# Kalamuddin & Ors v. State of U.P. & Ors

- **Citation:** (2023) 4 ILRA 1489
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-27
- **Case number:** Writ-A No. 3451 of 2022
- **Bench:** Mrs. Sangeeta Chandra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kalamuddin-ors-v-state-of-u-p-ors-50077
- **Pages:** 38

## Headnote

C.S.C., Sri Sujeet Kumar Rai, Sri O.P. Singh
(Sr. Advocate), Sri Navin Sinha (Sr.
Advocate)

A.
Service
Law
-
Circular
dated
17.09.2021-issued by the Commissioner
1490 INDIAN LAW REPORTS ALLAHABAD SERIES
and
Registrar,
Cooperatives
U.P.,
Lucknow- outsourcing of contractual work
being carried out by petitioners- Class III
and Class IV employees-working for last
10 to 20 years on contractual basis-U.P.
Cooperative Societies Act, 1965- U.P.
Cooperative Societies Employees Service
Regulations,
1975-U.P.
Rajya
Nirman
Sahkari Sangh- State level apex society.

B. Whether writ petition against Sangh
maintainable-question of maintainability
raised to digress from the main issue-writ
petitions held to maintainable-challenge
to the circular of respondent no. 2 and
consequential actions taken thereafter.
(Paragraphs 53 and 68)
HELD:
If that is the case, then the conduct of the
Respondent nos.3 to 6 after issuance of such
Circular dated 17.09.2021 belies the arguments
of their learned counsels. If at all the
respondent no.2 had no control over the
Respondent Nos.3 to 6 then it is quite
improbable that they would have issued tender
notice on GeM portal inviting bids from service
providers. This Court is of the considered
opinion that the question of maintainability has
been raised only to digress from the main issue
as to whether the Respondent No.2 could have
issued such Circular dated 17.09.2021. It is
evident also that the petitioners are indeed
going to be affected if such Circular is to be
given effect to by the Respondent nos.3 to 6.
Therefore, this Court holds that writ petitions
are maintainable as they challenge the Circular
of the respondent no.2 and consequential
actions taken thereafter by respondent nos.3 to

## Text

_Characters 0–39,710 of 128,765. This is a partial read: ask again with offset=39710 for what follows._

4 All. Kalamuddin & Ors. Vs. State of U.P. & Ors.
1489
with regard to a particular issue, the
correctness or legality of that issue cannot
be questioned. Undoubtedly, it is the
prosecution's duty to prove its side of story.
However, in the light of Section 3 of the
Indian Evidence Act, the Apex Court has
observed in Harendra Vs. State of Assam,
AIR 2008 SC 2467 and Himanchal
Prashasan Vs. Om Prakash, AIR 1972 SC
975 that benefit of doubt should be given
only on the basis of logical, reasonable and
honest conclusion.

123. From the above discussion, it has
been established that in this case a prompt
F.I.R. has been lodged against the named
accused persons describing their specific
role who killed the deceased having
previous enimity after forming an unlawful
assembly to achieve the common object of
such assembly, which has been proved by
the independent eye-witnesses beyond
reasonable doubt. The witnesses are proved
to be sterling witnesses. Though the trial
court has acquitted the accused persons
under the charge of the Arms Act against
which no appeal has been preferred by the
State or the informant. But a charge under
the Arms Act is different from the charges
under the Indian Penal Code regarding
commission of the main crime. In this
reference
the
pronouncement
of
Nankaunoo Vs. State of UP, (2016) 3 SCC
317 (three-Judge Bench) is important in
which the Apex Court has held that where
the ample unimpeachable ocular evidence
corroborated by medical evidence is
available, mere non-recovery of weapon
from the accused does not affect the
prosecution case relating to murder.

124. The prosecution has been
succesful proving the case against all the
accused persons beyond reasonable doubt
under Sections 147, 148, 302 read with
Section 149 IPC. The appellants could not
create any doubt and could not establish
any ground on which the conviction
recorded under the aforesaid charges could
be reversed. Though it is a case of brutal
murder even then the trial court has
awarded only minimum sentence which
cannot be reversed. Thus this Court
concludes that the appeals in respect of
conviction and sentencing are devoid of
merit and are liable to be dismissed.

O R D E R

125. The appeals are dismissed.

126. Let the original file be sent back
to the trial court for consignment alongwith
a copy of this judgment.
----------
(2023) 4 ILRA 1489
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.03.2023

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.

