High Court Punjab-Haryana High Court

The Haryana State Federation Of … vs Smt. Sudesh Thakur And Others on 20 August, 2009

Punjab-Haryana High Court
The Haryana State Federation Of … vs Smt. Sudesh Thakur And Others on 20 August, 2009
     IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                          CHANDIGARH.

                                      L.P.A. No.751 of 2009 (O&M)
                                        Date of decision: 20.8.2009

The Haryana State Federation of Consumers Cooperative
Wholesale Stores Ltd.
                                          -----Appellant
                           Vs.
Smt. Sudesh Thakur and others.
                                                   -----Respondents

CORAM:- HON'BLE MR. JUSTICE ADARSH KUMAR GOEL
        HON'BLE MRS. JUSTICE DAYA CHAUDHARY

Present:-     Mr. Rajesh Garg, Advocate
              for the appellant.
                    -----

ORDER:

1. The appellant is aggrieved by order of learned Single

Judge, allowing the writ petition of respondent No.1.

2. The writ petition was against order dated 5.4.1996,

reverting her from the post of Assistant to the post of

Storekeeper.

3. The respondent was appointed as Storekeeper w.e.f.

13.2.1981. On her application, vide order dated 10.7.1985, she

was transferred and appointed as Assistant. She continued to

work on that post and was also included in the seniority list for the

Assistants. A writ petition was filed in the year 1994 being

C.W.P. No.2608 of 1994 by some of the employees, objecting to

the grant of seniority to the respondent above them, on which this
LPA No.751 of 2009 2

Court directed that the issue of seniority be re-determined, vide

order dated 23.5.1995. Purporting to act in compliance of the

said order, impugned order dated 5.4.1996 was passed. The

respondent, inter-alia, submitted that she had already worked for

11 years on the post of Assistant and even if she was not given

seniority, she could not be removed from the post on which she

was working.

4. The writ petition was contested by the appellant by

submitting that the order transferring her to the post of Assistant

was void ab initio as her original post was as Storekeeper and

there was no provision for appointment by way of transfer.

5. Learned Single Judge upheld the plea of the

respondent and held that appointment by transfer was not void ab

initio as the qualification for the two posts was the same and the

pay scale was also the same. The statement on behalf of the

respondent, as noted in the impugned order, is as under:-

“Learned senior counsel appearing on behalf of
the petitioner has limited his claim only to validation of
her appointment as Assistant and is not claiming that
the petitioner should be granted seniority w.e.f.
13.02.1981…..”

6. Accordingly, learned Single Judge held that

invalidation of appointment of the respondent could not be

sustained. Appointment of the respondent w.e.f. 10.7.1985 was,

thus, declared to be valid.

LPA No.751 of 2009 3

7. We have heard learned counsel for the appellant.

8. Learned counsel for the appellant submitted that

appointment of the respondent being void ab initio, the same

could be set aside at any time and the impugned order was

passed in view of direction of this Court, requiring the appellant to

re-decide the matter of seniority after hearing the parties.

9. We do not find any merit in the submission. The

appellant gave appointment to the respondent as Assistant in the

year 1985 and the respondent was working on the said post since

then. Merely because this Court required the appellant to re-

decide seniority, was not enough to pass an order un-settling the

appointment of a person who has already been working for 15

years, without her fault. The rules could not be read as

empowering the appellant to unsettle the appointment made 15

years back. The earlier writ petition itself was nine years after

appointment of respondent No.1 which fact should also have

been considered by the appellant while passing the order of

reversion. Contention that pay of respondent No.1 was not

affected carried no weight in support of an order disturbing

appointment long ago.

10. We, thus, do not find any ground to interfere with the

view taken by the learned Single Judge.

11. The appeal is dismissed.


                                        (ADARSH KUMAR GOEL)
                                                JUDGE
 LPA No.751 of 2009                4




August 20, 2009      (           DAYA
CHAUDHARY )
ashwani                  JUDGE