# Sanyukt Swasthya Outsourcing/Samvida Karmchari Sangh, U.P v. State of U.P. & Ors

- **Citation:** (2022) 6 ILRA 220
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-27
- **Case number:** Writ-C No. 22404 of 2021
- **Bench:** Surya Prakash Kesarwani, Vikas Budhwar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sanyukt-swasthya-outsourcing-samvida-karmchari-sangh-u-p-v-state-of-u-p-ors-48655
- **Pages:** 30

## Headnote

C.S.C., Sri Manish Goel(Addl. A.G.), Sri Brajesh
Kumar Dwivedi, Sri Pradeep Kumar Tripathi, Sri
M.C.
Chaturvedi
(Sr.
Adv.),
Sri
Saurabh
Srivastava, Smt. Subhash Rathi (Addl. C.S.C.)

A. Civil Law - Equal Remuneration Act,
1976 - Minimum Wages Act, 1948 - Code
on
Wages,
2019
-
Section
1(3)
-
International
Covenants
of
Economic,
Social and Cultural Rights 1966 - Article 7
- GO dated 31.12.2015, 28.03.2018 -
Citizen's right to live with human dignity -
Fixation of uniform honorarium/ minimum
pay - Outsourcing of manpower on
contractual basis - Non-adherence of the
GOs - Discrepancies and the differential
treatment in the matter pertaining to
grant of remuneration to the outsourced
employees - Legality challenged - India
as a democratic and socialist country
became a signatory of the covenant of
1966 - Effect - Payment of regular payscale - Entitlement - Held, the State being
a model employer cannot act in such a
manner, which not only creates disparity
or tantamount to encourage differential
treatment in the matter of payment of
remuneration, which might be in the form
of honorarium as well as in the matters of
working conditions - Payment of the
remuneration
should
be
as
per
the
Minimum Wages Act, 1948 and working
conditions
should
include
number
of
working hours, days of working, maternity
leave etc. - High Court issued directions.
(Para 7, 19, 21, 22, 28, 29, 32, 34 and 36)
Writ petition partly allowed (E-1)
List of Cases cited :-

## Text

_Characters 0–39,684 of 89,210. This is a partial read: ask again with offset=39684 for what follows._

220 INDIAN LAW REPORTS ALLAHABAD SERIES
(2022)06ILR A220
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.05.2022

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE VIKAS BUDHWAR, J.

Writ-C No. 22404 of 2021

Sanyukt Swasthya Outsourcing/Samvida
Karmchari Sangh, U.P. ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Ajay Kumar Srivastava, Sri Ravindra Singh

Counsel for the Respondents:
C.S.C., Sri Manish Goel(Addl. A.G.), Sri Brajesh
Kumar Dwivedi, Sri Pradeep Kumar Tripathi, Sri
M.C.
Chaturvedi
(Sr.
Adv.),
Sri
Saurabh
Srivastava, Smt. Subhash Rathi (Addl. C.S.C.)

A. Civil Law - Equal Remuneration Act,
1976 - Minimum Wages Act, 1948 - Code
on
Wages,
2019
-
Section
1(3)
-
International
Covenants
of
Economic,
Social and Cultural Rights 1966 - Article 7
- GO dated 31.12.2015, 28.03.2018 -
Citizen's right to live with human dignity -
Fixation of uniform honorarium/ minimum
pay - Outsourcing of manpower on
contractual basis - Non-adherence of the
GOs - Discrepancies and the differential
treatment in the matter pertaining to
grant of remuneration to the outsourced
employees - Legality challenged - India
as a democratic and socialist country
became a signatory of the covenant of
1966 - Effect - Payment of regular payscale - Entitlement - Held, the State being
a model employer cannot act in such a
manner, which not only creates disparity
or tantamount to encourage differential
treatment in the matter of payment of
remuneration, which might be in the form
of honorarium as well as in the matters of
working conditions - Payment of the
remuneration
should
be
as
per
the
Minimum Wages Act, 1948 and working
conditions
should
include
number
of
working hours, days of working, maternity
leave etc. - High Court issued directions.
(Para 7, 19, 21, 22, 28, 29, 32, 34 and 36)
Writ petition partly allowed (E-1)
List of Cases cited :-
1. Gujarat Majdoor Sabha & ors. Vs St. of Guj.;
2020(10) SCC 459
2. Civil Appeal No. (S) 3153 of 2022; Maniben
Maganbhai Bhariya decided on 25.4.2022
3. St. of Punj.Vs Jagjit Singh; 2017(1) SCC 148
4. Sabha Shanker Dube Vs Divisional Forest
Officer & ors. 2019(12) SCC 297
(Delivered by Hon'ble Vikas Budhwar, J.)

1. Heard Sri Anay Kumar Srivastava,
learned counsel for the petitioner, Sri
Manish Goel, Addl. Advocate General,
assisted by Smt. Subhash Rathi, learned
Addl. Chief Standing Counsel for the Staterespondent, Sri M.C. Chaturvedi, learned
Senior Advocate, assisted by Sri Pradeep
Kumar Tripathi, appearing for Respondent
no.5.

2. Alleging disparity and differential
treatment, the petitioner, who claims itself
to be the registered union of unorganized
sector has filed the present petition under
Article 226 of the Constitution of India
seeking the following reliefs:

"a) Issue a writ, order or direction in
the nature of Certiorari quashing all the
tenders issued by respondent nos. 9 to 80 in
violation of G.O. dated 07.12.2020 and
23.04.2020.

b). Issue a writ, order or direction in
the nature of Certiorari 10 quashing the
order
dated
24.11.2020
passed
by
respondent no. 6.
6 All. Sanyukt Swasthya Outsourcing/Samvida Karmchari Sangh, U.P. Vs. State of U.P. & Ors. 221

c). Issue a writ, order or direction in
the nature of Mandamus directing all the
respondents to follow the Government
orders and not to issue tenders in violation
of G.O. dated 23.04.2020.

d). Issue a writ, order or direction in
the nature of Mandamus commanding the
respondents
to
provide
similar
honorarium/payment to all the employees
and do away with the anomalies in payment
for the employees of the same rank and
work.

e).Issue a writ, order or direction in
the nature of Mandamus to not to interrupt
the
continuity
of
already
working
employees
in
terms
of
G.O.
dated
18.12.2019
and
18.08.2020
and
25.08.2020.

f). Issue any other writ, order or
direction which this Hon'ble Court may
deem fit and Circumstances of the case.

g). award the cost of the petition to the
petitioner."

