Regular Second Appeal No. 576 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 576 of 2009 Date of Order: 03.08.2009 Kailash Chander ....Appellant Versus State of Haryana and another ..Respondents CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA Present: Mr. P.K.Sachdev,Advocate for the appellant. RAJIVE BHALLA, J (Oral). The appellant challenges the judgments and decrees dated 07.09.2006 and 21.08.2008, passed by the Civil Judge (Junior Division), Chandigarh and the District Judge, Chandigarh, dismissing his suit and his appeal, respectively. The appellant filed a suit for declaration claiming seniority as a clerk with effect from 1969, the date of his initial appointment. The appellant averred that he was appointed as a clerk on 27.01.1969 but his services were dispensed with on 7.01.1972. He was thereafter appointed as a conductor on temporary basis with effect from 19.01.1973 and eventually promoted as a clerk vide order dated 11.01.1978. The appellant prays that as he had completed 240 days as a clerk, the order of termination dated 07.01.1972 is illegal and therefore, the respondents were obliged to calculate the period of service after taking into account the Regular Second Appeal No. 576 of 2009 -2- period of service by the appellant from 27-01-1969 to 10-01-1972. On the basis of the pleadings, the trial court framed issues and called upon the parties to lead evidence. Upon consideration of the pleadings, the evidence adduced and the arguments addressed, the trial court dismissed the suit by holding that the appellant's challenge to the orders passed in the year 1972 was hopelessly time barred. It is also held that as the appellant was given a fresh appointment as a conductor on 18.01.1973, and then promoted as a clerk, he was not entitled to the benefit of his earlier service as a clerk. Aggrieved by the aforementioned judgment and decree, the appellant filed an appeal. The District Judge, Chandigarh, vide judgment and decree dated 21.08.2008, dismissed the appeal and affirmed the findings recorded by the trial court. Counsel for the appellant submits that the order dated 07.01.1972 dispensing with the appellant's service is null and void as the appellant had put in 240 days of service and would therefore be deemed to be in continuous service upto his appointment as a conductor. It is further submitted if the appellant was appointed as a conductor he could not have been promoted to the cadre of clerks, thus establishing the appellant's case that as he continued to work as a clerk he is entitled to compute the period from 27.01.1969 to 10.01.1972, as service rendered as a clerk. In support of his argument, the appellant has framed the following questions of law:- “i) Whether the appellant/plaintiff who was appointed as a clerk in the year 1969 through a proper source of recruitment, could be thereafter appointed as a conductor for which post the appellant/plaintiff had never applied? ii) Whether the appellant/plaintiff could be promoted from Regular Second Appeal No. 576 of 2009 -3- one cadre to another cadre in the absence of any such rules or instructions? iii) Whether the period from 07.01.1972 to 19.01.1973 i.e. from the date of discontinuation to the post of clerk to the date of his adjustment against the post of a conductor for the purpose of his pay would not be deemed to be continuous service as defined under Section 25-B of the Industrial Disputes Act?” I have heard counsel for the appellant, perused the impugned judgments, and express my inability to hold that the judgments suffer from any error of law or that the questions of law framed by counsel for the appellant arise for consideration. The appellant was appointed as a clerk with effect from 27.01.1969 for a period of six months. His appointment was extended from time to time till it eventually expired on 10.01.1972. The appellant was thereafter appointed as a conductor in 19-01-1973, underwent training for the said post and worked as such. He was promoted as a clerk with effect from 11.01.1978. The courts below have recorded concurrent findings that the appellant is not entitled to compute his service from 08.12.1969 to 10.01.1972 towards his service as a clerk. The appellant's initial appointment as a clerk and his subsequent appointment as a conductor, were two distinct appointments. The argument that as the appellant had completed 240 days on his initial appointment and therefore this period has to be included in his subsequent service is entirely misplaced. Even otherwise, the appellant was offered and accepted a fresh appointment as a conductor as is apparent from the fact that he continued to work as such for almost five years till he was promoted as a clerk. The argument that the appellant could not be promoted from the cadre of conductor to clerk is irrelevant as the appellant accepted this appointment and continued to work as such. As the questions of law Regular Second Appeal No. 576 of 2009 -4- framed by counsel for the appellant do not arise for consideration, the appeal is dismissed with no order as to costs. August 03, 2009 (RAJIVE BHALLA) nt JUDGE