Punjab-Haryana High Court
Kishori Lal vs State Of Haryana And Ors on 20 January, 2023
CM-1296-C-2015 in/and
RSA No. 456 of 2015 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
(212) CM-1296-C-2015 in/and
RSA No. 456 of 2015 (O&M)
Date of Decision : 20.01.2023
Kishori Lal
...Appellant
Versus
State of Haryana and others
...Respondents
CORAM: HON'BLE MR. JUSTICE HARSIMRAN SINGH SETHI
Present: Mr. S.S. Randhawa, Advocate for the appellant.
Ms. Vibha Tewari, Assistant Advocate General, Haryana.
***
Harsimran Singh Sethi J. (Oral)
CM-1296-C-2015
Present application has been filed seeking condonation of delay
of 04 days in filing the appeal.
Keeping in view the averments made in the application, which
is duly supported by an affidavit, the same is allowed and delay of 04 days
in filing the appeal is condoned.
CM-1270-C-2015
Application is allowed, as prayed for.
RSA-456-2015
The present regular second appeal has been filed by the
appellant-plaintiff challenging the order dated 05.11.2011 passed by the
trial court by which the suit filed by the appellant-plaintiff was dismissed as
well as the order dated 20.08.2014 by which, the appeal preferred against
the dismissal of the suit by the trial court, was also dismissed by the lower
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appellate court.
Before coming to the arguments raised, certain facts need to be
enumerated so that the controversy in hand could be appreciated in correct
prospective. Appellant-plaintiff was appointed as S.S. Master in
Government High School, Bairawas, Tehsil and District Mahendragarh on
17.08.1982 through employment exchange though, the said appointment
was not through the regular mode of selection for appointment to the post of
S.S. Master. While working on the post of S.S. Master, the posts of
Language Teacher under the department of Tehcnical Education were
advertised and the appellant-plaintiff competed for the same and was
ultimately selected on the said post on 26.07.1983 on which post, he joined
on 06.08.1983. After joining the post of Language Teacher in the Technical
Education Department, the pay of the appellant-plaintiff was fixed in the
pay scale of `525-1050/-, which is the pay scale admissible for the post of
Language Teacher. The appellant-plaintiff kept on working on the post of
Language Teacher but after a period of 23 years of appointment, the present
suit was filed by the appellant-plaintiff claiming that at the time when he
joined as a Language Teacher on 06.08.1983 while working as S.S. Master
in the Department of Education, which is a different department and he was
getting basic pay of `600/-, which pay should have been protected by the
Technical Education Department while fixing his salary as a Language
Teacher upon the selection in the year 1983.
Notice of motion was issued in the suit. Respondents appeared
and took an objection that the claim being raised by the appellant-plaintiff
was not sustainable as the appointment of the appellant-plaintiff to the post
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of S.S. Master was only a temporary appointment and that too not through
proper process of selection hence, benefit of said appointment to the post of
S.S. Master cannot be given while making regular selection for the post of
Language Teacher and as it was for the very first time that the appellant-
plaintiff was recruited on regular basis as Language Teacher in the pay scale
of `525-1050/- in the year 1983, his pay was rightly fixed at the minimum
pay scale of `525/- as given to the other Language Teachers, who were
appointed along with the appellant-plaintiff.
After going through the facts of the case and the evidence lead,
the trial court dismissed the suit of the appellant-plaintiff on the ground that
not only the claim was time barred having been filed after 23 years of
accruing of the cause of action, even otherwise on merits, hence no benefit
of the previous service of S.S. Master in the Education Department could
have been given in the Technical Education Department as the appellant-
plaintiff was not a regular employee in the Education Department while
working as S.S. Master.
The appellant-plaintiff filed an appeal, which was also
dismissed by the lower appellate court vide order dated 28.04.2014 holding
that the judgment of the trial court dated 05.11.2011 is as per the facts and
law and hence needs no interference.
In the present regular second appeal, both the orders i.e. the
order dated 05.11.2011 passed by the trial court dismissing the suit as well
as the order dated 20.08.2014 passed by the lower appellate court
dismissing the appeal filed by the appellant-plaintiff have been impugned.
Learned counsel for the appellant-plaintiff argues that once the
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appellant-plaintiff was being given pay on the basis of a regular pay scale,
even if, he was continuing on a temporary basis as S.S. Master, the said pay
needs to have been protected by the Technical Education Department after
his regular appointment as a Language Teacher in July, 1983. Learned
counsel for the appellant-plaintiff further argues that once even while
working as S.S. Master, an increment was extended to him, the benefit of
same needed to be protected in the subsequent appointment. Though, the
argument has been raised but no rule or regulation has been cited or
produced before this Court for the grant of said benefit. No such rule has
been brought on record by way of evidence to support the claim raised in
the civil suit. Once, it has been conceded before this Court that the
appointment as a S.S. Master in the Education Department was not on
regular basis, no rule, which permits the benefit of temporary service while
being recruited on regular basis subsequently, has been cited so as to extend
the benefit of temporary service after regular appointment and that too
through open competition. In the absence of any rule being cited to support
the claim, it cannot be said that the judgment of the trial court as well as that
of the lower appellate court is bad either on facts or on law.
Further, learned counsel for the appellant-plaintiff has not been
able to discharge the onus of proving that the suit filed in the year 2005 was
within the prescribed limit as concededly, the protection of salary is being
claimed from the year 1983 onwards and no explanation had come for filing
the suit after 23 years.
No further argument has been raised.
Keeping in view the above, as no perversity in the findings of
the courts below has been pointed out by learned counsel for the appellant-
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plaintiff either on facts or on law, no interference is called for by this Court
in the present regular second appeal.
Dismissed.
January 20, 2023 (HARSIMRAN SINGH SETHI)
kanchan JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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