3. The factual matrix as worded in the
writ petition is that the petitioner being
Sanyukt Swasthya Outsourcing / Samvida
Karmchari Sangh, U.P. Lucknow, claims
itself to be a union of contractual
employees registered under the provisions
contained under The Trade Union Act,
1926 Kanpur, Uttar Pradesh. According to
the petitioner, State of Uttar Pradesh came
up with a policy decision in the shape of
Government
Order
dated
31.12.2015
addressed to the Director General, Medical
Health
Services,
U.P.
at
Lucknow
providing for outsourcing of the manpower
on contractual basis from Respondent no.7
being
Avani
Paridhi
Energy
and
Communications Private Limited and M/s
Rama InfoTech Private Limited, Fazalganj,
Kanpur. In continuation of the Government
Order dated 31.12.2015, on 28.3.2018,
another Government Order was issued,
whereby
the
applicability
of
the
Government Order dated 31.12.2015 was
extended for a further period of 6 months.
Eventually,
the
application
of
the
Government Order dated 31.12.2015 for
the purposes of procurement of manpower
through outsourcing was extended on
5.11.2018,
31.12.2018
and
8.3.2019.

4. Ministry of Commerce and
Industry, Government of India, with the
objective to create an open and transparent
procurement platform for Government
buyers created an online platform for
public procurement in India by the name
and nomenclature of Government India eMarket Place (GeM).

5. The above noted online platform
was created to facilitate online procurement
of
goods
and
services.
Further
the
purchases
through
GeM
portal
by
Government users had been authorized and
made mandatory by the Ministry of
Finance by adding a new Rule no. 149 in
the General Financial Rules, 2017. The said
initiative was launched on 9.8.2016 by the
Ministry of Commerce and the Industry,
Government of India with the prime object
to increase transparency, efficiency, speed
in public procurement. Though the online
platform (GeM Portal) was launched on
9.11.2016 by the Ministry of Commerce
and
Industry,
Government
of
India,
however, State of Uttar Pradesh by virtue
of
the
Government
Order
no.
8/2019/20/1/91Ka-2/2019 dated 18.12.2019
came up with a policy decision that for the
purposes of procurement of manpower
through outsourcing and the same would be
done by virtue of the online platform being
Government
e-Market
Place
(GeM).
222 INDIAN LAW REPORTS ALLAHABAD SERIES
However, due to the sudden surge of the
pandemic relating to COVID-19, the same
could not be implemented and accordingly
on 23.4.2020, a clarification was issued by
the
Respondent
no.1,
whereby
the
applicability and the procurement of the
manpower through outsourcing by online
mode through GeM Portal was deferred.
On 18.8.2020, the State of Uttar Pradesh
issued a Government Order addressed to all
the Additional Chief Secretaries / Principal
Secretaries / Secretaries, U.P. Shashan and
all
the
District
Magistrates
posted
throughout the State of U.P. coming up
with a policy that the Government Order
dated 18.12.2019 providing for outsourcing
of the manpower through GeM Portal is
being implemented forthwith. Thereafter,
on 25.8.2020, another Government Order
was issued by the State of Uttar Pradesh,
whereby for purchases of goods and
services of the Government Departments
and its subsidiary, use of GeM Portal had
been made mandatory and the Government
Order dated 18.12.2019 was directed to be
implemented strictly. The relevant extract
of Clause-2(4), (5), Clause 3(6), (7) and
Clause 6 are being quoted hereinunder:

"2. ....

4- उि श सि देश के प्रस्तर-3 (4) के
अिुस र जेम के म ध्यम से ही आउटसोवसिंि
कमी िेिे की अविि ययत वकये ज िे से
ितयम ि में क यय कर रहे कवमयोां की
विरन्तरत ि वधत िहीां की ज येिी। ितयम ि
में क यय कर रहे आउटसोसय कवमयोां को ही
जैम पोटयि द्व र चयवित सांि प्रद त ओां द्व र
रि ज येि । इस हेतु क ययरत कमयच ररयोां
की सेि के सम्बन्ध में सांतुष्ट प्रम ण पत्र िेत
विभ ि द्व र सेि प्रद त को उपिब्ध कर य
ज येि । केिि ििीि कवमयोां क चयि
सेि योजि पोटयि से ही अविि यय रूप से
वकय ज येि ।

5- उि श सि देश के प्रस्तर-4 (1) के
अिुस र क वमयकोां को वििम्ब से भुित ि को
रोकिे
के
विए
िेत
विभ ि
द्व र
आउटसोवसिंि एजेन्सी को उपिब्ध कर यी
ियी धिर वश पर 18 प्रवतशत ब्य ज ि
पेि ल्टी िि यी ज येिी।"

"3-...

