Outsourcing In Govt Depts Must Comply With Labour Laws: Patna HC Upholds 2019 Memo Allowing Contractual Assistants To Remain In Service

The Patna High Court has directed District Magistrate of Purnea to post 22 contractual executive assistants, appointed under the Bihar Prashashanik Sudhar Mission (BPSM) whose services were stopped due to paucity of funds, in vacant posts in other departments of the state government. In doing so the court upheld a 2019 notification as per which Executive Assistants were entitled to remain in service until 60 years of age or till the end of the scheme whichever is earlier. The court thus underscored that while the government is entitled to outsource people in government appointments however it has to ensure that outsourced employees are treated fairly and their rights are protected. Justice Bibek Chaudhuri in his order found that the petitioners were "treated differently" from other similarly placed Executive Assistants, working in the district of Ara and Araria.It further said:"I have a scrupulously gone through the pleadings of the parties. None of the respondents in their counter affidavits and supplementary counter affidavits alleged against any of the petitioners that the official functions discharged by them were not up to the mark or in other words, they are inefficient. It is not disputed that the petitioners have been performing their duties of data entry since the year 2013. If their work was found to be unsatisfactory, they or any of them could have been terminated by virtue of the government order, dated 31st July, 2019, but the respondents did not take any such step against the petitioners. The petitioners were appointed under the extant rules applicable in the year 2013. At the risk of repetition, it is stated that their conditions of service was greatly modified, nay changed, by virtue of notification, dated 31 July, 2019. Subsequently, in the year 2021, the State Government decided to man data centres in various government departments of the State of Bihar through outsourcing. 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".The court thus upheld a 2019 government memo permitting the executive assistants to perform services till the age of 60 year or till the end of the BPSM under which they were appointed whichever is earlier. The court also quashed a 2021 memo wherein the DM Purnea sent the petitioners names to Bihar State Electronics Development Corporation Ltd (BELTRON) for taking appropriate action, instead of absorbing the petitioners in other vacant posts. “it is declared that the petitioners are entitled to perform their duties as Executive Assistants on the basis of notification, contained in Memo No. 436, dated 26th February, 2019 till the attainment of 60 years of age or till the end of the scheme, whichever is earlier”.BackgroundThe petition was filed by 22 Executive Assistants who had been appointed in 2013 through a selection process initiated at the district level by the District Magistrate of Purnea. Initially engaged on a one-year contract, their services were extended periodically. They were posted at various government hospitals under the District Health Society and continued working until February 2021, when their services were returned to the District Magistrate due to “paucity of funds”.The DM instead of placing the petitioners in vacant posts in other departments, sent their names to BELTRON for further action. The petitioners argued that this was against the 2019 memo. They also claimed that similarly placed Executive Assistants in districts like Ara and Araria were adjusted in other departments, and denying them the same treatment was discriminatory.The State government took the stand that recruitment was now being done through BELTRON, and the petitioners' names were only forwarded for selection as per the new system. It also said that the petitioners were appointed on a contractual basis and were never promised permanent jobs.The Court, however, noted that the petitioners were selected through a proper process by a committee headed by the District Magistrate and had been working continuously since 2013. Referring to the terms of the 2019 notification, the Court noted, “Their initial appointment was made for a period of one year but subsequently, their tenure of service was extended till attainment of age of 60 years or completion of the project, whichever is earlier.”It further pointed out that the government's own documents extended the petitioners' service under this scheme and did not contain any provision for their removal on grounds such as a change in recruitment model through BELTRON. The court held that once the State had accepted and implemented the 2019 notification, it was bound by it unless expressly repealed or substituted.The Court also observed that the state had not disputed the...

Outsourcing In Govt Depts Must Comply With Labour Laws: Patna HC Upholds 2019 Memo Allowing Contractual Assistants To Remain In Service

Bhavya Singh

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