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Judgment
Namit Kumar, J.
Instant petition has been filed under Article 226 of the Constitution of India, seeking a writ of certiorari for quashing the order dated 12.10.2016 (Annexure P-5), vide which the services of the petitioners as Patwari on contractual basis (outsourced by respondent No.3), have been dispensed with by respondent No.2. Further, a writ of mandamus has been sought directing respondents No.1 and 2 to consider the case of the petitioners for conversion into contractual employees in the light of the Government decision dated 10.11.2016 (Annexure P-4) and to restrain the respondents from replacing the petitioners by any other set of contractual/ad hoc/outsourced/temporary patwaris, during the pendency of the writ petition.
Brief facts of the case, as have been pleaded in the petition, are that the petitioners were engaged by respondents No.1 and 2 as Patwaris on outsourced basis through respondent No.3 – outsourcing agency. The petitioners had been working as Patwaris in the Regulatory Branch of GMADA since 18.04.2013 and had completed more than three years of continuous service as outsourced employees. On 25.10.2016, the Cabinet of Ministers of the Punjab Government took a decision to convert the outsourced employees, who had completed three years of service on outsourcing basis into contractual employees and in pursuance to the said decision, a circular letter dated 10.11.2016 (Annexure P-4) had also been issued by Government of Punjab. However, respondent No.2, vide order dated 12.10.2016 (Annexure P-5), dispensed with the services of the petitioners. Hence, the present writ petition.
Respondents No.1 and 2 have filed their reply, stating therein that the petitioners were never in the direct employment of GMADA, as they had never been recruited by GMADA, either temporarily, permanently or on a contractual basis and when the consultant withdrew the staff, including present petitioners, their services were dispensed with on 12.10.2016. It is further stated that the decision dated 10.11.2016, whereby the outsourced employees who had been working continuously for more than three years were to be converted into contractual employees, is not applicable to the petitioners, as the services of the petitioners had already been dispensed with prior to the said decision.
The case was called twice, however, no one had put in appearance on behalf of the petitioners.
Learned Senior Counsel appearing for respondents No.1 and 2 has opposed the claim of the petitioners by submitting that the petitioners were engaged through respondent No.3 – contractor and were never recruited by them directly, either permanently, temporarily or on contractual basis. When respondent No.3 withdrew its staff from respondents No.1 and 2, the services of the petitioners were dispensed with on 12.10.2016. He further submits that decision of the Government dated 10.11.2016 is not applicable to the case of the petitioners.
I have heard learned Senior counsel for respondents No.1 and 2 and perused the record.
It is an admitted fact that the petitioners were engaged by respondents No.1 and 2 through respondent No.3 – contractor. There is no material on record to establish that the petitioners were appointed against any sanctioned post under GMADA or that any employer-employee relationship existed between the petitioners and GMADA. The mere fact that the petitioners performed duties in the office of GMADA or under the supervision of its officers does not, by itself, create an employer-employee relationship between the petitioners and GMADA.
A Division Bench of this Court in Nishan Singh and others Vs. State of Punjab and others : 2014 (11) RCR (Civil) 262 has held that the service provider, who has selected the candidates for work in the government department, is not an agency of the State. The appellants therein were neither selected under any service rules applicable to regular employees of the State of Punjab nor did they apply under any advertisement for their appointment as contractual or regular employees of the state. It was further held that the acceptance of the claim of the appellants therein for continuation of services would amount to a back door entry to public employment in total disregard to the mandate of Articles 14 and 16 of the Constitution of India.
In the case of Anmol Garg and another Vs. State of Punjab and others, bearing CWP No. 29655 of 2018, decided on 28.11.2018, a Coordinate Bench of this Court dismissed the writ petition preferred by an employee engaged through an outsourcing agency, which order was upheld by a Division Bench in LPA No. 1910 of 2018, decided on 10.12.2018 and the operative part thereof is reproduced hereunder:-
“Learned Single Judge finding that the appellant was an employee of outsourcing agency which was having a license under the contract to supply manpower held there was no privity of contract between the appellant and the employer and she was not even a contractual employee. The principle being canvassed before us applies only in case there is a privity of contract between the employee and the employer. In the case in hand, the appellant was an employee of the service provider. The benefit of the said principle is not liable to be extended to her and, thus, we do not find any illegality committed by learned Single Judge in dismissing the writ petition.”
Reference can also be made to the orders of the Coordinate Benches of this Court passed in the cases of 'Vikash versus The State of Haryana and others' bearing CWP No.19762 of 2018, decided on 11.12.2019, 'Kailash Chand and others versus Urban Local Bodies Department, Haryana and others', bearing CWP No.21345 of 2021, decided on 18.01.2022 and 'Naresh Kumar and others versus Haryana State Warehousing Corporation and others', bearing CWP No.17454 of 2020, decided on 02.12.2020, wherein similar petitions of outsourcing employees were also dismissed as there was no privity of contract between them and their principal employer.
The Court cannot convert an outsourced engagement into direct contractual employment merely on the ground that the petitioners have rendered services for a particular period. Length of service, by itself, does not confer a right to regular appointment or direct contractual appointment. Nor can the Court create a mode of recruitment which is not contemplated by the applicable service rules or the governing administrative policy. The petitioners have no legal right to claim conversion of their outsourced services in contractual services with respondents No.1 and 2. Thereby in the absence of any legal or factual basis, the relief of conversion to direct contractual employees cannot be granted to the petitioners. Furthermore, the decision of the Government dated 10.11.2016 to convert the services of outsourced employees working continuously for the last more than three years is not applicable to the petitioners as their services were dispensed with before this decision on 12.10.2016. In substance, the petitioners seek a direction requiring respondents No.1 and 2 to absorb them or engage them directly on contract. It is equally well-settled that an employee appointed through an irregular or non-prescribed mode cannot claim regularisation merely because he has continued for a long period. The constitutional scheme governing public employment does not permit appointment through the back door. Any direction for direct appointment of the petitioner, without requiring him to compete with other eligible candidates, would itself offend the rights of other eligible persons under Articles 14 and 16 of the Constitution.
The petitioners have not been able to establish that the impugned action is mala fide, contrary to any statutory provision, or violates any enforceable right vested in them. No material has been placed before this Court which would warrant interference with the decision of the respondents in exercise of extraordinary writ jurisdiction.
In view of the above, I do not find any merit in this petition. Consequently, the present writ petition is dismissed with no order as to costs.