IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 1101 of 2008 Date of Decision : July 13, 2009 State of Haryana and another ....Appellants Versus Balbir Singh .....Respondent CORAM : HON'BLE MR. JUSTICE T.P.S. MANN Present: Mr. Deepak Jindal, Assistant Advocate General, Haryana Mr. R.N.Lohan, Advocate T.P.S. MANN, J. Suit for declaration filed by the respondent that he was entitled to be treated as permanent and confirmed employee w.e.f. 1.9.1986 and order dated 1.5.1993 confirming his services as regular confirmed employee w.e.f. 1.5.1992 was against facts and law, nonest, not warranted by law and unconstitutional, was decreed by Civil Judge (Senior Division), Jind vide judgment dated 29.10.2005, whereby order dated 1.5.1993 was set-aside for all intents and purposes and the respondent was held entitled to be promoted/regularised to the post of Welder w.e.f. 1.10.1987 when one Azad Singh was promoted to the post of Welder. Aggrieved of the same, the defendants filed first appeal, which was dismissed by learned Additional District Judge(II), Jind vide judgment dated 24.12.2007. Thus, the RSA No. 1101 of 2008 -2- defendants are in the present second appeal under Section 100 of the Code of Civil Procedure. According to the plaintiff/respondent, he was appointed as Assistant Welder in the office of defendant No.2 on 1.9.1986 and lateron promoted as Welder in the year 1989. He had been continuously working as such and had attained the status of permanent regular confirmed employee. However, vide order dated 1.5.1993, defendant No.2 confirmed his services w.e.f. 1.5.1992 whereas he was entitled to be promoted w.e.f. 1.9.1986 as he was in continuous service since then. The suit was opposed by the defendants by submitting that the plaintiff had worked as Helper w.e.f. 1.9.1986 to 31.12.1989. He was appointed as Assistant Welder on 1.9.1990 and worked as such upto 4.1.1991 at Gurgaon. Thereafter he was transferred to Jind in the office of defendant No.2, who vide his order dated 1.5.1993 regularised his services as Helper Welder w.e.f. 1.5.1992. He was not entitled to attain the status of permanent regular and confirmed employee w.e.f. 1.9.1986. After going through the pleadings of the parties and the evidence led by them, learned Courts below held that the plaintiff was entitled to be promoted/regularised to the post of Welder w.e.f. 1.10.1987 when one Azad Singh was promoted to the post of Welder, along with all the consequential benefits. Learned counsel for the appellants submitted that the plaintiff/respondent challenged the order dated 1.5.1993 by filing the suit on 22.9.2005, which was beyond the prescribed period of limitation, i.e., 12 RSA No. 1101 of 2008 -3- years and, therefore, the suit was liable to be dismissed. Learned trial Court had framed issue No.2 as to whether the suit of the plaintiff was within the period of limitation. The onus to prove the said issue was put on the defendants. Despite the same, no positive and cogent evidence was led by the defendants. Even at the time of the arguments before the learned trial Court, this issue was not pressed by either of the parties. Moreover, the civil suit had been initially filed in the trial Court on 12.2.2002, i.e., within limitation, as is clear from the heading of the impugned judgments and decrees passed by the Courts below. Under these circumstances, it could not be said that the suit had been filed beyond the prescribed period of limitation as it had been filed within nine years of the passing of the order dated 1.5.1993. Learned counsel for the appellants also submitted that the plaintiff-respondent should not have been granted the benefit of promotion to the post of Welder w.e.f. 1.10.1987 when Azad Singh was promoted as such. It had appeared during the cross-examination of PW1 Sube Singh, Clerk, Haryana Roadways, Jind, that the plaintiff was not senior to Azad Singh as he was appointed as Assistant Welder whereas Azad Singh was appointed as a Welder. Aforementioned Sube Singh had also proved document Ex.P-2 on the basis of which the plaintiff had been working as Assistant Welder. Vide order Ex. P-3 dated 1.8.2001, the plaintiff was promoted against the post of Assistant Welder on 1.8.2001. Vide transfer order Ex.P-5, the plaintiff was transferred to the office of General Manager, Haryana RSA No. 1101 of 2008 -4- Roadways, Jind. In the said order, the plaintiff was shown to be working as Assistant Welder. As the plaintiff had already been promoted as Assistant Welder, there was no question of his being promoted, once again, to the post of Assistant Welder from the post of Helper Welder vide order dated 1.8.2001 Ex.P-3. There is no denial of the fact that Azad Singh was appointed in the year 1987, whereas the plaintiff was appointed as Assistant Welder on 1.9.1986. Under these circumstances, learned Courts below were justified in giving the benefit of service to the plaintiff from 1.10.1987 by holding him entitled to be promoted to the post of Welder when Azad Singh was promoted as such. The concurrent findings of facts arrived at by learned Courts below cannot be interfered with in the second appeal. No question of law, much less substantial questions of law, as claimed by learned counsel for the appellants, arise for consideration in the present second appeal. The appeal is, accordingly, dismissed. ( T.P.S. MANN ) July 13, 2009 JUDGE ajay-1