mission (NHM) to provide uninterrupted and equivalent health services to all the States and accordingly, it has been running various programmes at district level SNCU and NRC etc. The NHM, Madhya Pradesh issued an amended Contract Human Resource Manual (Annexure P-7) on 9.2.2017, which was made applicable to all the contractual officers/employees whose payment of honorarium is paid by the NHM.
7. The NHM, Madhya Pradesh also issued an order on 27.7.2017 (Annexure P-8 to the writ petition) addressed to stakeholders of various programmes under the National Health Mission of the State thereby informing them that for the programmes under the NHM for year 2017-18 a lump-sum amount has been provided for continuation of support services mentioned therein. It also issued certain guidelines for continuance of support services inter alia directing that Rogi Kalyan Samiti (Patient Welfare Committee) through its Secretary shall be responsible for the management of support services. That the support services’ employees shall be th
Contractual employees do not have an inherent right to contract renewal; their rights depend on explicit terms. Outsourcing policies are typically non-reviewable by courts.
Termination of outsourced employees merged into APCOS deemed illegal; court directed continuation of services and payment of due salaries.
The main legal point established in the judgment is that a writ petition by an outsourced employee against a private entity is not maintainable.
The central legal point established in the judgment is the determination of the employer-employee relationship under the Minimum Wages Act, 1948, and the liability for payment of wages and overtime.
Contractual employees can be subject to transfer if explicitly stated in their employment contract, limiting rights akin to permanent employees.
The main legal point established in the judgment is the entitlement of temporary employees to wages at the minimum of the pay-scale extended to regular employees holding the same post, based on the p....
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