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Judgment
Sudhir Agarwal, J.—The Bench Secretary has placed before me a copy of the letter dated 22.8.2013 of the High Court Bar Association, Allahabad addressed to Hon''ble the Chief Justice informing that the Association has resolved on 22.8.2013 to abstain from judicial work on 23.8.2013 and the Hon''ble Judges are requested not to pass any adverse order on 23.8.2013, which has been circulated under the order of Hon''ble Senior Judge dated 22.8.2013 to this Bench. This case has been called in revised, but no counsel appeared on behalf of petitioner. However, Sri Rahul Dubey, Petitioner No. 2, himself appeared in person and requested that he may be permitted to argue the case in person on behalf of himself and for all other petitioners. Permission is granted.
I have heard the Petitioner No. 2, in person, for all the petitioners and learned Standing Counsel for the respondents.
The Respondent No. 2 proceeded for recruitment of Cooks and Sweepers against four existing vacancies of Cooks and two of Sweepers by publishing an advertisement dated 07.05.2010 in daily newspaper "Dainik Jagran". It clearly mentioned that selection shall be made in accordance with U.P. Police Group ''D'' Employees Service Rules, 2009 (hereinafter referred to as the "Rules, 2009"). The petitioners applied in the aforesaid selection for which a written test as well as interview was held and final result was declared on 2.8.2010, published in daily newspaper "Aaj", in which all the petitioners were declared successful. The Respondent No. 2 also issued a letter dated 9.8.2010 addressed to Petitioner No. 5 informing that has been finally selected in the aforesaid recruitment and he should appear in the office of Superintendent of Police, Ramabai Nagar alongwith original certificates and photographs for further action. However, thereafter, when no appointment letters were issued to petitioners, they made representation and then came to this Court in the present writ petition seeking a writ of mandamus directing respondents to issue appointment to them in view of their selection to Class IV posts.
A counter affidavit has been filed by respondents, sworn by Sri Sarvesh Kumar Mishra, Circle Officer Bhognipur, District Ramabai Nagar, wherein all other facts have been admitted but reason for not issuing appointment letters to petitioners has been given by referring to Government Order dated 8.9.2010 which provides that on Class IV posts, no appointment shall be made and the work shall be got done through "Outsourcing". It is said that in view of aforesaid Government Order dated 8.9.2010 (Annexure CA1 to the counter affidavit), the appointment letters were not issued to petitioners since appointment on Class IV posts have been stopped by State Government.
The only question is, "whether appointment on Class IV posts, governed by statutory rules, can validly be prohibited by Government Order dated 8.9.2010".
It appears that aforesaid Government Order has been issued pursuant to recommendations of 6th Pay Commission accepted by the State Government.
Chapter 2.2 para 2.2.9 of 6th Central Pay Commission Report Vol. 1 provides that a separate running Pay Band, designated as 1S scale is being recognized for posts belonging to Group-D. However, the same shall not be counted for any purpose as no future recruitment is to be made in this grade. All the present employees belonging to Group-D, who possess prescribed qualification, for entry level in Group-C, will be placed in Group-C Running Pay Band straightway w.e.f. 01.1.2006. Other Group-D employees who do not possess qualification are to be retrained and thereafter be upgraded and placed in Group-C Running Pay Band. Till such time they are retrained and redeployed, they will be placed in 1S scale. The Pay Commission has said that 1S scale is not a regular or permanent pay scale and for the existing employees it shall operate only till the time, existing Group-D staff is placed in Group-C Running Pay Band. The mechanism for placing Group-D staff in revised Group-C Running Pay Band has been discussed in detail in Chapter 3.7 relating to Group-D staff. Group-D employees who are not placed in Group-C Pay Band straightway will be given the band after retraining, without any loss of seniority, vis-a-vis those in Group-D, who possessed higher qualification, redeployed and were placed in Group-C Running Pay Band w.e.f. 1.1.2006. It also refers to para 2.2.2010 of 6th Pay Commission Report providing that so far as future recruitment is concerned, no direct recruitment in 1S scale will take place and this scale will be operated for regulating emoluments during training period of candidates who do not possess the minimum qualification of matric. The Commission expressed its view that candidates not possessing minimum qualification of matric and/or ITI cannot be recruited in Government as all jobs in Government requires same level of skill.
