High Court Punjab-Haryana High Court

Amrit Kaur vs Punjab State Government Through … on 25 February, 2009

Punjab-Haryana High Court
Amrit Kaur vs Punjab State Government Through … on 25 February, 2009
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
RSA No. 895 of 2005 6

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