Writ-A No. 3451 of 2022
With
Other Writ-A Cases

Kalamuddin & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Siddharth Khare, Sri Ashok Khare (Sr.
Advocate)

Counsel for the Respondents:
C.S.C., Sri Sujeet Kumar Rai, Sri O.P. Singh
(Sr. Advocate), Sri Navin Sinha (Sr.
Advocate)

A.
Service
Law
-
Circular
dated
17.09.2021-issued by the Commissioner
1490 INDIAN LAW REPORTS ALLAHABAD SERIES
and
Registrar,
Cooperatives
U.P.,
Lucknow- outsourcing of contractual work
being carried out by petitioners- Class III
and Class IV employees-working for last
10 to 20 years on contractual basis-U.P.
Cooperative Societies Act, 1965- U.P.
Cooperative Societies Employees Service
Regulations,
1975-U.P.
Rajya
Nirman
Sahkari Sangh- State level apex society.

B. Whether writ petition against Sangh
maintainable-question of maintainability
raised to digress from the main issue-writ
petitions held to maintainable-challenge
to the circular of respondent no. 2 and
consequential actions taken thereafter.
(Paragraphs 53 and 68)
HELD:
If that is the case, then the conduct of the
Respondent nos.3 to 6 after issuance of such
Circular dated 17.09.2021 belies the arguments
of their learned counsels. If at all the
respondent no.2 had no control over the
Respondent Nos.3 to 6 then it is quite
improbable that they would have issued tender
notice on GeM portal inviting bids from service
providers. This Court is of the considered
opinion that the question of maintainability has
been raised only to digress from the main issue
as to whether the Respondent No.2 could have
issued such Circular dated 17.09.2021. It is
evident also that the petitioners are indeed
going to be affected if such Circular is to be
given effect to by the Respondent nos.3 to 6.
Therefore, this Court holds that writ petitions
are maintainable as they challenge the Circular
of the respondent no.2 and consequential
actions taken thereafter by respondent nos.3 to
6. (Para 68)

C. Whether the writ of mandamus can be
issued to enforce contractual rights-power
to make contractual employment- implicit
in the power to make a regular permanent
appointment-contract of personal services
sans
statutory
flavour-in
cases
like
termination of services-no writ can be
granted-however,
instant
case
is
different-contractual
engagement
of
petitioners-controlled by executive orders,
circulars
and
policy
statements
of
respondents-expression of policy by the
authority which is the State-court can
certainly interfere if such decisions found
to be arbitrary and irrational-no decision
by the State that the employees cannot be
engaged directly on contractual basisimpugned orders, therefore, arbitrary and
liable
to
be
quashed-right
of
the
petitioners to be engaged afresh as per
past practice stands revived-eclipse cast
by the circular date 17.09.2021 removedpetition disposed of. (Paragraphs 69, 82,
85, 90,92, 93, 94, 95 and 96)
HELD:
Now coming to the case of Grid Co. (supra),
considering the facts of the case the Court had
observed that the power to make contractual
employment is implicit in the power to make a
regular permanent appointment unless the
Statute under which this authority is exercised
forbids making such an appointment. The
appointment order had specifically described the
appointment to be a tenure appointment limited
to a period of three years subject to renewal on
the basis of performance. The Appellant
Corporation had also extended the tenure
suggesting that the appointment was a tenure
appointment, extendable at the discretion of the
Board of Directors. The Court held that renewal
of Contract employment depended upon the
perception of the management as to the
usefulness of the respondent and the need for
an incumbent in the position held by him. This
discretion lay entirely in the Board of Directors
there was no element of any unfair treatment or
unequal
bargaining
power
between
the
appellant and the respondent no. 1 to call for an
oversympathetic or protective approach towards
the latter. Contractual appointments work only if
they seem mutually beneficial to both the
contracting parties and not otherwise. There
was no material to show any unreasonableness,
unfairness, perversity or irrationality in the
action taken by the Corporation. (Para 82)

It is true that the law as quoted above that a
Contract of personal service which is not imbued
with any statutory flavour cannot be enforced
and that the Writ as prayed for in cases of
termination cannot be granted, has consistently
held the field. (Para 85)

However, the contractual engagement of the
petitioners is controlled by executive orders,
Circulars
and
policy
statements
of
the
4 All. Kalamuddin & Ors. Vs. State of U.P. & Ors.
1491
Respondents issued from time to time also.
These orders like the Circular dated 17.09.2021,
have been issued by the respondent no.2 as an
expression of policy by an authority which is the
State, and consequential action of the Sangh
which is a body discharging a public function
and a public duty, would also bind such
respondents as a Code of Conduct enforceable
in law. The petitioners would derive a right to
assail
and
question
the
action
of
the
respondents notwithstanding the fact that their
engagement is contractual. In other words, this
Court can certainly interfere if the policy
decision in pursuance of which impugned
Invitation to Bid on GeM portal has been taken
is arbitrary and irrational. (Para 90)