Since 6th Pay Commission Recommendations were implemented by State Government in respect to its employees also, a policy decision was taken regarding pay revision. The State Government issued G.O. No. Ve.Aa. 22052/Dus59(M)/2008 dated 8.9.2010 applicable to various departments of State Government providing therein that no recruitment in future on Class IV posts (except the lowest cadre of technical post) shall be made and future vacancies in Class IV shall be managed by "outsourcing". The aforesaid G.O. was clarified by subsequent G.O. No. Ve.Aa. 23226/Dus59(M)/2008 dated 04.1.2011 that restriction against future recruitment in Class IV posts shall not be applicable for compassionate appointments. It was further clarified by another G.O. No. Ve.Aa. 226/Dus59(M)/2008 dated 6.1.2011 issued to various departments of Government stating that benefit of revised pay and Grade Band would be notionally applicable from 1.1.2006 and actual benefit/payment shall be admissible w.e.f. 8.9.2010. In respect to educational institutions aided by State Government similar G.O. No. Ve.Aa. 227/Dus59(M)/2008, dated 6.1.2011 was issued and in furtherance thereof the impugned G.O. dated 6.1.2011 has also been issued. By another G.O. No. 4/1/2008Ka2/2008 it was also clarified by Government that in outsourcing, provision of reservation shall also be observed strictly.
It is said that the G.O. dated 8.9.2010 having been issued in furtherance of acceptance of 6th Pay Commission, the recommendations whereof have been accepted by Government, it is not open to petitioners to challenge the same partly while retaining benefit of recommendations of 6th Pay Commission in all other aspects.
So far as recommendations relating to Pay Revision as made by 6th Pay Commission and accepted by Government that is a different matter since it is not the case of respondents that Pay Commission had the jurisdiction to deal with matter of recruitment and appointment of employees and officers of Government. In my view, it would not be necessary for this Court to look into this aspect further for the reason that validity of Para 2 of G.O. dated 8.9.2010 has to be considered in the light of statutory provisions of Police Act, 1861 (hereinafter referred to as the "Act, 1861"), the Rules, 2009 and also the Constitutional provision, i.e., Articles 14, 16 and 19.
Before coming to other aspects of the matter, the Court finds it prudent to examine meaning of the term "Outsourcing". It is neither a technical term nor a term of art. I also could not find its origin in the ancient times since it appears to have gain momentum in recent past, i.e., with the advancement of managerial policies in the field of information technology etc. It is only when the scope, extent, purpose and objective of "Outsourcing" would be clear, it would be more convenient to examine the correctness of Para 2 of G.O. in the light of statutory provisions as referred to hereinabove and other relevant provisions which this Court shall discuss a bit later.
When this Court enquired from the learned Standing Counsel as to what the Government mean by asking its various departmental heads etc. to go for "Outsourcing" instead of making recruitment of Class IV posts, he simply replied that they shall not recruit any Class IV employee on their own but may have their work done, meant to be performed by Class IV employees, by employing persons from labour suppliers or the organizations engaged in the work of "Outsourcing". He was immediately confronted, whether it amounts to a contract labour supply to which he said that exactly that is not the purpose but to some extent there may be some similarity.
What is Outsourcing
When this Court proceed to consider the meaning and ambit of the term "Outsourcing"; immediate questions arise (a) what is outsourcing; (b) what can be outsourced; (c) where one can find outsourcing resources; and, (d) is it a uni-kind of system or multiple kind.
The term "outsourcing" is not a very commonly recognized term in Dictionaries but some recent and revised editions contain this term and define it.
The "Concise Oxford English Dictionary Indian Edition" (11th Edition Revised) (2008) published by Oxford University Press, New Delhi at page 1017 defines the term "outsourcing" as under:
Outsourcing obtain by contract from an outside supplier.
