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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD
B. VIJAYSEN REDDY, J.
Elagurthi Rajender S/o E. Lingaiah – Petitioner
Versus
The State of Telangana – Respondent
Writ Petition Nos. 3276, 3972, 4057 of 2019, 41907 of 2018
Decided On : 07-02-2022
Constitution of India,1950 - Articles 14, 16,21, 41 , 226 , 38, 39, 42, 43 and 43-A - Andhra Pradesh Reorganisation Act, 2014 - Section 17 - Public Service Commission - Recruitment Notification - Posts on outsource basis while considering their candidature to the post of Radiographers - Petitioners are possessing Diploma in Pharmacy registered with Pharmacy Council and are working as Pharmacists Grade-II in Government Hospital viz. M.G.M. Hospital, Warangal District; in Primary Health Centre erstwhile Warangal District, and also Primary Health Centre District, erstwhile District petitioners have completed continuous service respectively - petitioners state that they are possessing Certificate of Radiology Assistant registered with Para-Medical Board and working as Radiographers at RIMS, for more than eight years on outsourcing basis. Notification issued by respondent No. 2 to fill up 35 vacancies of Radiographer posts in the department of respondent No. 2. said posts were notified as zonal posts - scheme of examination is written examination with 150 marks equivalent to 70 points, 20 points equivalent to 20 marks for service weightage and 10 points equivalent to 10 marks for qualification weightage – Held, Court exercising jurisdiction under Article 226 of Constitution of India does not have jurisdiction to issue mandamus to direct the Government to extend benefit of weightage marks to petitioners - If this Court grants relief to the petitioners, it may amount to altering the eligibility criteria and the same is not permissible under law - extended to the outsourced employees is not in any way altering the recruitment notification - No mandatory direction is issued to the Government to do something which is not permissible under law - Court is of view that by applying the rule of reading down the statute, term of “contract employees” mentioned in the recruitment notification shall be also read as “outsourced employees - Petitioners have not challenged the recruitment notification but have only laid a claim that weightage marks should be extended for the services rendered by them. At any rate, as held in several authoritative pronouncements, it should always be the endeavour of the Courts - Writ petitions are allowed.
Based on the provided legal document, the key points are as follows:
The court exercised jurisdiction under Article 226 of the Constitution of India and clarified that it does not have the authority to issue a mandamus to direct the government to extend weightage marks to outsourced employees. Such an action would amount to altering the eligibility criteria, which is not permissible under law (!) (!) .
The court emphasized that the recruitment notification's terms should be read in a manner that includes outsourced employees within the scope of "contract employees," by applying a reading down of the relevant terminology (!) .
The court observed that the mode of employment (contract or outsourced) is the only difference in their mode of appointment, while the nature of duties, qualifications, and remuneration are essentially the same. Both categories perform similar work and are under comparable control, which suggests they should be treated equally regarding service benefits such as weightage marks (!) (!) (!) .
The court noted that the appointments of outsourced employees are made through agencies and not strictly in accordance with the prescribed recruitment rules, but the actual work performed is similar to that of contract employees. Therefore, denying them the same benefits is discriminatory and unjustified (!) (!) .
The government has issued various guidelines and orders that do not explicitly distinguish between contract and outsourced employees in terms of benefits, pay, or regularization, indicating a lack of a clear policy differentiating these categories (!) (!) (!) .
The court highlighted that the employment relationship, the nature of work, and the qualifications of outsourced employees are comparable to those of contract employees, and thus, they should be entitled to similar service benefits, including weightage marks (!) (!) .
The court rejected the argument that granting weightage marks to outsourced employees would violate the recruitment notification or law, clarifying that such an extension is a reading down of the existing provisions to achieve fairness and equality (!) .
The court granted relief by directing the respondents to award weightage marks to outsourced employees for the service rendered, aligning their treatment with that of contract employees, without altering the recruitment notification (!) .
The petitioners were not challenging the recruitment notification itself but were requesting that the benefits applicable to contract employees be extended to outsourced employees based on the principle of equality (!) .
The court also provided liberty for petitioners seeking regularization to file fresh petitions, contingent upon the outcome of the ongoing recruitment process (!) .
