Outsourcing In Govt Departments Legally Permissible But It’s Crucial To Ensure Compliance With Labour Laws: Patna High Court

The Patna High Court emphasized that outsourcing in Government Departments is legally permissible but it is crucial to ensure compliance with Labour Laws and Regulations.

The Court emphasized thus in a Civil Writ Jurisdiction Case under Article 226 of the Constitution seeking directions in the nature of mandamus for placing the Petitioners on the vacant post of Executive Assistant in the Purnea District.

A Single Bench of Justice Bibek Chaudhuri observed, “Outsourcing in government departments is legally permissible, but it is crucial to ensure compliance with Labour Laws and regulations. Government departments can outsource tasks and services, but they must ensure that the outsourced employees are treated fairly and their rights are protected.”

Senior Advocate Ashish Giri appeared for the Petitioners while AAG Prabhat Kumar Verma and Advocate K.K. Sinha appeared for the Respondents.

Brief Facts

In 2013, Bihar Prashashanik Sudhar Mission, General Administration Department, Government of Bihar, Patna (BPSM) issued a notification for preparation of a panel for the appointment of Executive Assistants on a contract basis. Clause-1 of the said notification provided the minimum eligibility criteria for the candidates, which was matriculation and basic knowledge of computer operation system (MS Word, MS Excel, MS Power Point, etc.). The notification also stated that the said contractual appointment would initially be for one year. However, there was stipulation for extension of the period of appointment for such candidates. The procedure of selection was stated in Clause-4 of the said notification, which stipulated that on the basis of applications filed in the district level, a committee under the Chairmanship of the District Magistrate would prepare a panel keeping in mind the rules/roster relating to reservation and the candidates would be appointed on the basis of seniority against vacant posts.

Accordingly, a panel was prepared by the Committee under the Chairmanship of the District Magistrate and thereafter, a memo was issued by the Secretary Health-cum- Executive Director, State Health Committee, Bihar, Patna, the District Magistrate directing that the Executive Assistant from the panel would be posted at State Hospitals in the District of Purnea on the basis of counselling of the empaneled candidates. Counselling was held where 34 candidates from the panel appeared and they were appointed on contractual basis to work under the District Health Committee, Purnea in different hospitals as Executive Assistants. By a notification, an Order was passed relating to service conditions of contractual employees posted in different departments as per the recommendation of a High Level Committee, recommending execution of certain proposals. The Petitioners filed representation before the authorities, praying for their absorption in the vacant posts lying in different departments in the District of Purnea as Executive Assistants. It was contended that the District Magistrate acted illegally and contrary to the gazette notification.

Reasoning

The High Court in view of the above facts, noted, “In a very recent decision, in the case of Chaudhary Charan Singh, Haryana Agricultural University, Hisar & Anr. v. Monika & Ors., (Civil Appeal No. 10800 of 2024), decided on 29th of November, 2024, the Hon’ble Supreme Court, while dealing with the issue as to whether an outsourced employee is entitled to get weightage for regular employment in the University, held that outsourcing policy stipulates that the services may be outsourced as and when required partly or completely by the departments, where posts have not been sanctioned, on contract basis.”

The Court said that the State Government is entitled to take policy decision that the Data Entry Operators would be deputed by the Government Departments through a service provider under outsourcing policy.

“… However, the said policy decision cannot be made effective retrospectively, directing the contractual employees, who were discharging the similar duties for a long period of time, to submit themselves to a selection process to be conducted by BELTRON with fresh applicants, without terminating their job on the ground of efficiency”, it added.

The Court was of the opinion that subsequent decision of outsourcing of service providers in data centres under various departments of the State Government is not applicable in case of the Petitioners.

“In the instant case, petitioners are treated differently from their fellow Executive Assistants, working in the district of Ara and Araria. … his issue has not been decided in any of the writ petitions disposed of by different Benches of this Court in the light of the executive decisions taken time to time by the BPSM under the General Administration Department”, it further remarked.

The Court, therefore, held that the Writ Petition is maintainable and the Petitioners are entitled to the following reliefs –

A. Memo issued under the signature of the District Magistrate Purnea, by which the list of the Petitioners has been submitted to the BELTRON for taking appropriate action is quashed and set aside.

B. The Petitioners are entitled to perform their duties as Executive Assistants on the basis of notification, till the attainment of 60 years of age or till the end of the scheme, whichever is earlier.

C. The District Magistrate, Purnea is directed to place the service of the Petitioners in the vacant posts of Executive Assistants, if any, in any of the Data Centres, run by various Departments of the State Government within a period of four weeks from the date of the Order. If no such vacancy is available, the Petitioners may be posted in the Data Centres of other districts in the State of Bihar.

D. The Petitioners, however, are not entitled to receive back-wages/salary from the month of August, 2021 as they did not render any service in any of the Department of the State Government.

Accordingly, the High Court allowed the Writ Petition.

Cause Title- Amit Kumar & Ors. v. The State of Bihar & Ors. (Case Number: Civil Writ Jurisdiction Case No.8991 of 2022)

Appearance:

Petitioners: Senior Advocate Ashish Giri, Advocates Sumit Kumar Jha, and Riya Giri.

Respondents: AAG Prabhat Kumar Verma, AC Suman Kumar Jha, Advocates K.K. Sinha, Grijeh Kumar, Deepak Kumar, Rajiv Kumar, and Rajesh Ranjan.

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