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
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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