There does not exist any conscious decision at
any level either in the State Government or in
the
respondent
Cooperative
Society
that
contractual employees are not to be directly
engaged or ought to be engaged only through
an outsourcing Agency. In the absence of any
such decision, the impugned orders are clearly
arbitrary
and
liable
to
be
quashed.
In
paragraph-4 of the Government Order dated
25.08.2022, it it has been clearly specified that
the currently working outsourced employees
should be retained as employees through
outsourcing Agency. Identifying an outsourcing
Agency for supply of 622 employees to replace
the
currently
working
622
contractual
employees with a further stipulation that the
existing workers should now be engaged
through an outsourcing Agency selected through
GeM portal appears to be a wholly whimsical
decision having no rational basis. (Para 92)

None of the affidavits filed on behalf of the
respondent Sangh refer to any such decision
taken by the Government. The Commissioner
and Registrar, only interpreted the Government
Orders and the Sangh called for information
regarding number of employees directly working
on Contract and on the basis of information that
there were 622 such employees, tender notice
was issued on the GeM portal for providing 622
employees and for selection of an outsourcing
Agency for their engagement. The decision to
issue the tender notice on the GeM portal and
not to renew the Contract of the petitioners is a
mechanical
decision
based
upon
misunderstanding of the Circular and the
Government Orders issued from time to time.
(Para 93)

Although, no writ of mandamus can be issued to
the Respondent nos.3 to 6 in this regard by the
Court under Article 226 of the Constitution, this
Court having already held that the interpretation
of the Circular dated 17.09.2021 by the
Respondent no.2 as given by the Respondent
nos.3 to 6 being irrational and misconceived,
the right of the petitioners to be engaged afresh
as per past practice stands revived. The eclipse
cast by the Circular dated 17.09.2021 is
removed. (Par a 95)

Petition disposed of. (E-14)

List of Cases cited:

1. Writ Petition No.31208 (MB) of 2019, [M/s
RMS Techno Solution VS. Addl. Chief Secretary
Revenue & ors.

2.St. of Karnataka Vs Uma Devi reported in
2006 (4) SCC 1

3.Vijay Bihari Srivastava Vs U.P. Postal
Primary Cooperative Bank Ltd. & anr. (2003)
1 UPLBEC 1

4.Anil Kumar Pandey & ors. Vs St. of U.P. & ors.
2016 (7) ADJ 495 (Full Bench)

5.S.S. Rana Vs Registrar, Circle Officer
Cooperative Society & anr. (2006) 11 SCC 634

6.Radha Charan Sharma Vs U.P. Cooperative
Federation, 1982 UPLBEC 89 (FB)

7.U.P. State Cooperative Land Development
Bank Vs Chandra Bhan Dubey 1999 (1) SCC
741

8. Thalappalam Service Cooperative Bank Ltd Vs
St. of Kerala & ors. 2013 (16) SCC 82

9.St. of U.P. & ors. Vs Principal Abhay Nandan
Inter-College & ors. Civil Appeal 865 of 2021,
decided on 27.09.2021

10.University of Delhi Vs Delhi University
Contract Employees Union & ors., 2021 SCC
Online SC 256
1492 INDIAN LAW REPORTS ALLAHABAD SERIES
11.St. of Karnataka & ors. Vs M.L. Kesri & ors.,
2010 (9) SCC 247

12.St. of Guj. & ors. Vs P.W.D. Employees Union
& ors. 2013 (12) SCC 417

13.Nihal Singh & ors. Vs State of Pun. & ors.
2013 (14) SCC 65

14.Sheo Narayan Nagar & ors. Vs St. of U.P. &
ors. 2018 (13) SCC 432

15.Narendra Kumar Tiwari & ors. Vs St. of Jhar.
& ors. 2018 (8) SCC 238

16. Official Liquidator Vs. Dayanand & ors. 2008
(10) SCC page 1

17. National Aluminium Company Ltd. Vs
Deepak Kumar Panda 2002 (6) SCC 223

18.Grid Co. Ltd. & anr. Vs Sadananda Dolloi &
ors. 2011 (15) SCC 16

19. Sreelekha Vidyarthi Vs St. of U.P. 1991 (1)
SCC 212

20.Satish Chandra Anand Vs U.O.I., AIR 1953
Supreme Court 250

21.Writ-A No. 4845 of 2021: Sunita Singh Vs St.
of UP & ors.

22. Sheela Devi Vs St. of U.P. & ors. 2010 SCC
Online ALL 1142

23.M.K. Gandhi Vs Director of Education
(Secondary) U.P., Lucknow, 2005 SCC Online
ALL 728

24.Roychan Abraham Vs St. of U.P. & ors., 2019
SCC Online ALL 3935 (FB)

25. Ramakrishna Mission Vs Kago Kunya, 2019
(5) SCALE 559

(Delivered by Hon'ble Mrs. Sangeeta
Chandra, J.)

