{"id":19664,"date":"2009-02-25T00:00:00","date_gmt":"2009-02-24T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/amrit-kaur-vs-punjab-state-government-through-on-25-february-2009"},"modified":"2016-03-11T14:07:45","modified_gmt":"2016-03-11T08:37:45","slug":"amrit-kaur-vs-punjab-state-government-through-on-25-february-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/amrit-kaur-vs-punjab-state-government-through-on-25-february-2009","title":{"rendered":"Amrit Kaur vs Punjab State Government Through … on 25 February, 2009"},"content":{"rendered":"
Punjab-Haryana High Court<\/div>\n
Amrit Kaur vs Punjab State Government Through … on 25 February, 2009<\/div>\n
RSA No. 895 of 2005                  1\n\n        IN THE HIGH COURT OF PUNJAB AND HARYANA\n                     AT CHANDIGARH\n\n                           RSA No.895 of 2005\n                          Decided on : 25 -02-2009\n\nAmrit Kaur\n                                           ....Appellant\n\n                      VERSUS\n\nPunjab State Government through Secretary and others\n                                         ....Respondents<\/pre>\n
CORAM:- HON’BLE MR. JUSTICE MAHESH GROVER<\/p>\n
Present:-    Mr. Ashok Sharma Nabhewala, Advocate
\n             for the appellant<\/p>\n
             Mr. N.S.Virk, Addl. A.G., Punjab.\n<\/p>\n
\nMAHESH GROVER, J<\/p>\n
             This is plaintiff’s second appeal against the judgment of the<\/p>\n
learned Trial Court dated 22.10.2002 and that of the First Appellate Court<\/p>\n
dated 20.9.2004.\n<\/p>\n
             The undisputed facts are that the plaintiff was appointed as an<\/p>\n
Auxiliary Nurse Midwife on 23.5.1964.       She applied for permission to<\/p>\n
undergo General Nursing Course through proper channel w.e.f September,<\/p>\n
1972. She was accordingly granted study leave from 6th September, 1972<\/p>\n
and on 7th September, 1972 pursuant to the permission granted she joined<\/p>\n
Nehru Hospital, Chandigarh for undergoing the aforesaid course. On 4th<\/p>\n
May, 1973 defendant no. 2 i.e. Director, Health Services & Family Welfare,<\/p>\n
Chandigarh wrote to the defendant no. 7 Medical Superintendent, Nehru<\/p>\n
Hospital directing him not to permit the appellant to continue with the<\/p>\n
course and directed him not to pay stipend. The plaintiff-appellant however
\n RSA No. 895 of 2005                    2<\/span><\/p>\n
persisted with the course. She was directed to explain reasons as to under<\/p>\n
whose orders she joined Nehru Hospital and whether she has resigned from<\/p>\n
the previous post. She replied that defendant no.2 i.e. Director, Health<\/p>\n
Services & Family Welfare, Chandigarh was informed by Director, Health<\/p>\n
and Family Planning, Patiala vide his letter dated 9.8.1972 and she was<\/p>\n
relieved from duty of Auxiliary Nurse Midwife under the authority of<\/p>\n
defendant no.4. She reiterated her stand vide letter dated 20.12.1973. The<\/p>\n
Director, Health Services & Family Welfare, Chandigarh in turn informed<\/p>\n
the defendants no. 4 and 7 that she could not have been granted study leave<\/p>\n
from the date i.e. 6th September, 1972, accordingly, as she was relieved of<\/p>\n
her duties she should not be permitted to join her duties as Auxiliary Nurse<\/p>\n
Midwife after completion of her course and she should submit her<\/p>\n
resignation and further directed to fix the responsibilty as to why plaintiff-<\/p>\n
appellant was relieved to join her course.        However, she successfully<\/p>\n
completed her course on 31.3.1975 and submitted her joining report to<\/p>\n
defendant no.2 ie. Director, Health Services & Family Welfare, Chandigarh<\/p>\n
on 1.4.1975. Another order was passed superseding the earlier orders and<\/p>\n
she was allowed to join duties vide order dated 9.4.1975 in the office of<\/p>\n
respondent no.8 from where she was relieved.\n<\/p>\n
             The appellant thereafter applied for the post of Staff Nurse on<\/p>\n
27.5.1975 to respondent no. 2 through proper channel and she was selected<\/p>\n
for the post vide letter dated 27.6.75 and was directed to report on duty<\/p>\n
which she joined on 6.7.1975 after having been relieved from the post of<\/p>\n
Auxiliary Nurse Midwife on 5.7.1975. The plaintiff-appellant thereafter<\/p>\n
prayed in her suit that she was entitled to the following reliefs:-<\/p>\n
