Prem Kishan Vs. Haryana State and ors. - Court Judgment

Excerpt:
- m.m. kumar, j.1. this is plaintiffs appeal filed under section 100 of the code of civil procedure, 1908 (for brevity, 'the code') challenging concurrent findings recorded by both the courts below holding that the plaintiff-appellant was not entitled to count the temporary period of service as clerk rendered by him from 3.1.1968 to 19.4.1973 for the purposes of seniority. both the courts below have also recorded a finding of fact that the suit is time barred. accordingly, the following two questions of law would arise for determination in the appeal:1. whether in the facts and circumstances of the case the suit is time barred?2. whether the plaintiff-appellant is entitled to reckon the period of his temporary service from 3.1.1968 to 19.4.1973 as clerk for the purposes of seniority?re: question no. 1.2. on the first question there are categorical findings that the suit was filed by the plaintiff-appellant on 12.8.1983. the further finding of facts recorded by both the courts below is that a joint seniority list of ministerial as well as non-ministerial staff was finalised as it stood on 1.1.1980. the plaintiff appellant represented against his placement in the seniority list and the same was rejected on 5.2.1980 (ex.p-2). it is further found as a fact that in the letter of appointment after his regular selection by the haryana service selection board, dated 13.7.1973 (ex.d-6) it has been made crystal clear that his seniority would be considered from the date when he was recommended by the subordinate selection board. the aforesaid fact was fortified by the application submitted by the plaintiff-appellant himself on 23.11.1981 (ex.d-11), which clearly shows that his date of appointment has been considered as 19.4.1973 for the purposes of seniority. on the basis of the aforesaid finding, both the courts below came to the conclusion that the cause of action had arisen to the plaintiff-appellant on 1.1.1980 when the seniority list was issued or from 5.2.1980 when his representation was rejected. if the aforesaid dates are the material dates then the suit should have been filed within three years two months from those dates whereas the suit was filed on 12.8.1983. therefore, both the courts have found that the suit was time barred and have dismissed the suit on that score.3. having heard learned state counsel, i am of the considered view that the question of limitation is a mixed question of law and facts as has been held by hon'ble the supreme court in the case of ramesh b. desai v. bipin vadilal mehta : (2006)5 s.c.c. 638. the view of their lordships' is discernible from para 19 of the judgment, which reads thus:19. a plea of limitation cannot be decided as an abstract principle of law divorced from facts as in every case the starting point of limitation has to be ascertained which is entirely a question of fact. a plea of limitation is a mixed question of law and fact. the question whether the words 'barred by law' occurring in order 7 rule 11(d) cpc would also include the ground that it is barred by law of limitation has been recently considered by a two-judge bench of this court to which one of us was a member (ashok bhan, j.) in balasaria construction (p) ltd. v. hanuman seva trust, (2006)5 s.c.c. 658, it was held: (scc p. 661, para 8)8. after hearing counsel for the parties, going through the plaint, application under order 7 rule 11(d) cpc and the judgments of the trial court and the high court, we are of the opinion that the present suit could not be dismissed as barred by limitation without proper pleadings, framing of an issue of limitation and taking of evidence. question of limitation is a mixed question of law and fact. ex facie in the present case on the reading of the paint it cannot be held that the suit is barred by time.this principle would be equally applicable to a company petition. therefore, unless it becomes apparent from the reading of the company petition that the same is barred by limitation the petition cannot be rejected under order 7 rule 1 l(d) cpc.4. further findings have come on record that the suit could have been filed within three years two months from the material date i.e. 5.2.1980 when the representation of the plaintiff-appellant directed against his placement in the seniority list was rejected. the suit having been filed on 12.8.1983, has been rightly found to be time barred. therefore, there is no exception provided to interfere in the aforesaid findings, which are hereby affirmed. the question of law is decided against the plaintiff-appellant. re: question no. 2.5. on the second question, there are categorical findings that the plaintiff-appellant was given purely temporary appointment on the post of clerk on 3.1.1968. he was recruited in a regular manner by the haryana service selection board in july 1972 and appointment letter was issued on 9.4.1973. in pursuance to the appointment letter he joined on 19.4.1973. it is now well settled that the temporary period of service or ad hoc service cannot qualify for the purposes of seniority. the basic reason for ignoring ad hoc/temporary service of an employee is that no fair procedure consistent with articles 14 and 16(1) of the constitution is followed while making such ad hoc appointments. according to the fair procedure, all competing claims by inviting applications have to be considered. it is out of such applicants that selection and appointments are made. consequently, it is from the date of appointment in pursuance of such regular selection that the period qualified for the purposes of seniority. in that regard reliance may be placed on a constitution bench judgment of hon'ble the supreme court rendered in the case of direct recruit class ii engg. officers association v. state of maharashtra : all 1990 s.c. 1607; y.h. pawar v. state of karnataka : (1996)10 s.c.c. 444 and union of india v. dharam pal : (2009)4 s.c.c. 170. in dharam pal's case (supra) hon'ble the supreme court has explained the principles in the following words:an employee appointed to a post according to rules is entitled to seniority from the date of his appointment and not from the date of confirmation. however, where initial appointment is ad hoc and not according to rules and the appointment is made as a stopgap arrangement, period of officiation does not count for seniority. when ad hoc appointment is made, the same should be done according to rules. if mandatory provisions of the rules are not complied with, the period does not count for seniority.6. all the aforesaid judgments do not leave any manner of doubt that the period of service rendered tin ad hoc basis would not qualify for the purposes of seniority. the findings of both the courts below on the aforesaid issue also deserves to be affirmed and the question of law is answered against the plaintiff appellant.7. as a sequel to the aforesaid discussion, this appeal fails and the same is dismissed.