High Court Punjab-Haryana High Court

Smt. Sudesh Thakur vs State Of Haryana & Others on 7 January, 2009

Punjab-Haryana High Court
Smt. Sudesh Thakur vs State Of Haryana & Others on 7 January, 2009
     IN THE PUNJAB AND HARYANA HIGH COURT
                   AT CHANDIGARH

                               CWP No.6772 of 1996
                               Date of decision: January 7, 2009

Smt. Sudesh Thakur                                ... Petitioner

                              Versus

State of Haryana & others                         ... Respondents

CORAM : HON'BLE MR. JUSTICE AJAY TEWARI

Present : Mr. R.K. Malik, Sr. Advocate
          with Mr. Vishal Malik, Advocate
          for the petitioner.

           Mr. Deepak Jindal, AAG, Haryana.

           Mr. J.S. Cooner, Advocate
           for respondent No.3.

                        ***
1. Whether Reporters of Local Newspapers may be allowed to see
the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?

AJAY TEWARI, J.

This petition is a part of the bunch of cases. However,

learned counsel are agreed that these cases are not such as can

be decided by a common order. In these circumstances, this

matter is segregated from other cases, which will have to be

decided individually.

The petitioner was appointed as a Store Keeper in

respondent No.3 by order dated 09.01.1981 and joined as such

w.e.f. 13.02.1981. It is her case that right from the inception the

respondents took the work of Assistant from her. On 11.06.1985,

the petitioner moved an application to the Managing Director to
CWP No.6772 of 1996 -2-

change her cadre from Store Keeper to Assistant with effect from

the original date of her joining on the ground that she had been

working as such and that the posts were identical in terms of pay

and responsibilities. By order dated 10.07.1985, the petitioner

was appointed as Assistant by transfer by the Managing Director.

The order further laid down that her pay would remain protected

and date of increment would also remain the same. Thereafter, a

tentative seniority list of the Assistants was issued and, on the

representation of the petitioner she was allowed seniority as such

from the original date of her appointment i.e. 13.02.1981.

The grant of this seniority to the petitioner was

challenged in this Court and the same was set aside with the

following direction:

“Accordingly, these writ petitions are allowed.

The impugned orders are set aside and the
respondents are directed to re-decide the matter after
hearing the petitioners as well as the respondents. It
will be open to the Federation to even grant hearing to
others who may be adversely affected by the final
decisions. The respondents may do the needful as
expeditiously as possible preferable within six months.
In the circumstances of these cases, there will be no
order as to costs.”

Thereafter by order Annexure P-11, the matter was re-

decided and with regard to the petitioner it was held that her

very appointment as Assistant by transfer was wrong. It is this

order under challenge in this writ petition.

Learned senior counsel appearing on behalf of

the petitioner has limited his claim only to validation of her
CWP No.6772 of 1996 -3-

appointment as Assistant and is not claiming that the petitioner

should be granted seniority w.e.f. 13.02.1981. It is his argument

that the rules envisage appointment by transfer and that the

competent authority for appointing her was the Managing

Director. He further argued that the appointment of the

petitioner by transfer as Assistant was never challenged by

anybody. It is his further stand that what was remanded back by

this Court was only the question regarding the seniority of the

petitioner and thus the action of the respondents in setting aside

her very appointment was ultra vires. Learned counsel appearing

on behalf of the respondents defended the order on the ground

that the posts of Store Keeper and Assistant were borne in

different cadres and thus the very basis of the appointment of the

petitioner (on the ground that the posts were identical) was

misconceived.

In my opinion, this petition deserve to succeed.

There is no gain-saying the fact that the rules envisage

appointment by transfer; that the competent authority was the

Managing Director; that the qualifications for the two posts were

same; that the petitioner was doing the work of an Assistant

right from the date of her appointment; that there had been no

challenge to her appointment by transfer; and that this Court had

remanded the matter only with regard to the seniority. The

argument of the learned counsel for the respondents that the

posts were borne in different cadres, even though correct would

not militate against the above mentioned facts.
CWP No.6772 of 1996 -4-

Consequently, this petition is allowed. The impugned

order Annexure P-11 to the extent that it has invalided the very

appointment of the petitioner as Assistant is quashed and the

appointment of the petitioner as Assistant w.e.f. 10.07.1985 is

held to be valid.

January 7, 2009                          (AJAY TEWARI)
sonia                                        JUDGE