RSA No. 895 of 2005 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA No.895 of 2005
Decided on : 25 -02-2009
Amrit Kaur
....Appellant
VERSUS
Punjab State Government through Secretary and others
....Respondents
CORAM:- HON’BLE MR. JUSTICE MAHESH GROVER
Present:- Mr. Ashok Sharma Nabhewala, Advocate
for the appellant
Mr. N.S.Virk, Addl. A.G., Punjab.
MAHESH GROVER, J
This is plaintiff’s second appeal against the judgment of the
learned Trial Court dated 22.10.2002 and that of the First Appellate Court
dated 20.9.2004.
The undisputed facts are that the plaintiff was appointed as an
Auxiliary Nurse Midwife on 23.5.1964. She applied for permission to
undergo General Nursing Course through proper channel w.e.f September,
1972. She was accordingly granted study leave from 6th September, 1972
and on 7th September, 1972 pursuant to the permission granted she joined
Nehru Hospital, Chandigarh for undergoing the aforesaid course. On 4th
May, 1973 defendant no. 2 i.e. Director, Health Services & Family Welfare,
Chandigarh wrote to the defendant no. 7 Medical Superintendent, Nehru
Hospital directing him not to permit the appellant to continue with the
course and directed him not to pay stipend. The plaintiff-appellant however
RSA No. 895 of 2005 2
persisted with the course. She was directed to explain reasons as to under
whose orders she joined Nehru Hospital and whether she has resigned from
the previous post. She replied that defendant no.2 i.e. Director, Health
Services & Family Welfare, Chandigarh was informed by Director, Health
and Family Planning, Patiala vide his letter dated 9.8.1972 and she was
relieved from duty of Auxiliary Nurse Midwife under the authority of
defendant no.4. She reiterated her stand vide letter dated 20.12.1973. The
Director, Health Services & Family Welfare, Chandigarh in turn informed
the defendants no. 4 and 7 that she could not have been granted study leave
from the date i.e. 6th September, 1972, accordingly, as she was relieved of
her duties she should not be permitted to join her duties as Auxiliary Nurse
Midwife after completion of her course and she should submit her
resignation and further directed to fix the responsibilty as to why plaintiff-
appellant was relieved to join her course. However, she successfully
completed her course on 31.3.1975 and submitted her joining report to
defendant no.2 ie. Director, Health Services & Family Welfare, Chandigarh
on 1.4.1975. Another order was passed superseding the earlier orders and
she was allowed to join duties vide order dated 9.4.1975 in the office of
respondent no.8 from where she was relieved.
The appellant thereafter applied for the post of Staff Nurse on
27.5.1975 to respondent no. 2 through proper channel and she was selected
for the post vide letter dated 27.6.75 and was directed to report on duty
which she joined on 6.7.1975 after having been relieved from the post of
Auxiliary Nurse Midwife on 5.7.1975. The plaintiff-appellant thereafter
prayed in her suit that she was entitled to the following reliefs:-
1) salary for August, 1972 and 1.9.72 to 5.9.72
RSA No. 895 of 2005 3
2) salary for 1.4.75 to 5.7.75 as ANM on joining duty after
completion of course.
3) Sanction of study leave and study allowance for the period of
General Nursing Course with effect from 7.9.72 to 31.3.1975
i.e. For two years 3 months and 24 days and after making so
orders and payment of difference of stipend. Updating the
service book by verifying the service w.e.f 23.5.64 to date
because the plaintiff is at verge of superannuation retirement.
The respondents contested the suit and contended that the
plaintiff-appellant had joined as Auxiliary Nurse Midwife on ad hoc basis
on 23.5.1964 for which no application through proper channel was received
and as such she was not selected as Government incumbent for Staff Nurse
and there is no provision of study leave to Auxiliary Nurse Midwife and
therefore she was relieved from her services and denied the claim to salary
as set up by the plaintiff-appellant. It is also contended that plaintiff-
appellant was directed vide order dated 1.3.73 and 3.5.73 to explain as to
under whose permission she was undergoing the course of Staff Nurse
which was totally contrary to the rules. Finding her explanation
unsatisfactory she was directed to submit resignation with effect from the
date when she was relieved by Chief Medical Officer, Sangrur. She was
relieved from the post of Auxiliary Nurse Midwife with a condition that in
case her leave is not granted she will submit her resignation. On 15.6.1976,
Secretary to Punjab Government, Health and Family Welfare Department
rejected the proposal of allowing the plaintiff to rejoin her duties after
completion of her course and her prayer for treating her training period as
extra-ordinary leave was also rejected. Therefore, the claim of the appellant
RSA No. 895 of 2005 4
was denied.