"Wikipedia" describes the term "outsourcing" as "the process of contracting a business function to someone else". In the commercial world, particularly among the managerial class, the term "Outsourcing" is known in various ways. According to some "Outsourcing" is any task, operation, job or process that can be performed by employees of company, but is instead, contracted to a third party for a significant period of time. Hiring a temporary employee when a regular employee in an institution is on leave is not "Outsourcing". According to some others, "Outsourcing" is contracting with other company or persons to do a particular function. Normally outsourcing is resorted to such functions which are considered "noncore to the business". Another definition or meaning of "Outsourcing" is that it is simply farming out of services to a third party. The central idea, therefore, discerned from above is, that, "Outsourcing" is the process of contracting a function to someone else. Its opposite is "Insourcing".
"Insourcing" has been identified as a mean to ensure, control, compliance and to gain competitive differentiation through vertical integration or the development of shared services. "Insourcing" is also called as vertical integration.
"Outsourcing" is considered to be something more than purchasing and more than consulting. It is a long term results oriented relationship for a whole activity, normally commercial, over which the Provider has a large amount of control and managerial discretion. "Outsourcing" is the use of outside business relationship to perform necessary business activities and processes in lieu of internal capabilities. The most common forms of outsourcing presently known are "Information Technology Outsourcing" (ITO), "Business Process Outsourcing" (BPO) and Knowledge Process Outsourcing" (KPO). Business Process Outsourcing encompasses, Call Center Outsourcing, Human Resources Outsourcing, Finance and Accounting Outsourcing and Claims Processing Outsourcing.
The organizations want to seek "Outsourcing", normally take into account the issues like cost savings, focus on core business, cost restructuring, improvement of quality, access and availability of better knowledge and experience, operational expertise, access to talent, capacity management, catalyst for change, enhancement for capacity of innovation, reduction of time in production of a product for supply to the market, Commodification, Risk Management, Tax Benefit, Venture Capital, Scalability, Creating Leisure Time, Reducing Liability, Revenue etc.
"Outsourcing", therefore, is the use of outside business relationship to perform necessary business activities and processes in lieu of internal capabilities. Those who provide "Outsourcing" facilities are called Outsourcing Partners, Outsourcing Suppliers and Providers. Those who go to purchase outsourcing services are called "Buyers" and "Users" in common parlance. The key to the definition of "Outsourcing" is the aspect of transfer of control. In Outsourcing, the Buyer normally does not instruct Supplier how to perform its task but, instead, focuses on communicating what results it want to buy. It leaves the process of accomplishing those results to supplier.
There are different kinds of outsourcing, namely, Tactical Outsourcing, Strategic Outsourcing, Transformational Outsourcing etc.
Though the term "outsourcing" as such has not been considered in detail by Courts but its purport and object can be discerned in the context the same has been referred to in certain decisions.
In Common Cause (A Regd. Society) Vs. Union of India (UOI) and Others, the Apex Court considered a situation where a committee is appointed by a Court but with a further authority to issue orders to authorities or to public. Deprecating this practice in para 36 of the judgment, the Court said:
We would also like to advert to orders by some Courts appointing committees giving these committees power to issue orders to the authorities or to the public. This is wholly unconstitutional. The power to issue a mandamus or injunction is only with the Court. The Court cannot abdicate its function by handing over its powers under the Constitution or the C.P.C. or Cr.P.C. to a person or committee appointed by it. Such ''outsourcing'' of judicial Junctions is not only illegal and unconstitutional, it is also giving rise to adverse public comment due to the alleged despotic behavior of these committees and some other allegations. A committee can be appointed by the Court to gather some information and/or give some suggestions to the Court on a matter pending before it, but the Court cannot arm such a committee to issue orders which only a Court can do.
(emphasis supplied)
The above discussion clearly suggest and demonstrate that outsourcing does contemplate performance of job or function or work by a body outside the buyer or purchaser and the service provided himself perform the job through its own agencies and it cannot be equated with the supply of labour or employees by a third party. The two connote different situations, functions and idea. They are not same and identical. In the system of labour supplier there is an introduction of middleman who make the workers available as a commodity without creating any employer and employee relationship with principle employer and the contract labour but outsourcing as such is not the involvement of a middleman for arranging the labour force but it is the system where a particular kind of job or performance itself is performed by third party, i.e., the service provided through his own man and it is the own result which is made available to purchaser or buyer.
