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1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF NOVEMBER, 2015 PRESENT THE HON' BLE MR. JUSTICE MOHAN M. SHANTANAGOUDAR AND THE HON' BLE MR. JUSTICE B. VEERAPPA WRIT PETITION Nos.46359-46367/2015 (S-CAT)
BETWEEN:
CHANDRAYYA PUJERI, S/O PARAVAYYA PUJERI, AGED ABOUT 36 YEARS, WORKING AS WIREMAN, O/O THE CPWD QUARTERS, HSR LAYOUT, BANGLAORE, RESIDENT OF NO.11/3, 24TH MAIN, 25TH A CROSS, PARANGIPALAYA, HSR LAYOUT, SECTOR-2, BANGALORE.
K.H. GUNDAIAH, S/O CHALLAIAH, AGED ABOUT 33 YEARS, WORKING AS WIREMAN, O/O. THE BCED I/BCESD IV, GENERAL POOL OFFICE ACCOMMODATION, CPWD, KENDRIYA SADAN, KORAMANGALA II BLOCK, BANGLORE-560 034. RESIDING AT C/O. LOKAIAH MOLLYA, NO.M-4, BLOCK NO.34, CPWD QUARTERS, 2ND BLOCK, KORAMANGALA, BANGALORE-560 034.
2 3. SHRISHAIL PUJERI, S/O PARAVAYYA PUJERI, AGED ABOUT 37 YEARS, WORKING AS WIREMAN, O/O THE CPWD QUARTERS, HSR LAYOUT, BANGALORE. RESIDENT OF NO.11/3, 24TH MAIN, 25TH A CROSS, PARANGIPALAYA HSR LAYOUT, SECTOR-2, BANGALORE.
T. SOMA SUNDARAM, S/O K. THANIKACHALAM, AGED ABOUT 51 YEARS, WORKING AS WIREMAN, O/O. THE BCESD II/BCESD III, CR BUILDING, QUEEN’S ROAD, BANGALORE. RESIDNET OF NO.64, 1ST B MAIN, 1ST BLOCK, JAKKASANDRA EXTENSION, KORAMANGALA, BANGALORE-560 034.
MOHAMMED FAQRUDDIN, S/O ABDUL GAFFAR SAB, AGED ABOUT 30 YEARS, WORKING AS WIREMAN, O/O THE INCOME TAX OFFICE, CR BUILDING, QUEENS ROAD, BANGALORE. RESIDING AT C/O M. AHMED SHARIFF, NO.25/1, NEAR GOVERNMENT URDU SCHOOL, MANGAMMANA PALYA, BOMMANAHALLY, BANGALORE-560 068.
G. P. HANUMANTHARAYAPPA, S/O PUTTA HANUMAIAH, AGED ABOUT 36 YEARS, WORKING AS WIREMAN, O/O THE BCED I/ BCESD IV,
3 GENERAL POOL OFFICE ACCOMMODATION, CPWD, KENDRIYA SADAN, KORAMANGALA II BLOCK, BANGALORE-560034. RESIDENT OF NO. 115/6, 13TH CROSS, VENKATAPURA LAYOUT, KORAMANGALA, BANGALORE-560034.
G. HARISH KUMAR, S/O B. GAJAPATHY, AGED ABOUT 26 YEARS, WORKING AS ELECTRICAL KHALASIS, O/O BCED I/BCESD IV, GPRA, CPWD, KENDRIYA SADAN, KORAMANGALA II BLOCK, BANGALORE-560 034. RESIDENT OF DOOR NO. M3, BLOCK NO. 34, CPWD QUARTERS, KORAMANGALA, BANGALORE-560034.
RAVI KUMAR C.M, S/O MAHADEVA SWAMY C.S, AGED ABOUT 24 YEARS, WORKING AS ELECTRICAL KHALASIS, O/O THE CENTRAL INSTITUTE OF INDIAN LANGUAGES, MANASAGANGOTRI, HUNSUR, MYSORE-570 006. RESIDENT OF DOODAKAVALANDE HOBALI, NANJUNGUDU TALUK, CHIKKAKOWLANDE, MYSORE DISTRICT-571 312.
RAVI KUMAR, S/O RAMAPPA, AGED ABOUT 23 YEARS, WORKING AS ELECTRICAL KHALASIS, O/O BCED I/ BCESD IV, GENERAL POOL OFFICE ACCOMMODATION, CPWD, KENDRIYA SADAN, KORAMANGALA II BLOCK,
4 BANGALORE-560034. PERMANENT RESIDENT OF SOMALAPURA VILLAGE, GUDIBANDE TALUK, CHIKKABALAPURA DISTRICT – 561209. … PETITIONERS
(BY SRI AMARESH N., ADVOCATE)
AND:
THE DIRECTORATE GENERAL WORKS, CPWD, 101 "A" NIRMAN BHAVAN, NEW DELHI-110 011.