6. वकसी भी विभ ि द्व र वकसी
िुणित्त पूणय सेि के विये कवमयोां को वकति
म िदेय देय होि इसक विणय सांिांवधत
विभ ि, विवभन्न सुसांित वित्तीय वियमोां के
अिुरूप एिां श्रम विभ ि के न्यूितम िेजेज
के अिुस र करेि , जो वक ितयम ि में
क वमयकोां को प्र प् हो रहे म िदेय से कम
अिुमन्य िहीां होि । श्रम सांविद वियम ििी
सप् वहक, र जकीय म तृत् आवद अिक श
एिां क यय के घण्टे जैसे वियमोां क अिुप िि
कुर िे की वजम्मेद री िेत विभ ि की होिी।

7. सेि प्रद त द्व र EPF, ESI & GST
आवद की कटौती Service Level Agreement
(SLA) के
 अिुस र की ज येिी, िेत विभ ि द्व र
इसक अिुप िि सुविवित कर य ज येि ।"

"6- जेम पोटयि से सेि िय करिे की
प्रविय पूणय करिे में कम से कम 15 वदि क
समय िित है। सम्बखन्धत विभ ि सेि की
आिश्यकत िुस र यह सुविवित करेिे वक
ितयम ि में चि रहे अिुिांध सम प् होिे के
कम से कम एक म ह पूिय ही मैिप िर सेि
िय की जेम पोटयि पर प्रविय प्र रम्भ कर
देंिे, त वक श सकीय क यय में व्यिध ि उत्पन्न
ि हो । सेि िय करिे ि िे विभ ि को पूिय
में श सि देश सांख्य -11/2017/523/18-2-2017
970 30 )/2016 वदि ांक 23.08.2017 के
म ध्यम से स्पष्ट वकय ज चुक है वक उिके
द्व र अपिी आिश्यकत ओां को जोि, मण्डि,
जिपद अथि वकसी अन्य ििीकरण के
6 All. Sanyukt Swasthya Outsourcing/Samvida Karmchari Sangh, U.P. Vs. State of U.P. & Ors. 223
आध र पर टुकड़ोां में िहीां विय ज येि ,
अवभप्र य यह है वक िेत विभ ि को वजि
कवमयको की आिश्यकत होिी उिको जेम
पोटयि के म ध्यम से एक ही विड की ज येिी,
वजससे सुदृढ एि सक्षम सेि प्रद त क चयि
हो सके।"
6.
Thereafter
on
7.12.2020,
another
Government Order was issued stipulating
the
modalities
for
procurement
of
manpower through sealed bids. Clause 3(i),
(ii)
of
the
said
order
are
quoted
hereinunder:
"3. जैम पोटयि से मैिप िर आपूवतय के सांिांध
में उपयुि श सि देश में उखल्लखित व्यिस्थ
से विचिि कद वप ि वकय ज य और
विम्नविखित विन्दुओां पर विशेर् ध्य ि देते हुये
पूणय प रदवशयत िरती ज य-
(i) विभ ि द्व र अपिी आउटसोवसिंि म िि
सांस धि की सकि आिश्यकत को वचखित
कर जेम पोटयि की "िन्च विविद " विवध से
एक ही विविद द्व र की ज य, वजससे सक्षम
सेि प्रद त क चयि हो सके।
(ii) ई०एम०डी० क विध यरण श सि देश
वदि ांक 25.08.2020 में दी ियी व्यिस्थ के
अिुस र वकय ज य और इसमें वकसी प्रक र
की छूट य वशवथित उकृत श सि देश की
व्यिस्थ
के
विपरीत
ि
दी
ज य।
ई०एम०डी०/एफ०डी०आर० जम करिे के
सांिांध में आई०टी० एिां इिेक्ट्र विक्स विभ ि
केश सि देश
सांख्य -1/2018/3070/78-22018/42 आई0टी0/2017 (22), वदि ांक 03-012018 विियत है। इसमें उखल्लखित व्यिस्थ के
अिुस र ही क ययि ही की ज य।"

7. Petitioner herein alleging nonadherence of the Government Order
issued from time to time in the matter of
procurement
of
manpower
through
outsourcing had filed the above noted
writ
petition
with
the
following
grievances:

(a).
Despite
specific
stipulation
contained in the Government Order dated
18.12.2019, as followed from time to time
and the Government Order dated 7.12.2020
providing that the procurement of the
manpower through outsourcing is to be
resorted to by a single integrated tender for
the entire State of Uttar Pradesh and not
either district-wise or cluster-wise, the
online tenders are being floated through
GeM portal either district-wise or clusterwise,
resulting
in
disparity
between
outsourced employees in one district vis-avis others in the matter of honorarium and
working condition.

(b). Government Order so issued on
18.12.2019 as followed on 25.8.2020
provides for non-interruption of their
engagement, then too without there being
any deficiency in the services rendered by
the members of the petitioner-Association,
their engagement has been set at naught.

8. This Court on 4.10.2021, while
entertaining the present writ petition,
passed the following orders:

"4.10.2021

The prayer made in this petition can
appropriately be addressed after receipt of
counter affidavit as the petitioner has
challenged the tender issued by the
respondent nos. 9 to 80 as violative of
Government Orders dated 7.12.2020 and
23.4.2020.

Learned
Standing
Counsel
has
accepted notice on behalf of respondent
nos. 1 to 4, 6 and 8 to 80; Sri B.K. Tripathi
has
accepted
notice
on
behalf
of
respondent no. 5.
224 INDIAN LAW REPORTS ALLAHABAD SERIES

Let notice be issued to respondent
no.7 fixing 15.11.2021.

Steps be taken within one week
through registered speed post.

List as fresh on 15.11.2021, by which
date, respondents shall file their respective
counter affidavit."
9. On 15.11.2021, this Court noticed the
discrepancies and the differential treatment
so made in the matter pertaining to grant of
remuneration to the outsourced employees
engaged by the service provider through
GeM portal and after bestowing anxious
consideration to Annexure-6 at page-70,
which happened to be the relevant extract
of the advertisement so loaded on GeM
portal
sought
response
from
the
respondents. The order passed by this
Court
on
15.11.2021
is
quoted
hereinunder:-

"Heard Sri Anay Kumar Srivastava,
learned counsel for the petitioner, Sri M.C.
Chaturvedi learned Additional Advocate
General assisted by Sri P.K. Tripathi,
learned Standing Counsel for respondent
no. 5 and Sri Saurabh Srivastava, learned
counsel for respondent nos. 1, 2, 3, 4 and 6.