Regarding the merits and demerits of "outsourcing" there are different views but this Court is not required to go therein since the discussion about "Outsourcing" made above was only in furtherance to understand what the G.O. intend to do, in effect, and, whether in view of relevant provisions of statute, it is permissible to do so.
Relevant Statutes
The provisions relating to recruitment and conditions of service in State Government are to be governed by those referable to Article 309 of the Constitution read with relevant entries in List-2, Schedule VII of the Constitution. In respect to Police, it is Entry-2. There are two enactments regarding Police, concerned with this matter. One for General Police Force, i.e., Act, 1861, a preconstitutional enactment, and in respect to Fire Services, it is U.P. Fire Service Act, 1944 (hereinafter referred to as the "Act, 1944), which is also a preconstitutional enactment. It is not in dispute that for Group-D employees in General Police Force, Rules, 2009 have been framed in exercise of power under Rule 46 of Act, 1861. It includes the posts in question in the cadre of service vide Rule 4. The source of recruitment is provided in Rule 5. For the post in question, the only source of recruitment provided is ''direct''. The procedure for recruitment is given in Part-5 and the only provision giving power of relaxation to the State Government is Rule 30, which permits State Government to relax any rule, regulating "conditions of service", to a persons, appointed to the establishment, if it causes undue hardship in any particular case and not otherwise. No power has been conferred upon the State Government to do away any rule pertaining to matter of recruitment.
Here in the case in hand the Government Order dated 8.9.2010, in the garb of revising pay scale, is cutting down the very system of recruitment in Class-IV posts, in its entirety by, saying that now the recruitment shall not be made in regular manner but the authorities shall proceed to get the work done against Class-IV posts, by resorting to ''Outsourcing''.
This para 2 of Government Order dated 8.9.2010 is bad for two reasons.
Firstly, under Rules, 2009 the State Government has no power to interfere with the rules relating to recruitment and, therefore, the impugned Government order is ultra vires. There is distinction between the term "recruitment" and "conditions of service".
The term "conditions of service" is not wide enough to include every stage commencing from recruitment or appointment and thereafter. There is a distinction between the term "recruitment" and "conditions of service". It is worthwhile to mention that in Article 309 of the Constitution both these terms have been used in respect to Legislative power and in that context have been considered by Courts.
In service jurisprudence three terms are of wide application, have a definite concept and well known to those who deal in the subject. This is called "common parlance". These three terms are "recruitment", "appointment" and "conditions of service".
The meaning of term "recruitment" and its distinction vis-a-vis "appointment" came to be considered in Prafulla Kumar Swain Vs. Prakash Chandra Misra and Others, and the Court said that the term "recruitment" connotes and signifies enlistment, acceptance, selection or approval for appointment. Certainly, this is not actual appointment or posting in service. In contradiction thereto the word "appointment" means the actual act of posting a person to a particular office. Similarly, in K. Narayanan and others Vs. State of Karnataka and others, the Court said that "recruitment" according to dictionary meaning "enlistment". It is a comprehensive term and includes any method provided for inducting a person in public service. However, in the context of the case the Court proceeded to observe that appointment, selection, promotion, deputation are well known methods of recruitment and even appointment can be made by transfer.
The term "conditions of service" is also no more res Integra having been considered and defined by Courts time and again.
One of the earliest known case considering the term "conditions of service" is North West Frontier Province v. Suraj Narain Anand, Vol. LXXV Indian Appeals 343. Therein Privy Council considered the term "conditions of service" as mentioned in Section 243 of Government of India Act, 1935. It says that the term "conditions of service" must mean all the conditions on which a man serves and they must include inter alia the tenure of his service, the method by which he may be dismissed or reduced in rank etc.
In State of Madhya Pradesh and Others Vs. Shardul Singh, the Court explain the expression "conditions of service" as under:
The expression "conditions of service" is an expression of wide import. It means all those conditions which regulate the holding of a post by a person right from the time of his appointment till his retirement and even beyond it in matters like pension etc.
In I.N. Subba Reddy Vs. Andhra University and Others, the Court explain the term as under:
The expression ''conditions of service'' means all those conditions which regulate the holding of a post by a person right from the time of his appointment till his retirement and even beyond it, in matters like pension etc.