1. Heard Sri Ashok Khare, learned
Senior Advocate assisted by Sri Siddhartha
Khare, learned counsel for the petitioners,
and Sri Ajit Kumar Singh, Additional
Advocate
General
assisted
by
Sri
Sudhanshu Srivastava for the respondent
no. 1 and 2, and Sri O. P. Singh, learned
Senior Advocate assisted by Sri Sujit
Kumar Rai for the respondent no. 5 and 6,
and Sri Navin Sinha, learned Senior
Advocate again assisted by Sri Sujit Kumar
Rai for the respondent nos. 3 & 4.

2. All of the above petitions are
connected and are being taken up together
as they involve identical issues. There are a
total of 378 petitioners before this Court.
All of them have challenged Circular dated
17.09.2021 issued by the Commissioner
and Registrar Cooperatives U.P. Lucknow
and also the communication of the Deputy
General Manager (Administration) of U.P.
State Nirman Sahkari Sangh Limited
Lucknow
(hereinafter
referred
to
as
"Sangh") and the notice dated 22.02.2022
issued by the Superintendent Engineer, and
have prayed for a Mandamus to be issued
to the respondents not to interfere in the
working
of
the
petitioners
as
Sahyogis/Clerks/Junior
Engineers
/Assistant Engineers, and to pay them their
regular monthly emoluments and not to
cause any break in the continuity of the
service of the petitioners, and to continue
the petitioners till the requirement of work
continues to exist. A further prayer has
been made to restrain the respondents from
replacing the petitioners by Contract
employees
engaged
through
service
providers.

3. We will take the facts of the
leading case of Kamal Uddin and Others
Vs. State of U.P. and Others, as they cover
almost all the grounds and other Writ
Petitions are also of similar nature. In the
Writ Petition it has been submitted that U.
4 All. Kalamuddin & Ors. Vs. State of U.P. & Ors.
1493
P. Rajya Nirman Sahakari Sangh/ U.P.
State Construction Cooperative Sangh Ltd
Lucknow, is an Apex Level Cooperative
Society registered under the provisions of
the U.P. Cooperative Societies Act, 1965.
Its service conditions of employees are
governed by U.P. Cooperative Institutional
Service Board which has framed a set of
Regulations known as U.P. Cooperative
Societies Employees Service Regulations,
1975.

4. In paragraph 6 of the Writ Petition
it is claimed that the Sangh is an
instrumentality of the State and is under its
total administrative and financial control.
The majority of the funding of the Sangh is
borne by the State Government. The
recruitment and other conditions of the
service of employees are governed by
Statutory Regulations framed under Section
122 of the 1965 Act. (This has been
specifically denied in the counter affidavit
of the Sangh).

5. It has further been submitted that
all the Writ Petitioners are working either
as Sahyogis/Class IV employees or as
Clerks or as Junior Engineers or Assistant
Engineers for a long time on basis of
contracts signed annually. Some of the
petitioners have been working since 1999
while others have been engaged in 2010,
but most of them have been working for the
past 10 to 20 years on the basis of such
contractual arrangement where contracts
are entered into on different dates in the
month of April each year and extend upto
31st March of the next year. Some copies
of contracts entered into initially by each
category of such petitioners have been filed
as exemplars. It has further been stated that
initially a Class IV employee was engaged
in the year 2002 on a consolidated payment
of Rs.2000/- which has increased from time
to time and now is Rs.11,500/-. Similarly a
Clerk
was
initially
engaged
on
a
consolidated fee of Rs.3,000/- and the
monthly pay
has
now
increased
to
Rs.13,000/-.
A
Junior
Engineer
was
engaged in 2010 on monthly pay of
Rs.9,375/- which has now increased to
Rs.15,063/-. An Assistant Engineer was
engaged in the year 2009 on monthly pay
of Rs.10,000/- which has now increased to
Rs.23,500/-. Details of all the petitioners
allegedly continuously working, from the
time of their initial engagement, though on
the basis of annual contracts signed each
time, have been specified in a tabular charts
filed as annexures no. 12A, 12B, 12C and
12D to the Writ Petition.

6. On 17.09.2021 (Annexure-13) the
Commissioner and Registrar Cooperatives
U.P. i.e. the Respondent No.2 issued a
Circular
addressed
to
the
Managing
Director of all Apex Level Societies and
District Cooperative Societies referring to
Government
Orders
for
obtaining
outsourced employees through GeM Portal.
It referred to Government Orders dated
18.12.2019, 25.08.2020 and 18.06.2020. It
has been stated that the main Government
Order issued in this regard for adoption of
GeM Portal as devised by the Government
of India is the Government Order dated
25.08.2020
(Annexure-14).
Acting
in
pursuance of such Circular correspondence
was undertaken by the officers of the
Sangh, and on information so collected it
was revealed that a total number of 622
employees were working on contractual
basis in different Divisions of the Sangh. In
pursuance of such correspondence, the
Superintendent Engineer issued a GeM Bid
Invitation Notice inviting bids from service
providers for supplying 622 contractual
employees. The actual bid document was
released on the GeM Portal on 24.02.2022
1494 INDIAN LAW REPORTS ALLAHABAD SERIES
inviting bids up to 08.03.2022. The bid
documents mentioned the department's
name as Cooperative Department U.P., and
the
manpower
required
through
outsourcing has been specified to match
with the number and category of employees
such as the petitioners who have been
engaged on contractual basis and have been
working since long with the Sangh. This
clearly demonstrated the intention of the
respondents to dispense with the services of
the petitioners subsequent to 31.03.2022
and to replace them by persons engaged
through an outsourcing Agency/service
provider, to be decided by evaluating the
bids uploaded on the GeM Portal. The
petitioners are being sought to be replaced
en bloc by employees engaged again on
Contract through service provider by way
of outsourcing.

