HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

JODHPUR

S.B. Civil Writ Petition No. 8605/2021

Bhupen Gehlot S/o Dr. M.R. Gehlot, Aged About 29 Years,

Working As Speech Therapist Cum Audiologist In The

Department Of E.N.T., M.D.M. Hospital, Jodhpur. Residing At Shiv

Mandir Road, Ratanada, Jodhpur.

----Petitioner

Versus

1.

The State Of Rajasthan, Through Its Secretary, Medical

And Health Services, Secretariat, Jaipur.

2.

Secretary, Medical Relief Society, Jodhpur.

3.

The Superintendent Of Mathuradas Mathur Hospital,

Jodhpur.

4.

Principal And Controller, Dr. S.N. Medical College And

Groups Of Hospital, Jodhpur.

5.

Professor And Head Of Department, ENT Department,

MDM Hospital, Jodhpur.

----Respondents

For Petitioner(s)

:

Mr. Girish Sankhala

For Respondent(s)

:

Mr. Kailash Choudhary for Mr. Manish

Vyas, AAG

JUSTICE DINESH MEHTA

Order

22/07/2021

1.

By way of the present writ petition, the petitioner has

challenged E-tender Notice dated 29.06.2021, whereby bids from

eligible bidders/dealers to provide items & services of experts

have been invited.

2.

The petitioner feels aggrieved of the proposed contract for

providing Audiologist & Speech Therapist for audiological services

on contract basis.

3.

Mr. Girish Sankhala, learned counsel for the petitioner

argued that respondent’s action of inviting bids for Audiologist and

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[CW-8605/2021]

Speech Therapist for Audiological services is illegal. He contended

that consequent to introduction of a service provider, petitioner’s

engagement as Speech Therapist & Audiologist will be brought to

an end, which will be contrary to the principle that one set of

contractual employee cannot be replaced by another set of

contractual employee.

4.

In support of his argument aforesaid, learned counsel placed

reliance upon an interim order dated 18.08.2020, passed by this

Court in Navin Saini Vs. State of Raj. & Ors. (S.B. Civil Writ

Petition No.7207/2020) and the judgment dated 10.12.2015,

passed by this Court in Ramesh Chandra Nayak & Ors. Vs. State

of Raj. & Ors. (S.B. Civil Writ Petition No.7671/2015) and the

judgment of this Court in Jagdish Prasad Yadav & Ors. Vs. State of

Raj. & Ors. : 2016(1) WLC (Raj.) UC 336 decided on 11.12.2015.

5.

It is contended by learned counsel for the petitioner that this

Court and Hon’ble the Supreme Court has repeatedly held that

engagement through placement agency is illegal.

6.

Upon perusal of material available on record, this Court finds

that petitioner’s engagement too, was made through a placement

agency, namely Maa Vaishno Devi Security Services. The

petitioner is, therefore, not a contractual employee – he has no

direct contractual relationship with the respondents.

7.

By way of impugned E-tender notice, the respondents are

looking for a service provider or placement agency who would

provide Audiologist & Speech Therapist for audiological services.

8.

In the opinion of this Court, by no stretch of imagination,

petitioner can be considered as a contractual employee. The

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[CW-8605/2021]

principle - “one contractual employee cannot be replaced by

another set of contractual employee”, thus, does not apply.

9.

The petitioner has failed to satisfy the Court as to whether

there is a sanctioned post for Audiologist & Speech Therapist for

audiological services and apart from that whether his engagement

was against such sanctioned post.

10.

So far as the interim order dated 18.08.2020 cited by

learned counsel for the petitioner, is concerned, the said interim

order was granted observing that the petitioner therein was

working on contract basis on the post of Computer Operator with

machine since 2008, whereas in the present case the petitioner’s

engagement that too through service provider is of 2019 itself.

11.

So far as judgment of Ramesh Chandra Nayak (supra) is

concerned, the case related to a contract