Regular Second Appeal No.954 of 2009 [ 1 ] IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... Regular Second Appeal No.954 of 2009 Decided on : May 20, 2009 State of Punjab and others ... Appellants VERSUS Sunder Dass ... Respondent CORAM : HON'BLE MR.JUSTICE A.N.JINDAL Present: Mr.Surender Kapoor, Additional Advocate General Punjab for the appellants. A.N.JINDAL, J.- The defendant/appellant - State of Punjab (herein referred as `the appellant') has assailed the judgment and decree dated 5.11.2008 passed by Additional District Judge, Ferozepur, whereby, while setting aside the judgment and decree dated 11.10.2006 passed by Additional Civil Judge (Sr.Divn.), Ferozepur, the suit of Sunder Dass, plaintiff – respondent (herein referred as `the respondent') was decreed and he was held entitled to seniority w.e.f. 6.5.1981 and all other consequential benefits of service. Brief facts of the case are that the respondent joined the Transport Department on 7.3.1981 as Conductor on regular basis. He was retrenched from service on 3.8.1985 and re-appointed w.e.f. 9.8.1985 on the basis of same terms and conditions. However, on his Regular Second Appeal No.954 of 2009 [ 2 ] representation, the interregnum period was treated as `earned leave'. On the basis of this, the respondent claimed that he be given seniority w.e.f. 7.3.1981 and not from 9.8.1985. The suit was contested, taking the plea that the respondent was initially appointed as Conductor on temporary /ad hoc basis on 7.3.1981 and thereafter, vide order dated 8.5.1985, he was re-appointed w.e.f. 6.5.1985. It was further elaborated that the respondent joined service on 7.3.1981 and his services were dispensed with on 14.2.1984 for want of vacancy, however, he was re-appointed on 28.2.1984. Then, again for want of vacancy, his services were dispensed with w.e.f. 2.8.1985, but he was re-appointed on 9.8.1985 and thereafter, he has been regularly working as Conductor. On the pleadings of the parties, the following issues were framed:- “1.Whether the plaintiff is entitled to seniority w.e.f. 7.3.1981 ? OPP 2. Whether the plaintiff is entitled to declaration as prayed for?OPP 3. Whether the suit is time-barred? OPD 4. Relief.” Upon appraisal of the evidence, led by both the parties, the Trial Court dismissed the suit, but he succeeded in appeal. Hence, the present appeal by the State of Punjab. Heard Additional Advocate General and perused the record. A perusal of the appointment order dated 9.3.1981 (Ex.D1) Regular Second Appeal No.954 of 2009 [ 3 ] shows that the respondent was appointed purely on temporary/ ad hoc basis upto 31.3.1981, but the appointment order dated 8.5.1981 (Ex.D2) shows that he was appointed on regular basis w.e.f. 6.5.1981 and continued upto 14.2.1984, when his services were dispensed with. In other words, the respondent regularly worked as Conductor for a considerable period of more than two years and nine months. The appointment order dated 8.5.1981 (Ex.D2) was bearing a condition that the respondent would be on probation for two years and he would also be bound by the terms and conditions of the order. He was given a Conductor number. So far as the question of break in his service is concerned, the same has been regularised by the competent authority and the two breaks i.e, of 14 days in February, 1984 and of 15 days in April/May, 1985 were not on account of any fault on the part of the respondent. As the appointment order dated 8.5.1981 (Ex.D2) clearly depicts that the respondent was given appointment w.e.f. 6.5.1981 on regular basis, therefore, he could not be retrenched from service without following the procedure as provided under Rule 8 of the Punjab Civil Service Rules. It is also well-settled that minor breaks here and there, which occurred due to the fault on the part of the appellant do not affect the seniority of an employee and the same could be due to the internal arrangement of the appointing authority. Reliance can be placed on the judgment of the Constitution Bench of the Apex Court in case Rudra Kumar Sain and others vs. Union of India and others, Recent Service Judgments 2000(4) Vol.42, page 1, wherein, it was held as under:- Regular Second Appeal No.954 of 2009 [ 4 ] “A person who possesses the requisite qualification for being appointed to a particular post and then appointed with the approval and consultation of the appropriate authority and continues to hold the post for a fairly long period, then such appointment cannot be held to be stop gap or fortuitous or purely adhoc” In case, R.Hariharan and others vs. K.Balachandran Nair and others, 2001(1) Labour & Services Judicial Reports 33, the Apex Court held as under:- “Once, it is held that the regularisation of services of the appellants were in accordance with the provisions of the Act, the services of the appellants prior to regularisation were required to be counted while determining their inter-se seniority in the cadre.” In the instant case, the appellant himself, after reemploying the respondent regularised the period of breaks while treating the same as on earned leave. Thus, now there is no reason to exclude the initial period of his employment from being counted for determining his seniority. No substantial question of law arises or is involved in the present appeal. As such, while finding no fault with the impugned judgment, the appeal is dismissed. ( A.N.JINDAL ) JUDGE May 20, 2009 `gian'