7. In paragraph-34 of the Writ
Petition, it has been submitted that the
impugned action is with the intention to
deprive the petitioners of any benefit
accruing to them on the basis of their
substantial length of service despite the fact
that the State Government has from time to
time
issued
orders
with
regard
to
Regularisation of such employees. Details
of some such Regularisation/ Absorption
Rules have been mentioned in the subparagraphs as U.P. Regularisation of Ad
hoc Appointments (on posts within the
purview of UP Cooperative Institutional
Service Board) Regulations, 1985; U.P.
Regularisation of Service of Persons
Working on Daily Wages or on Work
Charge or on Contract Basis (on posts
within the purview of U.P. Cooperative
Institutional Service Board in Cooperative
Societies)
Regulations,
2017;
and
Government
Order
dated
24.02.2016
permitting Regularisation of daily wage
employees/work
charged
employees/
employees on Contract in Government
Departments/Autonomous Bodies/ Public
Sector
Corporations/
Local
Bodies/Development Authorities and Zila
Panchayats; and U.P. Regularisation of
persons working on daily wages or on work
charge or on Contract in Government
Departments and Group ''C' and Group ''D'
posts (outside the purview of U.P. Public
Service Commission) Rules, 2016.

8. It has been stated further that
several of the petitioners stand squarely
covered by the Regularisation Rules as
mentioned in paragraph-34, but till date no
steps
have
been
taken
for
their
Regularisation. The remaining petitioners
though specifically not covered by the
aforesaid
Regularisation
Rules
nevertheless, on account of their continued
working directly as contractual employees,
have a legitimate expectation of being
ultimately regularised in future. The
legitimate expectation has been sought to
be
thwarted
by
replacement
of
the
petitioners with contractual employees
engaged through service provider in
pursuance of the impugned order Annexure
-13. Each of the petitioners possess the
requisite
qualification
for
the
work
performed by them and one set of
contractual employees should not be
replaced by another set of contractual
employees. In the present
case the
respondents intend to replace directly
engaged
contractual
employees
by
contractual employees engaged through
service provider selected through the GeM
Portal.
Arrangement
of
obtaining
contractual
employees
through
an
outsourcing Agency imposes additional
financial burden upon the Sangh in the
form of commission payable to the service
provider, as also the payment of GST on
such Contract entered into with the service
4 All. Kalamuddin & Ors. Vs. State of U.P. & Ors.
1495
provider. There does not exist any financial
benefit to the Sangh by taking recourse to
such device.

9. It has also been stated in paragraph41, 42 and 43 of the petition that utilisation
of GeM Portal should only be in case
contractual employees are required through
a service provider. There existed no
occasion for the GeM Portal to be utilised
when contractual employees are engaged
directly by the respondent Apex Level
Cooperative Society. The Sangh has
proceeded to mechanically act upon the
Circular dated 17.09.2021, without any
clarification sought from the respondent
No. 2 whether it permits employees directly
engaged through Contract to continue.
There does not exist any rational reason for
replacing directly appointed contractual
employees who have worked for past
several years by employees to be engaged
again on Contract but through service
provider.