The learned counsel for the petitioner
submits that the petitioners are not
challenging the engagement of other
employees working on various posts by
outsourcing through GEM portal. Their
entire objection is that since e-tenders have
been invited through GEM portal to engage
persons through outsourcing either districtwise or cluster-wise and different jobs are
being given by the service provider in
different
districts/clusters,
which
has
resulted
in
disparity
between
the
outsourced employees of one district than
that of the other district. In other words,
outsourced employees engaged by a service
provider in district 'A' is getting Rs.
10,000/- for a particular job while
outsourced employees for the same job of
district 'B' kept by the other service
provider, is getting Rs. 12,000/-. Therefore,
the Government being a model employer
cannot
discriminate
between
the
outsourced employees for the same work in
one district and the outsourced employees
for another district in the same department.
This violates the basic principle of equality
enshrined in the Constitution on one hand
and on the other hand, unemployed youths
of the unorganized service sector are
placed in a very disadvantageous position.
Attention has been drawn to bid documents
in which the lowest bid for the job as Ward
Aaya/Ward Boy is Rs.7,500/- per month.
The engagement is for a period of 9
months. The work is being taken for 7 days
in a week and there is no leave admissible
to them. Thus, per day wages comes to Rs.
250/-. Therefore, the modus operandi being
operated by the State Government for
engaging the employees by outsourcing
through GEM portal is nothing but a
glaring
example
of
exploitation
of
employees of unorganized service sector,
particularly youths who have no option but
to work on the terms and condition dictated
by the service providers and as per bid
made by them.

Matter requires consideration.

Let counter affidavits be filed by
means of personal affidavit separately by
the respondent nos. 1, 2, 3 and 4.

Put up this case as fresh for further
hearing on 01.12.2021."

10. Pursuant to the order dated
15.11.2021, passed by this Court as
extracted hereinabove, a counter affidavit
6 All. Sanyukt Swasthya Outsourcing/Samvida Karmchari Sangh, U.P. Vs. State of U.P. & Ors. 225
was filed by Respondent no.4/ Director
General, Medical and Health Services, U.P.
at
Lucknow,
sworn
on
17.12.2021,
wherein in paragraph-3, 4, 5, 6 & 7, the
following averments were made:

"3.
That
in
compliance
of
the
aforesaid directions of this Hon'ble Court,
a committee has been constituted, headed
by Director General, Medical & Health
Services, U.P. Lucknow on 07.12.2021 in
which the matter of fixation of uniform
honorarium/minimum
pay
has
been
considered. Considering the anomalies in
respect of honorarium, it has been revealed
that there are individuals engaged against
the sanctioned and created posts in the
medical units. In spite of these, other
individuals
who
are
engaged
under
National Health Mission, their honorarium
has been fixed according to the guidelines
of the Government of India. The committee
also found that one more reason for
difference in the honorarium paid against
the similar posts in the medical units, is
that there has been non uniformity in the
procedure of procurement of services and
as such there was difference in the bids for
the honorarium as provided by the different
Outsourcing Agencies. In addition to
above, it has also been found that different
districts were engaging the individuals on
contractual basis at district level also and
for that reason also there were certain
differences in extending the honorarium to
the individuals. The copy of the minutes. of
meeting dated 07.12.2021, is being filed
herewith and marked as ANNEXURE NO.
1 to this personal affidavit.

4. That in pursuance of the aforesaid
facts as stated above as well as the
provisions as contained under para. 4 of
the office order dated 07.12.2021, issued by
the Secretary, State of U.P., Lucknow, the
Committee also considered the guidelines
for engaging individuals via outsourcing
through
Government
E-Market
Place
(GEM)
in
the
Medical
&
Health
Department for bidding, divided in six
clusters for selection of service providing
agencies. The committee also decided
unanimously for procurement of manpower
through
outsourcing
agencies
for
skilled/semi-skilled/un-skilled, it has been
decided to pay the minimum honorarium to
the individuals against the similar posts.
The copy of the Letter No. 630-37
pravartan-(M.W.)/15
dated
08.10.2021,
which fixed the minimum wages for
skilled/semi-skilled/un-skilled manpower is
being
filed
herewith
and
marked
ANNEXURE NO. 2 to this personal
affidavit.

5. That the Secretary, Government of
Uttar
Pradesh,
Lucknow
vide
its
Government Order no. 1094(1)/Panch-12021 dated 21.11.2021 issued certain
guidelines
in
compliance
of
the
Government Order dated 25.08.2020 and
07.12.2020 for purchasing the manpower
through outsource agencies. Copy of the
Government Order no. 1094(1)/Panch-12021 dated 21.11.2021 is being filed
herewith and marked as ANNEXURE NO.
3 to this personal affidavit.

6. That the Secretary, Government of
Uttar Pradesh, Lucknow vide its Office
Order
no.
W-68/Panch-1-2021
dated
07.12.2021 issued certain guidelines for the
purchasing
the
manpower
through
outsourcing agency for introducing the
Government
E-Market
Place
(GEM)
developed by Government of India. Copy of
the Office Order no. W 68/Panch-1-2021
dated 07.12.2021 is being filed herewith
and marked as ANNEXURE NO. 4 to this
personal affidavit.
226 INDIAN LAW REPORTS ALLAHABAD SERIES

7. That in addition to above the
Respondent no. 4 i.e. Director General,
Medical & Health Services, U.P. Lucknow
issued the standing instructions to all the Chief
Medical Superintendents as well as Chief
Medical Officers of entire State of U.P. to
provide honorarium as per the minimum wages
as fixed by the Labour Department of U.P. vide
its Office Order no. dated 13.12.2021. Copy of
the Office Order dated 13.11.2021 is being filed
herewith and marked as ANNEXURE NO. 5 to
this personal affidavit."