             1) salary for August, 1972 and 1.9.72 to 5.9.72
\n RSA No. 895 of 2005                    3<\/span><\/p>\n<\/blockquote>\n
            2) salary for 1.4.75 to 5.7.75 as ANM on joining duty after<\/p>\n
               completion of course.\n<\/p><\/blockquote>\n
            3) Sanction of study leave and study allowance for the period of<\/p>\n
               General Nursing Course with effect from 7.9.72 to 31.3.1975<\/p>\n
               i.e. For two years 3 months and 24 days and after making so<\/p>\n
               orders and payment of difference of stipend. Updating the<\/p>\n
               service book by verifying the service w.e.f 23.5.64 to date<\/p>\n
               because the plaintiff is at verge of superannuation retirement.<\/p><\/blockquote>\n
            The respondents contested the suit and contended that the<\/p>\n
plaintiff-appellant had joined as Auxiliary Nurse Midwife on ad hoc basis<\/p>\n
on 23.5.1964 for which no application through proper channel was received<\/p>\n
and as such she was not selected as Government incumbent for Staff Nurse<\/p>\n
and there is no provision of study leave to Auxiliary Nurse Midwife and<\/p>\n
therefore she was relieved from her services and denied the claim to salary<\/p>\n
as set up by the plaintiff-appellant.      It is also contended that plaintiff-<\/p>\n
appellant was directed vide order dated 1.3.73 and 3.5.73 to explain as to<\/p>\n
under whose permission she was undergoing the course of Staff Nurse<\/p>\n
which was totally contrary to the rules.            Finding her explanation<\/p>\n
unsatisfactory she was directed to submit resignation with effect from the<\/p>\n
date when she was relieved by Chief Medical Officer, Sangrur. She was<\/p>\n
relieved from the post of Auxiliary Nurse Midwife with a condition that in<\/p>\n
case her leave is not granted she will submit her resignation. On 15.6.1976,<\/p>\n
Secretary to Punjab Government, Health and Family Welfare Department<\/p>\n
rejected the proposal of allowing the plaintiff to rejoin her duties after<\/p>\n
completion of her course and her prayer for treating her training period as<\/p>\n
extra-ordinary leave was also rejected. Therefore, the claim of the appellant
\n RSA No. 895 of 2005                    4<\/span><\/p>\n
was denied.\n<\/p>\n
              Trial Court framed the following issues:-\n<\/p>\n
              1) Whether the plaintiff is entitled to declaration that the<\/p>\n
                withholding of his salary was illegal, null and void and<\/p>\n
                against the rules? OPP.\n<\/p>\n
              2) Whether the plaintiff is entitled to mandatory injunction for<\/p>\n
                counting of the training period as qualified service and was<\/p>\n
                entitled to study leave and the allowance? OPP.\n<\/p>\n
              3) Whether the suit of the plaintiff is barred by limitation? OPD<\/p>\n
              4) Whether the suit of the plaintiff is not maintainable in the<\/p>\n
                present form? OPD.\n<\/p>\n
              5) Whether the plaintiff has no cause of action to file the<\/p>\n
                present suit? OPD.\n<\/p>\n
              6) Relief.\n<\/p>\n
              Learned Trial Court and also the First Appellate Court came to<\/p>\n
the conclusion that the order of termination was passed on 12.8.1976 and<\/p>\n
therefore, the suit was obviously barred by limitation.<\/p>\n
              Assailing the aforesaid findings by way of the present Regular<\/p>\n
Second Appeal, learned counsel for the appellant stated that he is not<\/p>\n
insisting on first two prayers made in the plaint i.e salary for August, 1972<\/p>\n
and 1.9.72 to 5.9.72 and salary for 1.4.75 to 5.7.75 as ANM on joining duty<\/p>\n
after completion of course. However, he stated that as far as his claim no.3<\/p>\n
is concerned, the appellant is entitled to the counting of service rendered by<\/p>\n
her as Auxiliary Nurse Midwife towards the service which she rendered as<\/p>\n
Staff Nurse for the purpose of commuting the retiral benefits etc. He stated<\/p>\n
that this being the recurring as well as continuous loss, the period of
\n RSA No. 895 of 2005                      5<\/span><\/p>\n
limitation did not stand in her way. Reliance was placed on case titled as<\/p>\n
