IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No. 8554 of 1987 Date of decision: 12th December, 2008 Shashi Pal … Petitioner Versus Punjab State Agricultural Marketing Board and others … Respondents CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Kasturi Lal, Advocate for the petitioner. KANWALJIT SINGH AHLUWALIA, J. (ORAL) Present writ petition has been filed by Shashi Pal, Mandi Supervisor-cum-Fee Collector, Market Committee, Makhu, District Ferozepur. A prayer has been made in the writ petition that orders (Annexure P-6 and P-7) be quashed. Vide order (Annexure P-6), Mrs.Jinder Kaur, Mandi Supervisor-cum-Fee Collector, Jagraon respondent No.5 was sent back to her parent Committee, Makhu. A perusal of impugned order (Annexure P- 7) shows that Mrs.Jinder Kaur, Mandi Supervisor-cum-Fee Collector, Market Committee, Jagraon was transferred to her parent Committee, Makhu on her request so that she may get her right of promotion. It was noticed that Mrs.Jinder Kaur’s application for promotion to the post of Head Clerk-cum-Accountant was dated 7th September, 1987, whereas application of Joga Singh, Supervisor-cum-Fee Collector, Makhu was dated 21st August, 1987 and application of Shashi Pal petitioner was also dated 21st August, 1987. The Chairman of the Market Committee sought Civil Writ Petition No. 8554 of 1987 opinion of the Secretary, Mandi Board by writing a letter as to who is to be promoted after the retirement of Sukhdev Singh, Head Clerk-cum- Accountant, who had retired after attaining the age of 58 years. The Secretary, Mandi Board was asked to determine as to who is senior most among the three. A circular had been issued by the Mandi Board on 11th September, 1982 that the parent Committee of the employee will be that, where he was posted on 31st March, 1982 afternoon. Therefore, it was held that Mrs.Jinder Kaur was the senior most Mandi Supervisor-cum-Fee Collector. Therefore, Mrs.Jinder Kaur was considered senior most and was promoted to the post of Head Clerk-cum-Accountant. It was noticed that Shashi Pal, Mandi Supervisor-cum-Fee Collector, i.e. petitioner had attached a judgment of Senior Sub Judge, Bathinda, wherein circular No.160 dated 11th November, 1982 was declared illegal. On the basis of opinion of the Secretary, Mandi Board, which was considered by the Market Committee, respondent No.5 Mrs.Jinder Kaur was ordered to be unanimously promoted as Head Clerk-cum-Accountant. Briefly stated, case of the petitioner is that he was appointed as Auction Recorder on 25th January, 1974 and was promoted as Mandi Supervisor-cum-Fee Collector on 1st October, 1981. Next promotion of the petitioner was due for the post of Head Clerk-cum-Accountant, which was on the basis of seniority. Petitioner states that according to the seniority list, he was senior and was placed at No.4 and on the eve of retirement of Sukhdev Singh, Head Clerk-cum-Accountant, he was to be promoted. A representation made by the petitioner is attached as Annexure P-2. The representation is dated 21st August, 1987. It has been stated in the writ petition that Mrs.Jinder Kaur respondent No.5 had joined her duty as Typist at Market Committee, Jalalabad on 8th March, 1978. Therefore, Mr.Kasturi Lal appearing for the petitioner states that as per Section 20 of the Punjab Agricultural Produce Markets Act, 1961 (hereinafter referred to as, ‘the Act’), Mrs.Jinder Kaur 2 Civil Writ Petition No. 8554 of 1987 could not be transferred from Jalalabad to Makhu and Makhu could not be held to be her parent Committee in terms of circular No.160 dated 11th November, 1982. Petitioner is aggrieved against the adjustment of Mrs.Jinder Kaur at Market Committee, Makhu as she being senior has deprived the petitioner of the promotion and he is aggrieved that in no way Makhu could be termed as parent Committee of Mrs.Jinder Kaur, especially when she joined at Jalalabad, was promoted at Jalalabad and it has been further stated that on her request, she was transferred to Jagraon. Therefore, her coming back at Makhu is only to grant advantage to Mrs.Jinder Kaur to steal the march over the claim of petitioner. A perusal of the written statement filed by respondent No.5 shows that reliance has been placed upon circular letter No.62 dated 30th April, 1982 and circular letter No.160 dated 11th November, 1982, vide which instructions were issued for fixation of seniority and promotion of the employees liable to be transferred from one Market Committee to the other. These instructions have been annexed with the written statement of respondent No.5 as Annexure R-5/1 and R-5/2 respectively. Circular letter No.62 (Annexure R-5/1) has been issued by the Punjab State Agricultural Marketing Board relying upon Section 3(11) and Section 20(2) of the Act. Section 3(11) of the Act reads as under: “3.