THE ASSISTANT DIRECTOR GENERAL (SR-II), CPWD, "B" WING, KENDRIYA SADAN, KORAMANGALA, BANGALORE-560 034.
THE ADDITIONAL DIRECTOR GENERAL (SR-I), 1ST FLOOR "G" WING, 3RD AVENUE, KENDRIYA SADAN, KORAMANGALA, BANGALORE-560 034.
THE CHIEF ENGINEER (SOUTH ZONE-III), CPWD, "D" WING, 6TH FLOOR, KENDRIYA SADAN, KORAMANGALA, BANGALORE-560 034.
THE CHIEF ENGINEER (ELECTRICAL), CPWD, 3RD FLOOR, "G" WING, RAJAJI BHAVAN, CHENNAI-600 090.
THE SUPERINTENDING ENGINEER (ELECTRICAL), CPWD, 4TH FLOOR "E" WING, KENDRIYA SADAN, KORAMANGALA, BANGALORE-560 034.
5 7. THE SUPERINTENDING ENGINEER (ELECTRICAL), HYDERABAD CENTRAL ELECTRICAL CIRCLE, CPWD, 3RD FLOOR, NIRMAN BHAVAN, SULTAN BAZAAR, HYDERABAD-500 095.
THE SUPERINTENDING ENGINEER (ELECTRICAL), CHENNAI CENTRAL ELECTRICAL CIRCLE I, NO.26, HADDOWS ROAD, SHASTRI BHAVAN, CHENNAI-600 006.
THE EXECUTIVE ENGINEER (ELECTRICAL), BANGALORE CENTRAL ELECTRICAL DIVISION-I, CPWD, "C" WING, KENDRIYA SADAN, BANGALORE-560 034.
THE EXECUTIVE ENGINEER (ELECTRICAL), BANGALORE CENTRAL ELECTRICAL DIVISION-II, CPWD, "F" WING, GROUND FLOOR, KENDRIYA SADAN, BANGALORE-560 034.
THE UNION OF INDIA, REP. BY ITS SECRETARY, MINISTRY OF URBAN DEVELOPMENT WORKS DIVISION, NIRMAN BHAVAN, NEW DELHI-110 011. ... RESPONDENTS
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THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 5.10.2015 PASSED BY THE CENTRAL ADMINISTRATIVE TRIBUNAL BANGALORE BENCH IN O.A. NO. 1026 TO 34/2013 AVAILABLE AS AT ANNEXURE – A.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING THIS DAY, B. VEERAPPA, J., MADE THE FOLLOWING:
6 ORDER
The above writ petitions are filed by the petitioners/original applicants against the order dated 5.10.2015 passed in O.A.Nos.1026-1034/2013 on the file of Central Administrative Tribunal, Bangalore Bench, Bangalore, (for short ‘the CAT’) dismissing the applications filed by the petitioners with an observation that, anyone including the applicants were free to apply for the same in pursuance of the notification issued by the respondents inviting application to fill up various posts; but the applicants cannot claim any special treatment or relaxation of prescribed eligibility conditions on the ground that they are working for the department in the maintenance work though engaged by the outsourcing agency.
All the petitioners claim, that they are employed as Wireman - Electrical Khalasis under various agencies; are entrusted with the maintenance work of the Central
7 Government Departments and Autonomous Bodies, so as to take care of the maintenance of building as well as construction, which is inclusive of Civil as well as Electrical Work; the applicants are qualified in all aspects to carry out Electrical Works and their services are required to be regularized The respondents-authority have called for applications to fill up the back log and current vacancies of Scheduled Castes, Scheduled Tribes & Other Backward Class under various offices located in Southern Regions, Central Public Works Department, vide notification 3.8.2013 published on 23.8.2013. In pursuance of the said notification, the applicants submitted their applications. As far as, the 1st and 3 applicants are concerned, they have been informed by the respondents-authority that they, cannot accede to their request of age relaxation for the post of Wireman or Electrician in terms of the letter dated 2.9.2013; without considering the applications of the petitioners,
8 respondents processed other applications to fill up the posts of Operator Electrical & Maintenance and Electrical Khalasis in the open market. Therefore, the petitioners herein filed applications before the CAT for a direction to the respondents to consider the case of the applicants for the post of Wireman/Operator Electrical & Maintenance / Electrical Khalasis or any other appropriate post etc.
The respondents filed objections to the applications and contended that the applicants employed by the Contractor are performing their duties assigned to them by the Contractor and the continuance of the applicants in the maintenance work is totally prerogative of contractor. There was no provision in the contract for regularization of services of the workers engaged by the agency and there is no contract between labourers and the respondents involved in the present case. The maintenance
9 contracts were given to agencies from time to time by calling tenders for various Government colonies and office complexes for providing service of manpower and material. There is no violation of the notification issued by the respondents and the remedy sought for by the applicants cannot be given by the Department. The Notification is issued by the respondents as per recruitment rules and guidelines of the Department. The applicants are not entitled to any relief as they have not fulfilled the eligibility criteria prescribed in the notification for recruitment to various cadres. Therefore the respondents sought for dismissal of the applications.