In summary, the court recognized the substantive similarity in duties, qualifications, and control over outsourced and contract employees, and accordingly, directed that outsourced employees be given service benefits, including weightage marks, similar to those accorded to contract employees, while clarifying the limits of judicial authority in modifying recruitment criteria.
ORDER :
1. In all these writ petitions, grievance of the petitioners and the issue involved is common, as such, they are being disposed of by this common order.
2. These writ petitions are filed aggrieved by the action of the Telangana State Public Service Commission (for short ‘TSPSC’) in not granting service weightage marks for the services rendered by the petitioners in their respective posts on outsource basis while considering their candidature to the post of Radiographers as per Paragraph-VIII of Recruitment Notification No. 59 of 2017 dated 08.11.2017 (W.P. Nos. 3276 and 4057 of 2019); to the post of Pharmacist Grade-II as per the Notification No. 4/2018 dated 25.01.2018 (W.P. No. 3972 of 2019); to the post of Lab Technician Grade-II as per Notification No. 67 of 2017 dated 18.12.2017 (W.P. No. 41907 of 2018), issued by TSPSC:
3.........
(ii) the petitioners in W.P. No. 3972 of 2019 are possessing Diploma in Pharmacy registered with Pharmacy Council and are working as Pharmacists Grade-II in the Government Hospital viz. M.G.M. Hospital, Warangal, Warangal District; in Primary Health Centre, Komalla, Jangaon District, erstwhile Warangal District, and also Primary Health Centre, Kalmalacheruvu, Suryapet District, erstwhile Nalgonda District the petitioners have completed more than 18 years, 14 years, 12 years, 6 years and 16 years of continuous service respectively.
(iii) the petitioners in W.P. No. 4057 of 2019 are possessing Diploma in Medical and Imaging Technology registered with Para Medical Board and are working as Radiographers/C.T. Scan Technologists in M.G.M. Hospital, Warangal; the petitioners have completed more than 15 years, 13 years and 11 years of continuous service respectively.
(iv) the petitioners in W.P. No. 41907 of 2018 are working continuously as Lab Technician Grade-II in Niloufer Hospital, Red Hills, Lakdikapool, Hyderabad, since 2006, 2009, 2013, 2010 and 2008 respectively.
4. The averments in W.P. No. 3276 of 2019, which is treated as the lead case, are referred to for disposal of these matters.
5. The petitioners state that they are possessing Certificate of Radiology Assistant registered with Para-Medical Board and working as Radiographers at RIMS, Adilabad for more than eight years on outsourcing basis. Notification No. 59/2017 dated 08.11.2017 was issued by respondent No. 2 to fill up 35 vacancies of Radiographer posts in the department of respondent No. 2. The said posts were notified as zonal posts:
(b) The qualifying points in the written examination for the Other Castes (OCs) is 40% of 70 points i.e. 28 points, for the Backward Classes (BCs) 35% of 70 points i.e. 24.5 points and for Scheduled Castes (SCs), Scheduled Tribes (STs) and Physically Handicapped (PHs) is 30% of 70 points i.e. 21 points. The service weightage and qualification weightage are awarded in marks as per eligibility and entitlement in
Alterations to recruitment criteria must adhere to established legal precedents, not infringe upon fair selection principles.
Court affirmed the entitlement to service weightage points for contractual employment, invalidating the outsourcing classification that affected selection.
The main legal point established in the judgment is that a writ petition by an outsourced employee against a private entity is not maintainable.
Outsourced employees discharging duties for the Government are entitled to the benefit of contractual appointment as per the resolution dated 17.09.2013, despite being paid through outsourcing agenci....
Petitioners are entitled for minimum time scale of pay and they are bound to serve during regular office hours of an employee on par with regular employees of the same cadre. Therefore, the petitione....
The main legal point established in the judgment is that the engagement of workers through outsourcing agencies must comply with the law laid down in relevant cases and statutory provisions. The cour....
Contractual employees are entitled to weightage in recruitment processes only if appointed through lawful means, adhering to Articles 14 and 16 of the Constitution.
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