11. Perusal of the averments made in the
counter affidavit so filed by Respondent no.4
sworn on 17.12.2021 as referred to above
reveals that a committee was constituted by the
Respondents headed by Respondent no.4 being
Director General, Medical & Health Services of
U.P. on 7.12.2021 in the matter of fixation of
uniform honorarium / minimum pay. It has
been further averred that the committee
found
the
anomalies
in
respect
of
honorarium. The averments contained in the
counter affidavit further reveals that the
honorarium paid to the outsourced employees
should be as per the minimum wages as fixed
by the Labour Department of the State of U.P.
12. A counter affidavit was also
filed by Respondent no.5 sworn on
16.12.2021 coming with the stand that the
Respondent no.5 happens to be Uttar
Pradesh Medical Supplies Corporation
Limited, which is an undertaking of the
Government of Uttar Pradesh (Government
Company
incorporated
under
the
Companies Act, 2013) and is a nodal
agency created pursuant to the Government
Order dated 3.10.2017 to procure drugs,
medical equipments and other health care
commodities and services for its supplies to
various Government Hospitals and Health
Care units through out the State of U.P. On
11.3.2022, a personal affidavit was filed by
Respondent no.1 (State of U.P. through its
Additional Chief Secretary, Medical and
Health
Services,
U.P.
at
Lucknow),
wherein in paragraphs- 6 to 11, the
following averments were made:-

"6. That it is relevant to submit here
that the Medical and Health Department
select the service provider agencies for
supplying
the
manpower
through
outsourcing in the Health Department and
its supporting office vide GEM Portal and
the service provider agency follow the
different Government Orders/Directions
issued from time to time by the State
Government/Micro, Small and Medium
Entrepreneur (hereinafter referred to as
"the MSME")/Labour Department. The
Medical and Health Department also
follows the guidelines when the service
provider was selected through the GEM
Portal to supply the manpower through
outsourcing.

7. That in the Government Order No.
31/2020/273/18-2-2020-97(ि0उ0)/2016
टी0सी0 dated 25.8.2020 by Micro Small and
Medium Entrepreneur, Anubhag-2 it has
been provided that how much ''Mandeya'
(म िदेय) is to be provided by the department
for the qualitative services rendered by the
employees. The concerned department take
decision as per relevant financial Rules of the
Department and as per minimum wages
settled by the Labour Department and this
''Mandeya' (म िदेय) will not be less than the
''Mandeya'
(म िदेय)
received
by
the
employees at present. Likewise as per labour
contract Rules for providing weekly, state
holidays, maternity leave and hours of
working the duty of the compliance of Rules
will be that of the ''Kreta' (िेत ) Department.
It is relevant to state here that vide letter dated
8.10.2021 the minimum wages as applicable
6 All. Sanyukt Swasthya Outsourcing/Samvida Karmchari Sangh, U.P. Vs. State of U.P. & Ors. 227
from 1.10.2021 to 31.3.2022 has been stated
as hereinafter mentioned:-
dzम ां
क
izfrek
g
izfrekg
मूि
मजदूरी
रूपये में
पररितयिीय
मांहि ई
भत्त
रूपये में
वदि ां
क1.4.
2021
से
20.9.2
021
दिन ां
क
01.1.2
021
से
30.09.
2021
तक
वदि ांक
01.10.2
021 से
31.03.2
022
तक

कुि
मजदू
री
(रूपये
में)

दैवि
क
मज
दूरी
(रू
पये
में)
1
2
3
4
5
6
7
1
अकु
शि
5750
3328
3434
9184
353
.23
2
अधय
कुश
ि
6325
3660
3777.29 10,10
2,.29
389
3
कुश
ि
7085
4100
4231.16 11316
.16
435
.23

Copy of the letter No. 630-37Pravartan-M.W.)/15 dated 8.10.2021 is
already been annexed as Annexure No. 2 to
the personal affidavit of respondent no. 4
and it is being annexed herewith the
present personal affidavit. A copy of the
personal affidavit filed by respondent no. 4
is being filed herewith and marked as
Annexure No. 1 to this affidavit.

8. That it is relevant to submit here
that
vide
Government
Order
No.
42/2020/ई-153 /18-2-2020-97(ि0उ0)/2016
टी0सी0 dated 07.012.2020 issued by Micro
Small and Medium Entrepreneur (MSME),
Anubhag-2 para 4 it has clearly been stated
that after the finalization of tender vide
GEM portal to maintain control over the
Service provider the liability will be that of
the head of the department so that the
service provider company may not harass
or exploit the employees out sourced
employee. In para 6 of the Government
Order it has also been provided that in the
State the relevant Government Orders have
to be strictly complied with so far
manpower
outsourcing
is
concerned.
Photostat copy of the Government Order
dated 7.12.2020 is being filed herewith and
marked as Annexure No. 2 to this affidavit.
9. That to fix the ''Mandeya' (म िदेय) of the
outsourcing employees of the medical and
health department the consideration prima
facie is to be made with regard to minimum
wages
as
decided
by
the
labour
department, the relevant Financial Rules
and thereafter the head of the department
fixed the ''Mandeya' (म िदेय) as per
minimum wages of the labour department
and as per relevant Financial Rules with
the service provider agency. So far as the
leave and working hours are concerned the
relevant Government Orders and the
criteria
as
settled
by
the
Labour
Department is concerned.
10. That regarding the service benefits of
the outsource employees the Government
Orders issued by the MSME Department
are considered by the head of the
department and accordingly are complied
with and as has already been stated in the
affidavit filed on 16.12.2021 in pursuant to
order
of
this
Hon'ble
Court
dated
15.11.2021. The minimum wages are paid
228 INDIAN LAW REPORTS ALLAHABAD SERIES
to the outsource employee as per minimum
wages settled by the Labour Department.
11. That it is pertinent to relevant to state
here that so far as the procurement of
manpower services are concerned it is
being done vide GEM remuneration to be
paid to different classes of inductees/man
power by the service provider is concerned,
model conditions of engagement of manpower,
through
working
hours
and
leave/holidays are concerned different
Government Orders are being postulated
by the Labour Department and Micro
Small
and
Medium
Entrepreneur,
Anubhag-2 but as this Hon'ble Court has
stated that

"Entire scheme for procurement of
man-power service and matters relating
thereto be reduced in writing in one
comprehensive Government Order/policy
decision and copy thereof be filed along
with the counter affidavit."

