Punjab State Co-op. Agricultural Development Bank Vs. Gurnaib Singh
EmailAppeal: Civil Appeal No. 7429 of 1997
Petitioner: Punjab State Co-op. Agricultural Development Bank
Respondent: Gurnaib Singh
Apeal: Civil Appeal No. 7429 of 1997
Judges: G.B. PATTANAIK & DORAISWAMY RAJU, JJ.
Date of Judgment: Nov 08, 2001
Head Note:
SERVICE AND LABOUR LAW
Punjab State Co-operative Land Mortgage Bank Service (Common Cadre) Rules, 1978
Rule 10 and 10A – Banking services – Seniority – Determination – Respondent appointed by appellant bank as clerk in 1971 temporar-ily for six months only – Thereafter, on fresh application being filed, respondent appointed for a further period of about five months – After a break between 25.5.1972 to 5.3.1973 respondent appointed afresh on 1.3.1973 – Appointment regularised by the bank from 6.3.1973 – Respondent claiming seniority from the date of initial appointment in 1971 – Whether regular appointment having been effected only from 6.3.1973, respondent entitled to claim seniority from the date of initial appointment. Held, respondent’s appointment prior to the period of regularization on 6.3.1973 being only provisional, the period of such provisional appointment cannot be counted for determining his seniority in the clerical cadre.
Held:
On the conceded fact that the initial appointment of the plain-tiff was only for a period of six months and that too was on a provisional basis and then after a gap of one day, he was ap-pointed afresh till 25.5.1972 and was not in service from 26.5.1972 till 5.3.1973 and in the very application filed on 1.3.1973, the plaintiff had made a request to the effect that his case should be considered for an appointment afresh as his name was registered in the employment exchange, we have no manner of doubt that the earlier period of service from 2.7.1971 till 6.3.1973 could not have been counted as a continuous service for the purpose of reckoning his seniority in the cadre. The learned district judge therefore, committed serious error in construing the relevant provisions and reckoning that period for counting the seniority of the plaintiff. The High Court committed error in dismissing the second appeal in limine. We, therefore, allow this appeal and set aside the judgment of the High Court as well as that of the learned additional district judge in appeal. (Para 4)
JUDGEMENT:
ORDER
1. The Punjab State Co-operative Agriculture Development Bank, the defendant in the suit is the appellant. The plaintiff filed a suit for declaration that his services right from the inception namely 2.7.1971 should be counted for the purpose of his senior-ity. It is undisputed that in the year 1971, there was no statu-tory rules governing the field of appointment to the different posts in the bank. On an application being filed by the plain-tiff, he was appointed on 2.7.1971 for a tenure of six months. Thereafter, on a fresh application being filed, he was further appointed on 4.1.1972 till 25.5.1972. The plaintiff was not in service from 26.5.1972 till 5.3.1973 and on 5.3.1973, on the basis of an application made by the plaintiff on 1.3.1973, he was appointed. The deputy registrar, however, recommended to the board that the plaintiff could be given a regular appointment and this was acceded to by the board. He was thus regularly appointed in the bank with effect from 6.3.1973. The dispute centres round the question as to whether the period of service from 2.7.1971 till 6.3.1973 with the aforesaid break could be counted towards the seniority of the plaintiff in the cadre of clerks under the bank.
2. While the plaintiff on being appointed on regular basis with effect from 6.3.1973 was continuing, a set of rules came into force called “The Punjab State Co-operative Land Mortgage Bank Service (Common Cadre) Rules 1978” (hereinafter referred to as “the recruitment rules”). Rule 10 of the aforesaid rules deals with the question of seniority. The plaintiff appears to have filed a representation on 23.6.1992 which stood rejected and again another representation on 21.10.1992 which was also reject-ed by the managing committee on 6.9.1993. The present suit was filed for the relief as already stated. The bank took the stand that the regular appointment of the plaintiff having been made with effect from 6.3.1973 and the earlier period being purely ad hoc and that also not being continuous, question of considering that period for the purpose of seniority would not arise. The learned trial judge accepted the said contention of the defendant and dismissed the plaintiff’s suit. On an appeal being filed, the lower appellate authority, namely the additional district judge relying upon the provisions of the Industrial Disputes Act more particularly section 25F, and then considering the requirements therein came to hold that the plaintiff must be held to be in continuous service right from the inception and therefore, the trial judge was in error in dismissing the suit. The judgment and decree of the trial judge having been reversed and the appeal being allowed, the bank filed a second appeal. The High Court, however, dismissed the second appeal in limine. Hence, the present appeal.
3. It is contended on behalf of the appellant that in view of the specific provisions in the recruitment rules specifically indi-cating that the concept of continuous appointment in rule 10, will not apply to persons on purely provisional basis and in view of the fact that the plaintiff himself, after the break period, made subsequent application for being appointed, the so called ap-pointment of 5.3.1973 which was later on regularised on 6.3.1973, must be held to be a fresh appointment in the eyes of law and therefore, the earlier period from 2.7.1971 till 25.5.1972 cannot be taken into account for reckoning the seniority of the plain-tiff under rule 10 of the recruitment rules. We find sufficient force in the aforesaid contention. Rule 10A, no doubt, states that the inter se seniority of the members of a service shall be determined from the dates of their continuous appointment to a post in the said category. A note has been appended to the said rule which states that the rule shall not apply to persons on purely provisional basis.