10. Initially, when the writ petition
was filed, this Court was pleased to grant
an interim order dated 25.03.22 which
noted
that
the
petitioners
were
all
employees of U.P. State Nirman Sahkari
Sangh and engaged on Contract basis for
past several years and that the respondents
were proceeding to now employ other
persons
through
outsourcing.
The
respondents had stated that they were
following the Government Order dated
25.08.2020 and had invited tenders for the
purpose of engaging service providers
through GeM portal as contemplated under
the said Government Order. The argument
raised by the petitioners was that if the
Government Order is to be complied with,
it could not be used as a tool to replace
employees like the petitioners already
engaged on Contract basis directly by the
respondents. The Court was prima facie of
the opinion that the petitioners have been
discharging their duties for the past more
than a decade and it would be quite
unfortunate to replace them by outsourced
employees or even direct them to apply
through GeM portal. The Court, therefore,
directed that till further orders status quo shall
be maintained with regard to "the nature of
status of employment of the petitioners with
the establishment and the future renewal of
Contract will not be influenced in any manner
by inviting outsourced agencies to provide
work force through GeM portal". It was also
clarified that the petitioners would not be
replaced
through
outsourced
agencies'
workers. Similar interim orders were granted
thereafter on 08.04.22 and 13.04.2022 and
26.04.2022 and 24.05.2022 in all the writ
petitions further clarifying the same that even
if there is no renewal of a Contract, if the
petitioners have been continuing to work for a
decade in the respondents' establishment on
Contract on year to year basis, then they be not
replaced by outsourced employees, nor they
should be compelled to apply through GeM
portal.
The
Court
observed
that
the
respondents were at liberty to take work or not
from them but they were certainly not at
liberty to replace them by outsourced
employees. It was also clarified that the
respondents should not engage any employee
through outsourced Agency to take work. If
there is work available with the respondents
and if they want to engage employees, the
petitioners shall be permitted to enter into
Contract again. However, if additional work
force is required over and above the petitioners
and similar other employees, it would be open
for the respondents to take employment
through outsourced agencies.

11. The Respondents had filed two
Special Appeals against such interim orders
where, while condoning the delay in filing
1496 INDIAN LAW REPORTS ALLAHABAD SERIES
the Special Appeal, the Court observed that
the learned Single Judge had passed the
interim order taking into account the fact
that the petitioners had been engaged on
contractual basis and had been working for
last more than 10 years and, therefore,
should be allowed to continue and in case
there
is
requirement
of
additional
workforce, it was left open to the
authorities
to
engage
persons
to
outsourcing Agency. It observed that
interference in the interim orders passed by
the Writ Court was not required as it was
the admitted case of the appellant that
persons who were already working, were
not being replaced with other workforce to
be engaged for outsourcing Agency. The
Appellate Court disposed of the Special
Appeals directing that the writ petitions
should
be
taken
up
and
decided
expeditiously.

12. A Counter Affidavit has been
filed on behalf of the Respondent Nos.1 &
2 wherein it has only been stated that the
Circular
17.09.2021
issued
by
the
Commissioner and Registrar Cooperatives,
was in accordance with the Government
Order dated 18.12.2019, issued by the
Department of Personnel, and Government
Order dated 25.08.2020 issued by the
Micro, Small and Medium Industries
Department Government of U.P., and
Government Order dated 18.08.2020 was
issued by the Department of Labour. The
said Government Orders had not been
challenged by the petitioners and only
consequential orders had been challenged.

13. In response to the same, a
Rejoinder Affidavit has been filed by the
petitioners where they state that they have
challenged the action of the Respondent
Nos.3 & 4 which is independent of the
validity
of
Government Orders.
The
Circular and the Government Order only
constitute a decision that in case of
requirement of materials or outsourcing of
manpower, the GeM Portal is to be utilized.
No
Government
Order
contains
any
decision
regarding
engagement
of
contractual employees by the Sangh, and
that they cannot be directly engaged by the
Sangh. These Government Orders provided
that in case manpower is to be engaged
through outsourcing, then the GeM Portal
has to be utilized. This is evident also from
the fact that despite such Government
Orders being circulated, there continue to
exist several Corporations under the control
of the State Government which continue to
engage contractual employees directly, for
example,
the
State
Warehousing
Corporation, the U.P. Construction Labour
Development Federation etc.

14. In the Counter Affidavit filed by
the Respondent Nos.3 to 6, it has been
stated that the Government of India had
issued an order on 17.12.2017 for taking
manpower and other resources from the
GeM Portal which was adopted by the State
Government
Order
dated
23.08.2018.
Thereafter, also the State Government had
issued at least three Government Orders.
The Said Government Orders had not been
challenged in the writ petitions and only
consequential
Circular
had
been
challenged. The petitioners had been
permitted to work as contractual employees
only till 31.03.2022 when their contracts
expired, and still they had not applied for
getting a fresh engagement through GeM
Portal. Paragraph-6 of the writ petition has
been specifically denied. It has been stated
that U.P. Rajya Nirman Sahkari Sangh is a
registered Apex level Cooperative Society
and a body Corporate with autonomous
existence on which the State Government
has got no control. It is further stated that
4 All. Kalamuddin & Ors. Vs. State of U.P. & Ors.
1497
the petitioners have been working for short
periods of time for example for six months
upto one year. The Tenure/Contract was
not extended. Fresh Contract was required
to be signed. No fresh Contract had been
signed after 31.03.2022. With respect to
several of the writ petitioners, it has been
pointed out that they had not been working
continuously as alleged, some of them had
worked for one or two years only. Details
of such employees with names have also
been mentioned. The petitioners have never
been ''appointed'' but having only been
engaged on contractual basis for a fixed
period with a monthly consolidated salary
and had no right to continue beyond the
term of the Contract.