It is humbly submitted that the
aforesaid is not within the jurisdiction of
Medical and Health and Family Welfare
Department
rather
the
relevant
department/party is the ''Additional Chief
Secretary, Department of Appointment and
Personnel, Government of Uttar Pradesh'
and this party has not been impleaded by
the petitioner. It may kindly impleaded so
that proper policy decision/the Government
Order is being framed. It is submitted that
vide GEM Portal different departments out
source employees and one department i.e.
the answering respondent cannot governed
all
vide
framing
policy
decision/Government
Orders.
It
is
competent authority as stated aforesaid
who is responsible to frame policy decision
to be followed to be followed by all the
departments. The deponent files the present
affidavit
with
unconditional
and
unqualified apology. The deponent is a law
abiding citizen and ready to comply with
order of this Hon'ble Court as and when
directed by this Hon'ble Court."

13. On 11.3.2022, this Court passed
the following orders relevant extract
whereof is being quoted hereinunder:

"... Since, prima facie, discrimination
is being made by the Medical and Health
Services Department between the outsource
employee in one district and outsource
employee in another district for the same
work in the same department and even our
orders are not being complied with on one
pretext or the other, therefore, we are left
with no option except to call upon the Chief
Secretary of the State of U.P. to look into
the matter and to file his personal affidavit
in response to the orders dated 15.11.2021
and 22.02.2022, within three weeks.

As prayed by the learned Additional
Chief Standing Counsel, put up this case as
a fresh case for further hearing on 8th
April, 2022."
14. A personal affidavit has been filed
by the Chief Secretary, State of Uttar
Pradesh
on
8.4.2022,
wherein
the
following averments have been made:

"4. That in pursuant to the order of this
Hon'ble Court dated 11.3.2022 a meeting
was organized under the Chairmanship of
Chief Secretary, Uttar Pradesh Shashan,
Lucknow on 23.3.2022 decisions were
taken and in pursuant to directions, the
decisions
taken
by
Director
General
Medical and Health Services, Uttar Pradesh
Shashan dated 1st April 2022. Details and
comparative information were sought by
the officers and employees who are being
paid ''Mandey'. The detail and comparative
status being carried out regarding the
6 All. Sanyukt Swasthya Outsourcing/Samvida Karmchari Sangh, U.P. Vs. State of U.P. & Ors. 229
person's employer as per ''Jan Shakti' and
i.e. who are working under the minimum
Mandey
as
fixed
by
the
Labour
Department. The letter issued by Director
General, Medical and Health Services,
Uttar Pradesh, Lucknow written to the
Secretary, Medical Health and Family
Welfare
Department
Uttar
Pradesh
Shashan Chikitsa Anubhag-1 dated 1st
April 2022. A copy of the letter dated
1.4.2022 issued by Director General,
Medical
and
Health
Services,
Uttar
Pradesh, Lucknow written to the Secretary,
Medical Health and Family Welfare
Department
Uttar
Pradesh
Shashan
Chikitsa Anubhag-1 is being filed herewith
and marked as Annexure No. 2 to this
affidavit.

5. That the facts included in the letter
dated
1.4.2022
are
as
hereinafter
mentioned:

"...........मुख्य
सवचि
महोदय
की
अध्यक्षत में वदि ांक 23.03.2022 को हुई
िैठक के
 क ययिृत्त में वदये िये विदेशोां के dze में
आउटसोवसिंि से विये ज िे ि िे वभन्न-वभन्न
प्रक र की
 जिशखि के विए म िदेयोां क विध यरण हेतु
विस्तृत सूचि

पररवधित अवधक ररयोां से प्र प् कर
तुिि त्मक अध्ययि एिां Je विभ ि द्व र
विध यररत न्यूितम म िेदय पर आध ररत है।
यह भी अिित कर ि है वक आउटसोसय के
म ध्यम से भरे ज िे ि िे उिीां सम्बखन्धत पदोां
की सूचि दी ज रही है वजिक म िदेय
भुित ि र ज्य िजट से वकय ज त है। इस
सूचि में सेि रत क वमयकोां के म िदेय में
ई०पी०एफ०,
ई०एस०आई०.
सवियस
च जय
इत्य वद आिवणत िहीां है, इि िैध विक मदोां
क भुित ि सरक र द्व र समय-समय पर
विध यररत दरोां के कम में वियम िुस र वकय
ज येि । उि प्रस्त वित / आांकवित दर
यथ शीघz विध यररत कर उ०प्र० मेवडकि
सप्ल ई क पोरेशि द्व र िवतम ि आउटसोसय
क वमयकोां की किस्टरि र विविद प्रविय की
क ययि ही पूणय होिे/ वकय खित होिे के
उपर न्त ि िू वकय ज येि ।"

A copy of the letter along with
documents annexed with the letter dated
1.4.2022 is being filed herewith and
marked as Annexure No. 3 to this affidavit.
6. That in the matter in question the
information/proposal
provided
by
the
Director General Medical and Health
Services, U.P. Lucknow vide letter dated
1.4.2022 regarding the post taken vide
outsourcing under Medical Health and
Family
Planning
Department,
Uttar
Pradesh was accepted by the Government
and rate of ''Mandey' was fixed of
outsource employees vide Government
Order
No.
119/PANCH-1-2022
dated
5.4.2022 was issued. Hence after taking
into consideration the letter dated 1.4.2022
by the Director General Medical and
Health Services, Uttar Pradesh, Lucknow
decision taken in the meeting and the
information/proposal has accepted by the
Government/State of U.P. the Government
Order dated 5.4.2022 was issued fixing the
uniform rates of Mandey of outsource
employees in the State. Photostat copy of
the Government order dated 5.4.2022 is
being filed herewith and marked as
Annexure No. 4 to this affidavit.
7. That the minimum Mandey was fixed
vide the policy decision dated 5.4.2022 is
as hereinafter mentioned:
230 INDIAN LAW REPORTS ALLAHABAD SERIES

