Rajasthan High Court
Hari Om Bairwa S/O Shri Pyare Lal ... vs The State Of Rajasthan on 16 January, 2023
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 340/2023
Hari Om Bairwa S/o Shri Pyare Lal Bairwa, Aged About 42 Years,
R/o Machari, Ishwana Road, Alwar, Rajasthan.
----Petitioner
Versus
1. The State Of Rajasthan, Through Principal Secretary,
Department Of Medical And Health, Secretariat,
Rajasthan, Jaipur.
2. The Director (Non-Gazette), Medical And Health Services,
Rajasthan, Jaipur.
3. The Chief Medical And Health Officer, Rajsamand.
4. The Block Chief Medical And Health Officer, Khamnore,
District Rajsamand.
5. The Medical Officer In-Charge, Community Health Centre,
Delwara, District Rajsamand.
6. Divesh Kumar Mahawar, Radiographer, Community Health
Centre, Delwara, District Rajsamand.
----Respondents
For Petitioner(s) : Mr. Shivatma Kumar Tank
For Respondent(s) :
HON'BLE MR. JUSTICE SUDESH BANSAL
Order
16/01/2023
1. Petitioner, by way of instant writ petition under Article 226 of
the Constitution of India, has challenged the termination order
dated 16.12.2022 (Ann.2) whereby and whereunder his
contractual services on the post of Assistant Radiographer has
been terminated w.e.f. 16.12.2022.
2. Having heard counsel for petitioner and from perusal of
record, it is not in dispute that services of petitioner as Assistant
(2 of 3) [CW-340/2023]
Radiographer were engaged through the placement agency on
contractual basis as reflected in the order dated 12.07.2013
(Ann.3). Thereafter, one Mr. Divesh Kumar Mahawar after getting
promotion from the post of Assistant Radiographer to
Radiographer has been posted vide order dated 25.11.2022,
therefore, the contractual services of petitioner has been
terminated vide impugned order dated 16.12.2022.
4. The Hon'ble Supreme Court in case of K.K. Suresh & Anr.
Vs. Food Corporation of India & Ors. [AIR (2018)17 SC
641], the Hon'ble Apex Court has held as under:-
"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."
In another case of Rajasthan State Road Development
and Construction Corporation Ltd. v. Piyush Kant Sharma
and Ors. [AIR(2020) SC 5036], the Hon'ble Supreme Court
observed as under:-
"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
(3 of 3) [CW-340/2023]
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 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 an 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."
3. Since it is an undisputed fact that the contractual
appointment of petitioner was through placement agency and in
view of the aforesaid judgments of Hon'ble the Supreme Court, no
direct relationship of employee and employer could be established
between the petitioner and respondent-State, therefore, the
petitioner cannot claim any direct relationship with respondent-
State and he cannot challenge his termination order by way of writ
petition.
4. For aforesaid reasons, the instant writ petition is devoid of
merits and the same is hereby dismissed.
5. Stay application and other pending application(s), if any, also
stand disposed of.
(SUDESH BANSAL),J
SACHIN/6
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