Same view was taken in para 6 of the judgment in Mysore State Road Transport Corporation Vs. Mirja Khasim Ali Beg and Another, .
In Lily Kurian Vs. Sr. Lewina and Others, in para 13 of the judgment, the Court referred to above decisions and observed that the expression "conditions of service" includes everything from the stage of appointment to the stage of termination of service and even beyond including the matter pertaining to disciplinary action.
Again it came for consideration in Syed Khalid Rizvi and Others and Ramesh Prasad Singh and Others Vs. Union of India (UOI) and Others, . The Court formulated a question, whether seniority is a condition of service or part of rules of recruitment. It observed that conditions of service may be classified as salary, confirmation, promotion, seniority, tenure or termination of service etc. The Court considered whether a right to promotion and right to be considered for promotion constitute a condition of service. Referring to a Constitution Bench decision in Mohammad Shujat Ali and Others Vs. Union of India (UOI) and Others, the Court observed that a rule which confers a right to actual promotion or a right to be considered for promotion is a rule prescribing a condition of service. It also refers to another Constitution Bench decision in Mohd. Bhakar v. Krishna Reddy, 1970 SLR 768 observing that any rule which affects the promotion of a person relates to his condition of service. Then it also refers to a further earlier judgment of Apex Court in State of Mysore v. G.B. Purohit, C.A. No. 2281 of 1965, decided on 25.1.1967 to hold that a rule which merely effects chances of promotion cannot be regarded as varying a condition of service. Chances of promotion are not conditions of service. Same view was reiterated in a later Constitution Bench decision in Ramchandra Shankar Deodhar and Others Vs. The State of Maharashtra and Others, . All these decisions were harmonized by Court in Syed Khalid Rizvi and Others v. Union of India and Others (supra), observing that if an employee was initially recruited into service according to Rules and promotion was regulated in the same Rules to higher echelons of service, in that arena, promotion may be considered to be condition of service.
In a Division Bench decision of this Court the above decisions have been referred to and this Court in Dr. Rajeev Ranjan Misra and Others Vs. The State of U.P., The Chairman U.P. Public Service Commission and The Director Homoeopath Govt. of U.P., has said:
The distinction between rule of "recruitment" and "condition of service" is no more res integra having already been settled by the Apex Court in a catena of cases. In State of Madhya Pradesh and Others Vs. Shardul Singh, the Apex Court held that the term "conditions of service" means all those conditions which regulate the holding of a post by a person right from the time of his appointment till retirement and even pension etc. It was reiterated in I.N. Subbareddy v. State of A.P. (1997) 1 SCC 554. In Syed Khalid Rizvi and Others v. Union of India and Others (supra), the Apex Court held where a rule permits relaxation of provisions pertaining to "conditions of service", the same would be applicable to the condition after appointment to the service in accordance with rules. It also held that that "conditions of recruitment" and "conditions of service" are distinct and the latter is preceded by an appointment according to rules, the former cannot be relaxed.
Part 3, 4 and 5 contain rules of recruitment which includes rules pertaining to reservation, eligibility and other qualifications with respect to nationality, educational qualifications, age, character, marital status, physical fitness etc. and procedure for recruitment. The rules pertaining to ''recruitment'' cannot be relaxed by exercising power under Rule 26 since such rules are not relaxable.
The above decision has been followed in Devendra Nayak and Another v. State of U.P. and Others, Writ Petition No. 55988 of 2009, decided on 24.02.2011.
There is a Full Bench judgment of Gujarat High Court also dealing with this issue in A.J. Patel and Others Vs. The State of Gujarat and Others, a. The judgment was rendered by Hon''ble KT. Desai, C.J. and in para 27, with reference to the terms "recruitment" and "conditions of service" mentioned in Article 309 of the Constitution, His Lordship said:
From this Article it is evident that rules relating to the recruitment of persons to public services and posts are distinct from rules relating to the conditions of service. The conditions of service are conditions applicable to persons who have been appointed to public services and posts. The terms and condition relating to recruitment and relating to appointment to public services and posts must, therefore, be regarded as distinct and different from the conditions of service governing persons on their appointment to public services and posts.