".............के
अिुप िि
में
वदि ांक
23.03.2022 को मुख्य सवचि, उ०प्र० श सि की
अध्यक्षत में सम्पन्न िैठक, वजसमें श्रम, क वमयक
तथ सुक्ष्म िघु एिां म ध्यम उद्यम विभ ि िे भी
प्रवतभ ि वकय में विणय विय िय वक वचवकत्स
स्व स्थ्य एिां पररि र कल्य ण विभ ि के अधीि
सभी सांििय, जो आउटसोवसिंि से रिे ज ते हैं की
सूची िि यी ज ए। तदोपर न्त हर सांििय में जो
अवधकतम म िदेय वकसी भी जिपद में वदय ज
रह हो, उसी को सभी जिपदोां में ि िू वकय
ज ए वकन्तु यवद वकसी जिपद में वकसी पद
विशेर् के विए िहुत अवधक धिर वश दी ज रही
हो, जो तकयसांित ि हो, उसे प्रदेश में एकरूप
दर विध यरण हेतु विच रण में िहीां विय ज येि ।
यह म िदेय श्रम विभ ि द्व र अकुशि,
अद्धयकुशि एिां कुशि श्रवमकोां के विए विध यररत
न्यूितम म िदेय से अवधक होि ।

4- मह विदेशक, वचवकत्स एिां स्व स्थ्य
सेि ओां के द्व र आउटसोवसिंि से विए ज िे ि िे
वभन्न-वभन्न प्रक र की जिशखि के विए दरोां के
विध यरण हेतु उपररसांदवभयत पत्र वदि ांक 01.
04.2022 द्व र उपिब्ध कर यी ियी सूचि के
तुिि त्मक अध्ययि एिां श्रम विभ ि द्व र
विध यररत न्यूितम म िदेय पर आध ररत वििरण
विम्नित् दवशयत है:
dz0सां
0
पदि
म
Js.kh Je
विभ ि
के
श सि देश
वदि ांक
08.10.2021
के अिुस र
पररिवणत
मूि म िदेय
पररवधित
अवधक ररयोां से
प्र प् सूचि ओां
के
अिुस र
अवधक ांश
वचवकत्स ियोां
में वदये ज िे
ि िे
मूि
म िदेय
स्व
स्थ्य
मह
विदे
श
िय
द्व र
प्र
स्त
वित
मूि
म ि
देय
1
2
3
4
5
6
1.
ि डय
ब्य य
ि डय
आय
अ
कु
श
ि
9184
10706.91
10
70
6.9
1
2.
चपर
सी/
अदय
िी
अ
कु
श
ि
9184
9999.83
99
99.
83
3.
सफ
ई
कमय
च री
अ
कु
श
ि
9184
9302.20
93
02.
20
4.
मल्टी
परप
स
िकयर
/म
ल्टी
ट
स्क
िकयर
अ
कु
श
ि
9184
11509.20
11
50
9.4
8
5.
कुक/
कुक
मेट/
धोिी/
म िी
अ
कु
श
ि
9184
10706.91
10
70
6.9
1
6.
प्लम
िर
अ
धय
कु
श
10102.29 11177.44
11
17
7.4
4
6 All. Sanyukt Swasthya Outsourcing/Samvida Karmchari Sangh, U.P. Vs. State of U.P. & Ors. 231
ि
7.
कम्प
यूटर
सह
यक
कम
रवज
स्टरेश
ि
क्ल
कय
कु
श
ि
11316.16 12844.51
12
84
4.5
1
8.
इिे
क्ट्री
वशय
ि
कम
जिरे
टर
आप
रेटर
कु
श
ि
11316.16 11316.16
11
31
6.1
6
9.
ि हि
च ि
क
कु
श
ि
11316.16 11779.58
11
77
9.5
8

आउटसोसय के उपरोि पदोां वजिके म िदेय क
भुित ि र ज्य िजट से वकय ज त है, के
म िदेय में ई०पी०एफ० ई०एस०आई०. सवियस
च जय इत्य वद आिवणत िहीां है, इि िैध विक
मदोां क भुित ि सरक र द्व र समय-समय पर
विध यररत दरोां के कम में वियम िुस र वकय
ज येि । उि प्रस्त वित / आांकवित दर उ०प्र०
मेवडकि सप्ल ई क पोरेशि द्व र िवतम ि
आउटसोसय क वमयकोां की किस्टरि र विविद
प्रविय की क ययि ही पूणय होिे / वकय खित होिे
के उपर न्त ि िू होिी।
5- इस सम्बन्ध में मुझे यह कहिे क विदेश हुआ
है वक श सि द्व र सम्यक् विच रोपर न्त
मह विदेश िय द्व र आउटसोवसिंि जिशखि के
उपरोि समस्त प्रकृवत के पदोां के सांिांध में
म िदेय विध यरण हेतु श्रम विभ ि की न्यूितम
दरोां के स पेक्ष उपरोि प्रस्तर-4 के त विक में
अांवकत पदोां के स पेक्ष अखन्तम स्तम्भ-6 में
प्रस्त वित म िदेय को स्वीक र कर विय िय
है। यह म िदेय उत्तर प्रदेश मेवडकि सप्ल ई
क रपोरेशि द्व र िवतम ि आउटसोसय क वमयकोां
की किस्टरि र विविद प्रविय में सखम्मवित
वकये ज येंिे तथ उि क ययि ही पूणय होिे पर
ि िू वकये ज येंिे।"
8. That the aforesaid is being decided and
preferred in view of the order of this
Hon'ble Court dated 11.3.2022 and in
pursuant to order of this Hon'ble Court, the
present personal affidavit is being filed to
the Chief Secretary, Uttar Pradesh Shashan,
Lucknow. It may kindly be accepted and
taken on record. The deponent humbly
submits with unconditional and unqualified
apology
that
after
consultation
with
concerned department and approval from
the State Government the present policy
decision dated 5.4.2022 is being taken and
for any modification/amendment or further
decision the deponent is always ready to
comply with orders of this Hon'ble Court."
15. This Court after giving anxious
consideration to the Counter Affidavit filed
by the Chief Secretary on 8.4.2022,
proceeded to pass the following orders:-

"Perusal of the personal affidavit filed
today shows that the State Government has
taken a policy decision with regard to
uniformity in scales of payment for
different kinds of outsourced employees
232 INDIAN LAW REPORTS ALLAHABAD SERIES
and outsourcing agencies. However, some
of the important aspects as reflected from
our aforequoted order dated 22.02.2022,
appears to have been left consideration.