Trial Court framed the following issues:-
1) Whether the plaintiff is entitled to declaration that the
withholding of his salary was illegal, null and void and
against the rules? OPP.
2) Whether the plaintiff is entitled to mandatory injunction for
counting of the training period as qualified service and was
entitled to study leave and the allowance? OPP.
3) Whether the suit of the plaintiff is barred by limitation? OPD
4) Whether the suit of the plaintiff is not maintainable in the
present form? OPD.
5) Whether the plaintiff has no cause of action to file the
present suit? OPD.
6) Relief.
Learned Trial Court and also the First Appellate Court came to
the conclusion that the order of termination was passed on 12.8.1976 and
therefore, the suit was obviously barred by limitation.
Assailing the aforesaid findings by way of the present Regular
Second Appeal, learned counsel for the appellant stated that he is not
insisting on first two prayers made in the plaint i.e salary for August, 1972
and 1.9.72 to 5.9.72 and salary for 1.4.75 to 5.7.75 as ANM on joining duty
after completion of course. However, he stated that as far as his claim no.3
is concerned, the appellant is entitled to the counting of service rendered by
her as Auxiliary Nurse Midwife towards the service which she rendered as
Staff Nurse for the purpose of commuting the retiral benefits etc. He stated
that this being the recurring as well as continuous loss, the period of
RSA No. 895 of 2005 5
limitation did not stand in her way. Reliance was placed on case titled as
‘Union of India versus Tarsem Singh’ SC 2008 (4) SCT 19 wherein it has
been observed as under:-
“Para 4. The principles underlying continuing
wrongs and recurring/successive wrongs have been applied to
service law disputes. A ‘continuing wrong’ refers to a single
wrongful act which causes a continuing injury.
‘Recurring/successive wrongs’ are those which occur
periodically, each wrong giving rise to a distinct and separate
cause of action. This Court in Balakrishna S.P.Waghmare v.
Shree Dhyaneshwar Maharaj Sansthan (AIR 1959 SC 798),
explained the concept of continuing wrong ( in the context of
section 23 of Limitation Act, 1908 corresponding to section 22
of Limitation Act, 1963)”
On the other hand, learned counsel for the respondents
contended that the suit was barred by limitation and therefore, this prayer of
the appellant cannot be granted.
I have heard learned counsel for the parties and have perused
the impugned judgments and also the record.
It has been stated by the respondents that the appellant was
appointed as Auxiliary Nurse Midwife without following the process of law
i.e. no regular procedure was followed before her appointment. This factum
was not denied by the appellant by filing any application or rejoinder to the
pleadings as raised in the written statement and that being the situation, the
initial appointment of the appellant was not in accordance with the rules.
The settled proposition of law is that if a person is not appointed in
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accordance with rules, the period of service rendered by such an incumbent
cannot be treated for the purposes of grant of any consequential service
benefits. That apart, the foremost question that arises is that her services
were terminated in the year 1976. Prior to that she was asked to submit her
resignation as she proceeded on study leave to undergo course of Staff
Nurse without there being any provision for the same. She however did not
abandon her course and continued to persist with it. Situation therefore
would be that she has continued to be on leave unauthorisedly leading to the
termination of her services. She was appointed afresh as Staff Nurse.
In this view of the matter, when the services of the appellant
had been terminated and she was appointed afresh, she cannot derive any
benefit of the past services specially when the same was not in accordance
with rules. She also did not challenge her order of termination. Had she
done so with success then the effect of termination order would have been
undone. The present prayer that has been made could not have been
answered without the terminatin order having set aside which is a
continuous stumbling block for her. The prayer made now amounts to
granting her something from the back door what she could not achieve from
the front door. There is thus no merit in the appeal, the same is hereby
dismissed.
February 25, 2009 (Mahesh Grover) rekha Judge