Rajasthan High Court - Jodhpur
Malay Pandya vs State Of Rajasthan on 22 July, 2021
Bench: Dinesh Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 9223/2021
Malay Pandya S/o Praveen Pandya, Aged About 32 Years,
Resident Of Rajpur, Tehsil And District Dungarpur.
----Petitioner
Versus
1. State Of Rajasthan, Through Principal Secretary, Medical
And Health Department, Govt. Of Rajasthan, Jaipur.
2. Director, Medical And Health Department, Swasthya
Bhawan, Jaipur.
3. Principal And Controller, Govt. Medical College,
Dungarpur.
4. Secretary, Bunty Trading Company, Ward No. 32, Churu.
----Respondents
For Petitioner(s) : Mr. C.S. Kotwani
Ms. Swati Shekhar
JUSTICE DINESH MEHTA
Order
22/07/2021
1. By way of the present writ petition, the petitioner has raised
a grievance that the respondent - placement agency has not
engaged petitioner as a Senior Lab Technician.
2. The facts appertains are that by way of an advertisement
dated 02.06.2020, the respondent No.4 issued a short-term
tender notice to provide human resources from the registered
bidders to provide Research Assistant, Sr. Lab Technician and Data
Entry Operator (Man with Machine).
(2 of 4) [CW-9223/2021]
3. The petitioner was engaged as Senior Lab Technician through
Matra Darshan Shiksha Samiti and was asked to work in Govt.
Medical College, Dungarpur.
4. When the petitioner was not paid due salary, he filed a writ
petition (being S.B. Civil Writ Petition No.7595/2021), which came
to be disposed of vide order dated 01.07.2021, with the direction
to the respondents to pay due salary to the petitioner.
5. Instant writ petition has now been filed raising a grievance
that respondent No.4 new agency namely - Bunty Trading
Company, who succeeded in the bidding for providing manpower,
has not included petitioner's name in the list of manpower
supplied to respondent No.3.
6. Petitioner's contention is that respondent No.4 - new agency
cannot engage other persons ignoring the petitioner, who has
been working as Senior Lab Technician through predecessor
placement agency.
7. Learned counsel relied upon an interim order dated
12.05.2021, passed by this Court in Jitendra Kumar Vs. State of
Raj. & Ors. (S.B. Civil Writ Petition No.7180/2021) and the
judgment dated 16.02.2015, passed by the co-ordinate Bench of
this Court in Ashok Singh & Ors. Vs. State of Raj. & Ors. (S.B. Civil
Writ Petition No.11235/2012) and submitted that the petitioner
cannot be ousted or denied engagement as "one contractual
employee cannot be replaced by another contractual employee".
8. In the opinion of this Court, the petitioner was engaged
through a placement agency and not as a contractual employee.
There is no privity of contract between the petitioner and the
respondents No.1 to 3.
(3 of 4) [CW-9223/2021]
9. Petitioner's engagement was through Matra Darshan Shiksha
Samiti in the year 2020, whereafter a new agency - respondent
No.4 has been engaged by the respondents to provide manpower.
It is the discretion of the placement agency - Matra Darshan
Shiksha Samiti or Bunty Trading Company to avail service of
petitioner or any other employee of its choice. The placement
agency is not an instrumentality of State hence no writ can be
issued to it.
10. The petitioner has failed to show that his engagement was
on contractual basis and that too against an encadred or
sanctioned post. The principle - "one contractual employee cannot
be substituted by another contractual employee" is applicable only
in the case of adhoc or temporary employment by the State,
against unfilled/vacant posts and such engagement is only till the
regular selected candidates are available. Such Principle cannot be
stretched to the extent of taking within its sweep the personnel
employed through placement agencies for providing services.
11. Petitioner has failed to show that there is a direct employer-
employee relationship between the petitioner and the respondent
State. He has also failed to establish that his engagement was
against a sanctioned post.
12. By a separate order of even date, this Court has dismissed a
writ petition involving almost similar controversy (Re:- S.B. Civil
Writ Petition No.8605/2021 : Bhupen Gehlot Vs. The State of Raj.
& Ors.) while holding as under:
12. The argument of learned counsel that this
Court and Hon'ble the Supreme Court has
repeatedly held that engagement through placement
agency is illegal, in the opinion of this Court, is not
(4 of 4) [CW-9223/2021]
available to the petitioner, who himself is a
beneficiary of a placement agency.
13. The principle as relied upon by learned counsel
for the petitioner is applicable only when the
contractual employees are engaged on adhoc basic,
on fixed pay against sanctioned posts, that too by
the State awaiting regular recruitment.
13. In the facts of the present case and on the basis of material
available on record, neither can the petitioner be held a
contractual employee nor can he claim continuance of his
engagement.
14. There is no fundamental or legal right in petitioner's favour.
The writ petition is, thus, dismissed.
15. Stay petition also stands dismissed accordingly.
(DINESH MEHTA),J
239-Ramesh/-
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