Ashok Kumar S/O Shri Khem Chand vs State Of Rajasthan
2022 Latest Caselaw 3659 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

               S.B. Civil Writ Petition No. 6173/2022

Ashok Kumar S/o Shri Khem Chand, R/o 73/253, Tagore Lane,
Shipra Path Mansarover, Jaipur The Then Computer Operator
Sawai Mansingh Hospital Jaipur
                                                                    ----Petitioner
                                    Versus
1.     State    Of    Rajasthan,          Through          Principal     Secretary,
       Department Of Medical And Health Secretariat, Jaipur
2.     Superintendent, S.m.s. Hospital, Jaipur
3.     Rajasthan State Health Assurance Agency, Rajasthan
       Jaipur Through Director
4.     Nodal Officer, Chiranjivi Swasthya Beema Yojana, S.m.s
       Hospital Jaipur
5.     Divisional    Labour Commissioner,                 Labour       Department,
       State Of Rajasthan, Shanti Nagar, Jaipur
6.     M/s. Ascent Computer Technology, D-224/B9, Tanwar
       Residency, Chinkra Canteen, Tulsi Marg, Jaipur Through
       Proprietor Chandra Shekhar Tiwari
                                                                 ----Respondents

For Petitioner(s) : Mr. Avadhesh Chandra Upadhyay For Respondent(s) :

HON'BLE MR. JUSTICE INDERJEET SINGH

Order

10/05/2022

1. This writ petition has been filed by the petitioner with the

following prayer:-

"It is, therefore, humbly prayed that :-

(i) By an appropriate writ, order or direction, direct the respondents to join the petitioner on at the post of Computer Operator at Sawai Maansingh Hospital, Jaipur Whereby respondent no. 6 was

(2 of 4) [CW-6173/2022]

awarded the contract for appointment HIGH SKILLED SERVICES (Pharmacist/Lab Technician / Telephone Operator/ HIS Assistant Computer Operator) at SMS Hospital, Jaipur with all previous benefits and salary from the date 16.02.2020 by which he was removed from the service.

(ii) By an appropriate writ, order or direction, if any prejudicial order is passed against the petitioner, then the same may kindly be taken on record and further the same may kindly be quashed and set aside.

(iii) Any other suitable order or direction, which this Hon'ble Court deems expedient in the facts and circumstances of the case, may kindly be passed in favour of the petitioner.

(iv) Cost of the writ petition may kindly be awarded in favour of the petitioner.

2. Brief facts of the case are that the petitioner was appointed

through placement agency on the post of 'Senior Computer

Operator/Health Guide' purely on contract basis. Thus by virtue of

appointment being made by the placement agency the petitioner

does not appear to be employee of the State-respondents in any

manner, as such there is no relationship of employee and

employer between the petitioner and the State-respondents. The

petitioner has failed to place on record any documentary evidence

like appointment order and termination order, to show that he was

appointed by the State-respondents.

3. Counsel for the petitioner submits that the petitioner has

been working on the post of 'Senior Computer Operator/Health

Guide' and prayed that while retaining him in service the salary of

the period he worked be released.

4. Heard counsel for the petitioner and perused the record.

5. The Hon'ble Supreme Court in the matter of K.K. Suresh &

Anr. Vs. Food Corporation of India & Ors. reported in (2018)

(3 of 4) [CW-6173/2022]

17 Supreme Court Cases 641 wherein para No.7, has held as

under:-

"7. In the first place, the Appellants failed to adduce any evidence to prove existence of any relationship between them and the FCI; Second, when the documents on record showed that the Appellants were appointed by the FCI Head Load Workers Co-Operative Society but not by the FCI then obviously the remedy of the Appellants, if at all, in relation to their any service dispute was against the said Society being their employer but not against the FCI; Third, the FCI was able to prove with the aid of evidence that the Appellants were in the employment of the said Society whereas the Appellants were not able to prove with the aid of any documents that they were appointed by the FCI and how and on what basis they claimed to be in the employment of the FCI except to make an averment in the writ petitions in that behalf. It was, in our opinion, not sufficient to grant any relief to the Appellants."

6. The Hon'ble Supreme Court in another judgment in the

matter of Rajasthan State Road Development and

Construction Corporation Ltd. Vs. Piyush Kant Sharma

reported in 2020 SCC Online SC 842 in para 8, has held as

under:-

"8. Having heard the learned Counsel appearing on behalf of the respective parties, we are of the opinion that the High Court has committed a grave error in passing such an interim order restraining the Appellant Corporation from appointing new set of contractual employees in place of original writ Petitioners. No reasons, whatsoever have been assigned by the High Court while passing the impugned interim order. The High Court has failed to appreciate and consider the fact that according to the Appellant Corporation, there was no regular sanctioned post of Computer Operator in the Appellant

(4 of 4) [CW-6173/2022]

Corporation and that there was no employer-employee relationship between the original writ Petitioner and the Appellant Corporation and that the original writ Petitioner was a employee appointed by the contractor on contractual basis and worked with the Appellant Corporation on contractual basis. As the writ petition is pending before the High Court, we refrain ourselves from making any further observations on merits. However, we are of the opinion that in the facts and circumstances of the case narrated hereinabove, the High Court ought not to have passed such an interim order. Under the circumstances, the impugned interim order passed by the High Court requires to be quashed and set aside."

7. This writ petition filed by the petitioner deserves to be

dismissed for the reasons; firstly, there is no relationship of

employee and employer between the petitioner and the State-

respondents; secondly, the petitioner was employee of the

placement agency and neither appointment order nor termination

order was passed by the State-respondents; lastly, in view of the

judgments passed by the Hon'ble Supreme Court in the matter of

K.K. Suresh (supra) & Rajasthan State Road Development

and Construction Corporation Ltd. (supra), I am not inclined

to exercise the jurisdiction of this Court under Article 226 of the

Constitution of India.

8. In that view of the matter, this writ petition stands dismissed

and the interim order stands vacated.

9. All the pending applications stand disposed of.

(INDERJEET SINGH),J

JYOTI /122

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