The impugned G.O. in the opening paragraph deals with the subject "pay scale", which is admittedly a condition of service and, therefore, there cannot be any apparent objection with regard to Legislative power or competence of the State Government in issuing the aforesaid G.O. But Para 2 thereof deals with a subject which has nothing to do with revision of pay scale as such. It hampers the power of appointing authority regarding recruitment and appointment of Class-IV employees in accordance with statute like Rules, 2009. Apparently this power is not shown to be supported by any provision of Rules, 2009 or any other statute.
Even otherwise, it cannot be said that aforesaid Government order is saved by any provision in Act, 1861 or Act, 1944. Para 2 of the Government order also would be contrary to the provisions relating to recruitment under Rules, 2009 which do not recognise the engagement of a person against a Class IV post in any other manner except what is prescribed therein. For the post in question it is ''direct recruitment''. No system of outsourcing is recognised therein, therefore, para 2 of the Government order is ultra vires of Rules, 2009. This Government order is basically a general order issued to various department with respect to revision of pay and, therefore, even otherwise it would not come within the ambit of Section 2 of Act, 1861.
Moreover, in the context of what has permitted to be done, there also I am of the view that this order is palpably arbitrary, discriminatory, exploitative in nature and, therefore, suffers the vice of contravening constitutional provision under Article 14 and 16. It is not a case where requirement of Class-IV staff has been done away. The existing sanctioned posts of Class-IV have not been abolished. It is nobody''s case that henceforth the Government departments or the Police department shall not require any Class-IV staff in its functioning. What it suggests and try to endeavour, is, that they shall not employ Class-IV staff directly on their own so as to function and discharge the duties of Class-IV posts under the administrative and otherwise control of the department, but, the work, supposed to be performed by Class-IV staff, would be required to be done through staff made available by an outside agency or by that agency''s staffs. In true sense though it is termed "outsourcing", but it does not satisfy the requirement of term "outsourcing", as discussed above.
Even otherwise, ex facie the prohibition imposed by para 2 of the Government Order dated 8.9.2010 is arbitrary and illegal. The normal functioning of a Class-IV staff, as is evident from the very nomenclature of post, is menial which one can perform remaining present at the place of working for all the times. It shall have some responsibility with the officer and the office concerned. The nature of post like, Follower, Cook, Kahar, Sais, Messenger, Chowkidar, Gardner, Groundman, Farrash, Porter etc. elaborates job requirement from the very title itself. They are the jobs requiring lot of reliability, integrity, a devotion to service etc. One sitting outside the office cannot perform the aforesaid job.
Moreover, what the G.O. suggests is that for performing menial job of Class-IV, the workers shall be made available by a third party, by whatever name it may be called, may be a labour supplier, may be a Service Provider or else but in effect it amounts to introduction of a "middleman" for arranging Class-IV employees to perform the job of Class-IV in the Government departments for which the department shall pay service charges which would include wages/salary of such person (Class-IV) and also the service charges of third party. This is nothing but a kind of contract labour arrangement.
Introduction of a middlemen where the requirement is perennial, continuous and permanent, has been deprecated time and again and many statutes enacted with an objective to exclude middleman have been held to be in public interest. This is really strange that herein the State Government intend to introduce a system of middleman. Learned Standing Counsel also could not explain that besides wages/salary of the person who would be available to the department for performing the job of Class-IV employee, the service charges to third party would also be paid and in these circumstances how it can be an arrangement for saving the cost. To this query he could not reply at all.
In my view, therefore, though the concept of making available the staff to perform Class-IV job by outside agency though termed "Outsourcing", but it is nothing than a system of supply of work force through a contractor or a person who satisfy the term "contractor" for all purposes though termed as "outsourcing". Hence the system as contemplated in Para 2 of impugned G.O. is evidently exploitative, arbitrary, unreasonable, irrational, illogical, hence violative of Article 14 and 16 of the Constitution.