‘Union of India versus Tarsem Singh’ SC 2008 (4) SCT 19 wherein it has<\/p>\n
been observed as under:-\n<\/p>\n
                           “Para 4. The principles underlying continuing<\/p>\n
            wrongs and recurring\/successive wrongs have been applied to<\/p>\n
            service law disputes. A ‘continuing wrong’ refers to a single<\/p>\n
            wrongful       act   which       causes         a    continuing     injury.<\/p>\n
            ‘Recurring\/successive    wrongs’          are       those   which    occur<\/p>\n
            periodically, each wrong giving rise to a distinct and separate<\/p>\n
            cause of action. This Court in Balakrishna S.P.Waghmare v.<\/p>\n
            Shree Dhyaneshwar Maharaj Sansthan (AIR<\/a> 1959 SC 798),<\/p>\n
            explained the concept of continuing wrong ( in the context of<\/p>\n
            section 23 of Limitation Act, 1908 corresponding to section 22<\/p>\n
            of Limitation Act, 1963)”<\/p><\/blockquote>\n
            On the other hand, learned counsel for the respondents<\/p>\n
contended that the suit was barred by limitation and therefore, this prayer of<\/p>\n
the appellant cannot be granted.\n<\/p>\n
            I have heard learned counsel for the parties and have perused<\/p>\n
the impugned judgments and also the record.\n<\/p>\n
            It has been stated by the respondents that the appellant was<\/p>\n
appointed as Auxiliary Nurse Midwife without following the process of law<\/p>\n
i.e. no regular procedure was followed before her appointment. This factum<\/p>\n
was not denied by the appellant by filing any application or rejoinder to the<\/p>\n
pleadings as raised in the written statement and that being the situation, the<\/p>\n
initial appointment of the appellant was not in accordance with the rules.<\/p>\n
The settled proposition of law is that if        a person is not appointed in
\n RSA No. 895 of 2005                   6<\/span><\/p>\n
accordance with rules, the period of service rendered by such an incumbent<\/p>\n
cannot be treated for the purposes of grant of any consequential service<\/p>\n
benefits. That apart, the foremost question that arises is that her services<\/p>\n
were terminated in the year 1976. Prior to that she was asked to submit her<\/p>\n
resignation as she proceeded on study leave to undergo course of Staff<\/p>\n
Nurse without there being any provision for the same. She however did not<\/p>\n
abandon her course and continued to persist with it. Situation therefore<\/p>\n
would be that she has continued to be on leave unauthorisedly leading to the<\/p>\n
termination of her services. She was appointed afresh as Staff Nurse.<\/p>\n
              In this view of the matter, when the services of the appellant<\/p>\n
had been terminated and she was appointed afresh, she cannot derive any<\/p>\n
benefit of the past services specially when the same was not in accordance<\/p>\n
with rules. She also did not challenge her order of termination. Had she<\/p>\n
done so with success then the effect of termination order would have been<\/p>\n
undone.      The present prayer that has been made could not have been<\/p>\n
answered without the terminatin order having set aside which is a<\/p>\n
continuous stumbling block for her. The prayer made now amounts to<\/p>\n
granting her something from the back door what she could not achieve from<\/p>\n
the front door. There is thus no merit in the appeal, the same is hereby<\/p>\n
dismissed.\n<\/p>\n<\/p>\n
February 25, 2009                             (Mahesh Grover)\nrekha                                            Judge\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
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. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,28],"tags":[],"class_list":["post-19664","post","type-post","status-publish","format-standard","hentry","category-high-court","category-punjab-haryana-high-court"],"yoast_head":"\nAmrit Kaur vs Punjab State Government Through ... on 25 February, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/amrit-kaur-vs-punjab-state-government-through-on-25-february-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Amrit Kaur vs Punjab State Government Through ... on 25 February, 2009 - 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