15. In Paragraphs 19 & 20 of the
Counter Affidavit, it has been stated that it
is absolutely wrong to say that the
answering respondents were going to
dispense with the contracts by replacing the
petitioners and engaging other persons
through outsourcing. The respondents are
not going to disengage the petitioners
because as per the Government Order,
contractual employees who were working
on different posts earlier would be engaged
as fresh contractual employees through
GeM Portal as per the directions given by
the
Government.
However,
their
engagement should not be made if their
work and conduct is not satisfactory, and it
would also be informed to the Agency who
would take a decision about their fresh
engagement.
It
is
only
to
promote
transparency
in
the
employment
of
contractual workers that the Government of
India had taken a policy decision that
manpower should be purchased from the
GeM Portal and once the policy has been
determined by the Central Government
which has been adopted at the State level, it
has to be followed as the policy decision
has not yet been challenged by the
petitioners. The petitioners are not going to
be disengaged as alleged as the Contract
came to an end on 31.03.2022 itself, then
there was no fresh Contract. Not entering
into fresh Contract with the contractual
employees does not mean termination of
their employment, it only means cessation
of their work on the current period of
engagement having come to an end on
31.03.2022. The petition has been filed on
mere apprehension as no cause of action
has
yet
arisen.
The
argument
that
replacement of contractual employees with
contractual employees would be arbitrary,
would not apply here because the Contract
of all the petitioners had come to an end on
31.03.2022 and now the Government of
India had taken a policy decision to make
engagement only through GeM Portal to
maintain transparency in such engagement
which cannot be said to be in violation of
Article 14 of the Constitution.

16. In the Supplementary Counter
Affidavit filed by the respondents along
with a Stay Vacation application, it has
been mentioned that after the end of the
Contract of the petitioners on 31.03.2022,
no work has been taken from them and no
payment has been made. It has further been
clarified that several of the writ petitioners
had worked only for one year or two years
on Contract basis and the averments made
in the writ petition that they had continued
for more than a decade is false.

17. In the Supplementary Rejoinder
Affidavit filed by the petitioners they have
referred to the Interim Orders granted on
25.03.2022 and on 08.04.2022, directing
the respondents to maintain the status of the
petitioners employment and not to engage
contractual employees through outsourcing,
against which two Special Appeals were
1498 INDIAN LAW REPORTS ALLAHABAD SERIES
filed and dismissed on 04.07.2022. It has
also been stated that complete information
regarding periods of engagement of such
petitioners has been mentioned in the
Tabular Charts enclosed with the writ
petition and that the respondents were
resorting to artificial breaks between the
end of one Contract and the signing of
another fresh Contract. The petitioners
working as Junior Engineers had deposited
the security amount in the form of a
Demand Draft of Rs.50,000/- and those
working
as
Assistant
Engineers
had
deposited a Demand Draft of Rs.1,00,000/-
each. Such security amount was never
returned at the end of the period of
Contract and remained continuously in
possession
of
the
respondents.
One
Contract ended and another was signed
indicating clearly that the breaks were
artificial in nature. If such breaks were real
then at the end of every Contractual term,
the Security Money would have been
returned and fresh Security Money would
have been accepted on signing of fresh
Contract.

18. In the Second Supplementary
Counter Affidavit filed on behalf of the
Respondent Nos.3 to 6 a reference has been
made to the Circular dated 17.09.2021
which had referred to various Government
Orders which provided mandatorily for
engagement
of
manpower
through
outsourcing via GeM Portal. This Court by
means of Interim Orders directed the
respondents to maintain the status of
employment of the petitioners, their future
renewal of Contract would not be affected
by inviting of bids of outsourcing Agencies
to provide workforce through GeM Portal.
Since Contempt Petitions were filed the
Board of Directors had come to a decision
to cancel the entire process of outsourcing
or selecting Agencies through GeM Portal
and the selected Agency's Contract was
also terminated.