This Court has also considered Para 2 of G.O. dated 6.1.2011 in Writ Petition No. 36249 of 2011, Luv Kush Pandey v. State of U.P. and Others, decided on 14.10.2011 and has referred to various statutory provisions in Act, 1921 and Regulations framed thereunder. However, while reading down the G.O. so as not to cover the vacancies occurred before issuance of said order, the Court has observed as under:
Learned counsel for the State has not been able to satisfy the object behind banning the regular process of appointment against a clear vacancy on class IV post and getting it filled up by outsourcing.
The outsourcing, not being a matter of recruitment under the Act and the Regulations, could not have been introduced by means of a Government Order. It is also to be taken note of that in the instant case the vacancy had occurred on 28.2.2010, i.e. much before the issuance of Government Order dated 6.1.2011. Prior permission was granted by the Director of Education on 21.12.2010, i.e. before issuance of the aforesaid Government Order. The appointment, however, was made after issuance of the Government Order dated 6.1.2011. The vacancy having occurred prior to the Government Order dated 6.1.2011, cannot be taken to be a future vacancy so as to restrain the Principal from filling up the post for both the reasons aforesaid, viz. (1) the restraint order could not have been issued for banning the appointment on a clear vacancy of class IV post through regular process of appointment and substituting it by a new method of appointment which is not envisaged under the Act and the Regulations framed thereunder and also for the reason that the aforesaid ban, if at all is to be upheld then it has to be read down for appointments on future vacancies i.e. which had occurred after the issuance of the Government Order dated 6.1.2011 and not for the vacancies which had occurred earlier.
In the aforesaid decision this Court though doubted correctness of Para 2 of G.O. but has not ultimately adjudicated thereon and left the issue open since the facts in that case show that vacancies had occurred prior to G.O. dated 6.1.2011 and, therefore, the Court by merely reading down the G.O., upheld selection made on Class-IV posts. The observations therein, however, show that Court doubted justification of Government''s decision for banning regular appointment on Class IV posts and getting it filled up by "outsourcing" but did not render a final adjudication on this aspect. This is evident from the question posed by Court, as is evident from following:
The question, however, arises whether the State Government could have issued a blanket restraint order on making appointment on a class IV post on which (1) vacancy has occurred prior to the issuance of the banning order dated 6.1.2011, (2) the vacancy has occurred after the aforesaid Government Order dated 6.1.2011, and (3) whether such a ban can be imposed for making appointment as per the statutory provision and allowing appointment by adopting the process of outsourcing.
Since the wider issue of validity has not been decided therein, it cannot be said that except to the extent the G.O. in question therein read down by this Court, rest of G.O. stands affirmed by aforesaid judgment. A judgment is a binding precedent to the extent an issue is raised, argued and decided therein. It is not to be read as a statute. It cannot be read to cover something to which it has made no adjudication. I, therefore, find no obstruction in proceeding to consider the validity of Para 2 of G.O. dated 8.9.2010 herein.
The validity of the Government Order dated 6.1.2011 issued by State Government in furtherance of recommendation of 6th Pay Commission in respect to educational institution prohibiting engagement of Class-IV employees under the relevant statutes but to outsource them, has been considered by this Court in Committee of Management, Lala Babu Baijal Memorial Inter College, Lodipur, Ghaziabad and Another Vs. State of U.P. and Others, and the aforesaid Government order, to this extent, has been struck down being arbitrary and ultra vires. Para 2 of Government Order dated 6.1.2011 is pari materia to para 2 of the Government Order dated 8.9.2010 and, therefore, the reasons assigned therein, in entirety, apply to the present case also.
In view of above discussion, I have no hesitation in holding that para 2 of the Government Order dated 8.9.2010 is patently illegal, arbitrary and ultra vires of the statutes, i.e., Act, 1861 read with Rules, 2009, as also violative of Article 14, 16 and 19 of the Constitution, and, is accordingly struck down.
The Respondent No. 2 is directed to proceed for appointment of the persons already selected without any further delay, ignoring para 2 of the Government Order dated 8.9.2010, which prohibits recruitment under Rules, and, issue appropriate orders accordingly.
The entire exercise, as directed above, shall be completed by Respondent No. 2 within two months from the date of production of a certified copy of this order.
The writ petition is allowed in the manner as above. No costs.