Learned Additional Advocate General
states that the Government shall look into
all the aspects and take a uniform and
comprehensive policy decision in the light of
the order dated 22.02.2022 and while taking
the decision, shall also take note of the
principles laid down by Hon'ble Supreme
Court in the case of Gujrat Mazdoor Sabha
vs. State of Gujrat, (2020) 10 SCC 459
(paras 33 to 49). He prays that three weeks'
time may be granted.

As prayed by learned Additional
Advocate General, three weeks' time is
granted to file an affidavit annexing therewith
the government order/ policy decision. The
affidavit shall be filed by the Chief Secretary.

List/ put up in the additional cause list
for further hearing on 29.04.2022 at 02:00
P.M."

16. Eventually on 29.4.2022, a
personal affidavit has been filed by the
Chief Secretary State of Uttar Pradesh,
wherein in paragraphs- 4 to 11 the
following averments have been made:

"4. That it is relevant to state here that
in order dated 22.2.2022 passed by this
Hon'ble Court in the present matter in
question the following points are to be taken
into consideration:-

"1. Policy decision emerging from
various government orders issued from time
to time with regard to procurement of manpower services.

2. Minimum remuneration to be paid
to different classes of inductees/man-power
by the service provider.

3. Model conditions of engagement of
man-power
through
service
providers
including
working
hours
and
leave/holidays
as
reflected
in
the
Government Order dated 25.8.2020.

4. In the decision taken by the State
Government the Letter of respondent no. 4
dated
12.11.2021
shall
also
be
incorporated."
5. That in order dated 22.2.2022 the first
point is regarding the procurement of
manpower services. It is relevant to submit
here
that
regarding
procurement
of
manpower services detailed guidelines and
directions have been issued by Department
of Personnel and M.S.M.E. Department. In
the Government Order dated 18.12.2019
directions have been issued in pursuant to
E-market place GeM portal Developed by
Government of India and adopted by State
of U.P. Regarding the aforesaid points as
stated in the order of this Hon'ble Court
dated 22.2.2022 the information was
sought from Additional Chief Secretary
Medical and Health Department, U.P.
Lucknow and he has stated in detail
regarding the aforesaid four points which
are as hereinafter mentioned:

"3-1⁄411⁄2 voxr djkuk gS fd ek0 mPp U;k;ky;
ds vkns'k fnukad 22-02-2022 esa mijksDr fcUnq
la[;k&1 Procurement of man - power
service ds laca/k esa foLrq`r fn'kk funsZ'k dkfeZd
foHkkx ,oa lw{e] y?kw ,oa e/;e m|e foHkkx }kjk
tkjh fd, x, gS A dkfeZd foHkkx }kjk tkjh
"kklukns'k fnukad 18-12-2019 esa m0iz0 ds leLr
"kkldh; foHkkxksa ,oa muds v/khuLFk laLFkkvksa esa eSu
ikoj ds dz; ds fy, Hkkjr ljdkj }kjk fodflr
xouZes.V bZ&ekdsZV Iysl ] tse dh O;oLFkk ykxw fd;s
tkus ds funsZ'k fn;s x;s A blh dze esa 'kklukns'k
fnukad 25-08-2020 lw{e] y?kw ,oa e/;e m|e vuqHkkx
&2 }kjk fuxZr fd;k x;k gS] ftlesa foLr`r
fn'kk&funsZ'k ds lkFk ;g izkfo/kku fd;k x;k gS fd
izns'k ds leLr "kkldh; foHkkxksa ,oa muds v/khuLFk
laLFkkvksa@fuxeksa @midzeksa vkfn esa tse iksVZy ds
6 All. Sanyukt Swasthya Outsourcing/Samvida Karmchari Sangh, U.P. Vs. State of U.P. & Ors. 233
ek/;e ls vfuok;Z :i ls fcM ds ek/;e ls gh
eSuikoj vkmVlksflZax dh O;oLFkk dh tk;sxh lw{e]
y?kq ,oa e/;e m|e foHkkx }kjk 'kklukns'k fnukad
07-12-2020 fuxZr fd;k x;k ] ftlesa izns'k ds
"kkldh; foHkkxksa ,oa muds v/khuLFk laLFkkvksa esa
eSuikoj dh vkiwfrZ tse iksVZy ds ek/;e ls fd;s tkus
fo'k;d fuxZr 'kklukns'kksa esa fn;s x;s izkfo/kkuksa dks
dM+kbZ ls vuqikyu ds funsZ'k fn;s x;sA

fpfdRlk ,oa LokLF; foHkkx }kjk dkfeZd ,oa
,e0,l0,e0bZ0 foHkkx }kjk fuxZr "kklukns"kksa ds dze
esa "kklukns'k fnukad 21-11-2021 }kjk egkfuns"kd
fpfdRlk ,oa LokLF; lsok;sa dks funsZf'kr fd;k x;k gS
fd "kklukns'k fnukad 25-08-2020 o fnukad 07-122020 dk vuqikyu esa eSuikoj dk dz; fd;k tkuk
lqfuf'pr djsa rFkk 'kklukns'k fnukad 07-12-2021 ds
}kjk eSuikoj ds dz; ds fy, Hkkjr ljdkj }kjk
fodflr xouZes.V bZ&ekdsZV Iysl tse ds ek/;e ls
fufonk djus ds laca/k esa izns'k dks 06 DyLVjksa foHkDr
dj fpfdRlk ,oa LokLF; foHkkx esa lsok iznkrk ,stsUlh
ds p;u fd;s tkus ds funsZ'k fn;s x;s gSA