4. On the conceded fact that the initial appointment of the plaintiff was only for a period of six months and that too was on a provisional basis and then after a gap of one day, he was appointed afresh till 25.5.1972 and was not in service from 26.5.1972 till 5.3.1973 and in the very application filed on 1.3.1973, the plaintiff had made a request to the effect that his case should be considered for an appointment afresh as his name was registered in the employment exchange, we have no manner of doubt that the earlier period of service from 2.7.1971 till 6.3.1973 could not have been counted as a continuous service for the purpose of reckoning his seniority in the cadre. The learned district judge therefore, committed serious error in construing the relevant provisions and reckoning that period for counting the seniority of the plaintiff. The High Court committed error in dismissing the second appeal in limine. We, therefore, allow this appeal and set aside the judgment of the High Court as well as that of the learned additional district judge in appeal. The judgment of the trial court is restored and the plaintiff’s suit stands dismissed. There will be no order as to costs.
1. The Punjab State Co-operative Agriculture Development Bank, the defendant in the suit is the appellant. The plaintiff filed a suit for declaration that his services right from the inception namely 2.7.1971 should be counted for the purpose of his senior-ity. It is undisputed that in the year 1971, there was no statu-tory rules governing the field of appointment to the different posts in the bank. On an application being filed by the plain-tiff, he was appointed on 2.7.1971 for a tenure of six months. Thereafter, on a fresh application being filed, he was further appointed on 4.1.1972 till 25.5.1972. The plaintiff was not in service from 26.5.1972 till 5.3.1973 and on 5.3.1973, on the basis of an application made by the plaintiff on 1.3.1973, he was appointed. The deputy registrar, however, recommended to the board that the plaintiff could be given a regular appointment and this was acceded to by the board. He was thus regularly appointed in the bank with effect from 6.3.1973. The dispute centres round the question as to whether the period of service from 2.7.1971 till 6.3.1973 with the aforesaid break could be counted towards the seniority of the plaintiff in the cadre of clerks under the bank.
2. While the plaintiff on being appointed on regular basis with effect from 6.3.1973 was continuing, a set of rules came into force called “The Punjab State Co-operative Land Mortgage Bank Service (Common Cadre) Rules 1978” (hereinafter referred to as “the recruitment rules”). Rule 10 of the aforesaid rules deals with the question of seniority. The plaintiff appears to have filed a representation on 23.6.1992 which stood rejected and again another representation on 21.10.1992 which was also reject-ed by the managing committee on 6.9.1993. The present suit was filed for the relief as already stated. The bank took the stand that the regular appointment of the plaintiff having been made with effect from 6.3.1973 and the earlier period being purely ad hoc and that also not being continuous, question of considering that period for the purpose of seniority would not arise. The learned trial judge accepted the said contention of the defendant and dismissed the plaintiff’s suit. On an appeal being filed, the lower appellate authority, namely the additional district judge relying upon the provisions of the Industrial Disputes Act more particularly section 25F, and then considering the requirements therein came to hold that the plaintiff must be held to be in continuous service right from the inception and therefore, the trial judge was in error in dismissing the suit. The judgment and decree of the trial judge having been reversed and the appeal being allowed, the bank filed a second appeal. The High Court, however, dismissed the second appeal in limine. Hence, the present appeal.
3. It is contended on behalf of the appellant that in view of the specific provisions in the recruitment rules specifically indi-cating that the concept of continuous appointment in rule 10, will not apply to persons on purely provisional basis and in view of the fact that the plaintiff himself, after the break period, made subsequent application for being appointed, the so called ap-pointment of 5.3.1973 which was later on regularised on 6.3.1973, must be held to be a fresh appointment in the eyes of law and therefore, the earlier period from 2.7.1971 till 25.5.1972 cannot be taken into account for reckoning the seniority of the plain-tiff under rule 10 of the recruitment rules. We find sufficient force in the aforesaid contention. Rule 10A, no doubt, states that the inter se seniority of the members of a service shall be determined from the dates of their continuous appointment to a post in the said category. A note has been appended to the said rule which states that the rule shall not apply to persons on purely provisional basis.
4. On the conceded fact that the initial appointment of the plaintiff was only for a period of six months and that too was on a provisional basis and then after a gap of one day, he was appointed afresh till 25.5.1972 and was not in service from 26.5.1972 till 5.3.1973 and in the very application filed on 1.3.1973, the plaintiff had made a request to the effect that his case should be considered for an appointment afresh as his name was registered in the employment exchange, we have no manner of doubt that the earlier period of service from 2.7.1971 till 6.3.1973 could not have been counted as a continuous service for the purpose of reckoning his seniority in the cadre. The learned district judge therefore, committed serious error in construing the relevant provisions and reckoning that period for counting the seniority of the plaintiff. The High Court committed error in dismissing the second appeal in limine. We, therefore, allow this appeal and set aside the judgment of the High Court as well as that of the learned additional district judge in appeal. The judgment of the trial court is restored and the plaintiff’s suit stands dismissed. There will be no order as to costs.