19. In the Second Supplementary
Rejoinder Affidavit filed in reply to the
Second Supplementary Counter Affidavit
of the respondents, the petitioners have
stated that the Circular dated 17.09.2021 is
only a generally worded communication
which has referred to some Guidelines
having
been
sought
by
different
Cooperative Societies with regard to
outsourcing
of
employees.
The
said
Circular has been wrongly interpreted by
the Sangh to say that a direction had been
issued that contractual employees would be
employed
only
through
outsourcing
Agency selected through GeM Portal.
Several
direct
contractual
employees
continue to be engaged in other Apex Level
Cooperative Societies and Institutions.
Petitioners have brought on record a
Contract entered into between Sudhanshu
Patel of Awsar Multi Solutions Private
Limited on 14.03.2022 which would
remain in force up to 14.01.2023. In
Paragraph-7 of the Second Supplementary
Rejoinder Affidavit a mention has been
made of information downloaded from
Google regarding the selected service
provider namely Awsar Multi Solution
Private Limited which has its registered
address at 505A/5/1649, Adil Nagar, Kursi
Road, Lucknow, which happens to be the
residential address of Smt. Rekha Verma
wife of Shri J.P. Verma, the Private
Secretary to Sri Mukut Bihari Verma, the
Cooperative Minister, in power till March,
2022. It has been averred that the
outsourcing Agency was wholly fraudulent
and the Directors of Awsar Multi Solution
Private Limited included Roshan Verma
and Kshitij Kumar Verma who were close
blood relatives of Mukut Bihari Verma, the
then Cooperative Minister. A copy of the
4 All. Kalamuddin & Ors. Vs. State of U.P. & Ors.
1499
House Tax bill obtained from Lucknow
Municipal Corporation with regard to the
residential premises belonging to Rekha
Verma have been filed as Annexure to the
said affidavit.

20. This Court has perused IInd
Supplementary Rejoinder Affidavit and
IIIrd Supplementary Rejoinder Affidavit
and the information downloaded from
Google which has been filed as Annexure
to the Second Supplementary Rejoinder
Affidavit. It has come out from the same
that Awsar Multi Solutions Private Ltd. is a
private
Company
incorporated
on
16.08.2021 with an authorized share capital
of Rs.1,00,000/- and paid-up capital of
Rs.10,000 only. The Company has two
Directors Roshan Verma and Kshitij
Kumar Verma.

21. In the IIIrd supplementary
Counter Affidavit filed on behalf of the
Respondent Nos.3 to 6 it has been stated
that the interim order passed by this Court
only directed for maintenance of status quo
with regard to the nature of employment of
the
petitioners.
It
had
not
directed
maintenance of status-quo with respect to
their service. The nature of employment
continues to remain contractual. It has also
been reiterated that once the entire process
of outsourcing has been cancelled by order
dated 10.08.2022 nothing remained to be
adjudicated.
If
and
when
additional
manpower is required then the Sangh may
consider fresh Contract to be entered into
as per requirement of work. Also the
Contract with Awsar Multi Solutions has
been cancelled and the entire process of
selection of service provider through GeM
Portal has also been abandoned. However,
there is no specific reply given by the
respondents
to
the
allegations
made
regarding the connection of Directors of
Awsar Multi Solutions with the Private
Secretary of the then Cooperative Minister
or with the Minister himself.

22. It is the case of the petitioners as
argued by Sri Ashok Khare, learned Senior
Advocate assisted by Sri Siddharth Khare
that U.P. State Nirman Sahkari Sangh
Limited Lucknow (hereinafter referred to
as "Sangh") is an Apex level Cooperative
Society governed by the provisions of U.P.
Cooperative Societies Act 1965, and is
within the purview of U.P. Institutional
Service Board and the provisions of U.P.
Cooperative
Employees
Service
Regulations 1975. The State Government
exercises all pervasive control over it and
the Sangh, therefore, is covered by the
definition of State under Article 12 of the
Constitution. The Sangh had engaged 622
employees
on
contractual
basis
for
discharging work of Sahyogis (Class IV);
Clerks, Junior Engineers and Assistant
Engineers and they had been working for a
substantial period of time. As and when
their contracts ended, they were engaged
again through fresh contracts. Also, despite
no interference in the interim order by the
Division Bench, it was not complied with
and none of the petitioners were permitted
to function with effect from 01.04.2022 and
no payments were made to them. On
account of such willful disobedience, a
contempt petition was filed which is
pending consideration.

23. It has been argued that the nature
of appointment of the petitioners is
contractual
but
such
contractual
engagement
is
entered
into
by
the
respondent Apex level Cooperative Society
directly with the petitioners and there is no
intermediary in between, in the form of a
service
provider.
At
the
time
of
engagement of Junior Engineers and
1500 INDIAN LAW REPORTS ALLAHABAD SERIES
Assistant Engineers on contractual basis, a
security amount of Rs.50,000 to 1,00,000
had been obtained from each of them. The
said security amount deposited at the time
of
initial
engagement
has
thereafter
continued to remain with the respondents
and it has not been returned or required to
be resubmitted upon re-engagement of the
petitioners. Also, only in eight cases out of
622 contractual employees, it has been
stated that the services were not continuous
but there were breaks in their continuity.
Apart from the aforesaid eight employees,
the respondents have not been able to point
out
any
break
between
the
initial
engagement and continuance thereafter of
the rest of the employees. Such employees
who had not worked continuously, had still
been working for substantial lengths of
time of almost 20 years in some cases after
their engagement.

24. It has also been argued that the
petitioners have been working for more
than two decades although on contractual
basis.