After considering the entire material on record, the CAT dismissed the applications observing that the applicants have to be treated on par with all other applicants, who have applied, in response to the notification calling applications and there is nothing
10 wrong on the part of the respondents in denying them any relaxation in the eligibility criteria. Against the said order, the present writ petitions are filed.
We have heard the learned counsel for the petitioners.
Sri Amaresh N. learned counsel for the petitioners vehemently contended that CAT has not properly considered the case of the petitioners that the petitioners, who are working against the post of Wireman/ Operators / Electrical Khalasis for the past several years are entitled to regularization/age relaxation in view of the dictum of Apex Court in the case of NINJAMMA Vs. UNION of INDIA in Writ Appeal Nos.2571 and 2597/2005 dated 23.5.2012; that the services of the petitioners are utilized round the clock by the outsourcing agencies and the work is assigned to the applicants by the respondent government, i.e., the work of maintenance of all Central Government
11 Buildings. On these grounds he sought to set aside the order passed by the CAT.
We have given our thoughtful consideration to the arguments advanced by the learned counsel for the petitioners and perused the entire material on record.
In view of the rival pleadings, and the arguments advanced by the learned counsel for the petitioners, the issue that arises for consideration is: “Whether the employee of the outsourcing agency can claim to be the worker directly appointed by the respondents – organisation who engaged the outsourcing agency under a specific contract akin to the casual labourer engaged by the Government Department”.
It is not in dispute that the petitioners have been working as Wireman/Electrical Khalasis under an outsourcing agency. The respondents have no control
12 over the work assigned to the petitioners and all the petitioners are engaged directly by the contractor as per the convenience of the contractor. The outsourcing agency as and when required can even be discharged by the agency, since the petitioners are their employees and there is no provision in the contract for regularization of service of workers engaged by the agency. The contract for maintenance is for one financial year or less and the notification issued for filling up Backlog and current vacancies of SC/ST and OBC is against direct recruitment quota only. In response to the said advertisement, the petitioner Nos.1, 2, 5 and 6 submitted the applications for the post of wireman, while the others have not applied for the same. The applications so filed were rejected as they were not found eligible as per the prescribed eligibility criteria.
13 9. The Tribunal considering the entire material on record has recorded a finding that it is an admitted fact that the applicants are employees of different agencies who have been outsourced for the maintenance work assigned by the respondents based on tender invited by them. The said agencies have deployed the applicants for the maintenance work of the respondents. The applicants get their salaries from the agencies who have deployed them. It is also seen that the applicant No.8 was earlier engaged by the outsourcing agency but is now engaged by another outsourcing agency though he claims to be engaged in the maintenance work of the respondents on both the occasions. As pleaded by the respondents, the outsourcing contractors are engaged for a specified period as per the terms and conditions of the tender. It is open to the outsourcing agency to deploy any person to carry out the task in terms of the contract. The outsourcing agency is free to deploy any person for the specified work, since he is the employer
14 of the said person. The same is evident from the case of the applicant No.8 who was initially deployed by M/s. Santhosh Electricals, but has subsequently joined M/s. Nava Jyothi Electricals. The applicants get their salaries from the outsourcing agencies and not from the respondents directly. Therefore, it cannot be held that there is a direct relationship between the applicant and respondents organization. The applicants cannot claim to be on the same footing as that of the casual workers engaged by the department and they cannot claim to be direct employees of the respondents. The dictum of the Apex Court in the case of NINJAMMA V UNION OF INDIA relied upon by the learned counsel for petitioner, has no application for the facts and circumstances for the present case.
Admittedly in the present case, the respondents- authorities have invited applications for filling up certain categories of posts, but the applicants cannot
15 claim age relaxation/eligibility criteria on the ground that they are working in the Department for the maintenance work, though the applicants are engaged by the outsourcing agency. The applicants shall be treated on par with the applicants, who applied in response to the notification calling for the applications and there is nothing wrong on the part of the respondents in denying them any relaxation in the eligibility criteria. Admittedly, the petitioners have not produced any material document to prove that they are appointed and working directly under the respondents- authority. In the absence of the same, they cannot maintain the applications for the relief sought for. The relief sought for by the applicants is nothing but back door entry, which is impermissible in law.
Therefore, the issue is held in affirmative holding that the employee of the outsourcing agency cannot claim as direct worker of the respondent’s organization.
16 The notification is issued by the respondents for selection of Wireman vacancies by direct recruitment and the same is in accordance with law and in accordance with the guidelines of Ministry of Urban Development and Employment, Central Government. The petitioners have not made out any case, so as to interfere with the findings of fact recorded by the Central Administrative Tribunal in exercise of power under Articles 226 and 227 of the Constitution of India.
Accordingly the writ petitions are dismissed.
Sd/-
JUDGE
Sd/-
JUDGE
NG*