IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.8575 of 1990 (O&M) Date of decision:31.03.2011 Krishna Devi ....Petitioner versus The Haryana State Cooperative Land Development Bank Limited, Sector 22, Chandigarh, through its Managing Director. ....Respondent CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. Ashish Rawal, Advocate, for Mr. Anupam Gupta, Advocate, for the petitioner. Mr. S.S. Dalal, Advocate, for the respondent. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? No. 2. To be referred to the reporters or not ? No. 3. Whether the judgment should be reported in the digest ? No. ---- K.Kannan, J. (Oral) 1. The petition is for direction to treat the petitioner as on regular employment, she having been appointed as a Clerk on regular basis. The contention of the petitioner was that a recruitment process was made through a public advertisement, dated 11.04.1986, for the post of Clerks. 95 vacancies had been notified with due reservation for scheduled castes, backward class, ex-servicemen and physical handicapped. According to the petitioner, she was admittedly one of the persons, who had been recruited through this process and an order of Civil Writ Petition No.8575 of 1990 (O&M) - 2 - appointment was issued on 04.06.1986 (Annexure P5). The terms of appointment had been provided in clauses 1 and 2 as under:- “1. Your appointment is temporary and is liable to be terminated at any time after giving one month's notice or one month's salary in lieu thereof. If you want to leave the service, you will have to give one month's notice failing which the salary for the period for which notice falls short of, shall have to be deposited by you in this Bank. 2. You will be on probation for two years. The probation period can be further extended by six months.” 2. The contention of the petitioner is that she continued in service after the completion of two years and also a further period of 6 months. Since she had not been terminated from service on probation, she was entitled to be treated as a regular employee. The grievance, however, was that she was treated as ad hoc employee and placed along with other ad hoc employees and included in the list along with other ad hoc employees through a decision taken at meeting held on 06.03.1990 of the Board of Directors. She had been placed in serial No.2 along with other ad hoc employees and her seniority was fixed in relation to persons, who had been subsequently recruited or persons, who had been purely on ad hoc basis. 3. The statement in defence was that the appointment made on 04.06.1986 was cancelled and a fresh recruitment was made. The petitioner was recruited as a Clerk on 08.09.1990 on regular basis only when the Board took a decision to take the appointment of the petitioner along with others as appointed by way of fresh appointment. The memorandum had also been issued on 08.09.1990 when an order was Civil Writ Petition No.8575 of 1990 (O&M) - 3 - passed stating that she was appointed as a Clerk on regular basis. The writ petition challenges this memorandum treating the petitioner as appointed on regular basis w.e.f. 08.09.1990. 4. The contention in defence that an appointment of the petitioner must be taken to be effective only through the proceedings mentioned under the memorandum dated 08.09.1990, in my view, is untenable. Even a contention in the written statement that the order of appointment which is made on 04.06.1986 was cancelled remains unsubstantiated to this date. An appointment which is made after a notification through an advertisement and followed by a selection process could not have been cancelled except under some procedure governed by rules. The learned counsel refers me to the Staff Selection Rules in para 13.3 and makes a pointed reference to the following sub- rule (d) as under:- “d) The period of ad hoc service rendered by an employee and followed by regular appointment shall not be counted towards seniority and promotions.” 5. The issue, in this case, is whether the petitioner could be treated as appointed afresh only in the year, 1990 because a memorandum had been issued on 08.09.1990 to that extent. The petitioner, in my view, is entitled to ignore the memorandum which places the continuation of her employment beyond the period of probation as fresh employment so long as the probation did not result in termination but continued in such employment without any break. 6. The learned counsel for the respondent contends that the memorandum issued on 08.09.1990 was itself not in challenge and the Civil Writ Petition No.8575 of 1990 (O&M) - 4 - petitioner is merely seeking for an appointment as a regular employee from 04.06.1986. I do not think that this can make any difference, for, a retention in service through the memorandum is itself not in challenge. It is only the manner of treating her as employee afresh on that date which creates fiction of termination of service before that date and treating her as freshly appointed on the date when the memorandum was issued. The petitioner is again not making an issue of preparation of seniority list. The contention is that her service must be counted from the date of her initial appointment in a selection process and her continuation without any interruption till the day when she filed writ petition as regular service. The petitioner's prayer is justified and the writ petition is allowed. Her length of service must be taken as effective from 04.06.1986 and all the benefits accruing to the petitioner on such basis shall be granted to her. 7. The writ petition is allowed. (K.KANNAN) JUDGE 31.03.2011 sanjeev