(11) The Chairman or subject to his control the Secretary of the Board may transfer the Secretary or any employee dealing with the accounts of one Committee to another Committee and they shall exercise such other powers and discharge such other duties as may be prescribed; Provided that any increase or decrease in emoluments of a transferred employee shall be referred to the State Government whose decision on such reference shall be final.” 3 Civil Writ Petition No. 8554 of 1987 It will be apposite here to reproduce Section 20(3) of the Act, which reads as under: “20 (3) (i) A Committee shall in the case of any other officer or servant of the Board whom it employs, pay such pension and other contribution, gratuity and allowances as may be required by the conditions of his service under the Board. (ii) A Committee may also, in the case of any of its officers and servants provide for the payment to them of such leave or other allowances, pensions or gratuities as it deems proper, and may contribute to any provident fund which may be established for the benefit of such officers and servants. (iii) A Committee shall, in case of any Government servant whom it employs, pay to the State Government such contributions towards the pension and leave allowances of such servant as may be payable under any regulation in force for the time being.” It has been stated that in view of Section 3(11) and Section 20 (2) of the Act, Secretary of the Mandi Board has a power to transfer the employee of one Committee to another Committee. Therefore, in exercise of the powers, circular was issued and it was stated therein as under: “5. … … … … it has been decided that the promotion, seniority and service benefits etc. of the employees who are transferred from one Market Committee to another Market Committee, shall be taken into consideration in the Parent Market Committee where they were first appointed and they shall be given promotion etc. in the same committee on the basis of seniority. In case the transferred employees is unable to get the promotion/ rights in the new committee which promotion/ rights he was entitled to get in the parent committee, in case he was not transferred, the transferred employee shall have the right to return to his parental committee and to get the right/ promotion.” 4 Civil Writ Petition No. 8554 of 1987 Vide circular No.160 dated 11th November, 1982 (Annexure R- 5/2), it was further clarified by the Punjab State Agricultural Marketing Board that 31st March, 1982 will be the cut off date for determining parental Committee of an employee. The operative part of circular No.160 reads as under: “On further consideration of the above matter, it has been decided that in order to secure the promotion, seniority and rights of service of the employees who have been transferred from one Market Committee to another, their Parental Committee shall be deemed to be that committee, where they were posted/ appointed immediately before 1.4.82 that is on 31.3.82 (A.N.). In future matter relating to filling up posts should be decided in view of the above clarification.” Mr.Kasturi Lal appearing for the petitioner has relied upon Appendix ‘B’ under Rule 8, to state that promotion to the post of Head Clerk-cum-Accountant is hundred percent by promotion and is to be made from among the Mandi Supervisor-cum-Fee Collectors, who have an experience of minimum period of five years. Counsel has contended that instructions (Annexure R-5/1 and R-5/2) cannot override the provisions of the Act as Section 3(11) and Section 20(2) read in conjunction with Section 20(4) of the Act, vest only power in the Secretary of the Board to transfer employees who deal with accountancy and therefore, a Mandi Supervisor- cum-Fee Collector cannot be promoted as one, who deals with the accounts of the Committee. To fortify this submission, counsel has relied upon a judgment of this Court rendered in ‘Rana Sukh Raj v. Punjab State Agricultural Marketing Board’ reported as 1996 (1) SCT 602, wherein it has been held that Mandi Supervisor-cum-Fee Collector has nothing to do with the accounts and he cannot be transferred from one Committee to another Committee. Therefore, the counsel contends that it was wrong on the part of the respondents to determine Makhu as parent Committee of Mrs.Jinder Kaur on the ground that on 31st March, 1982, she 5 Civil Writ Petition No. 8554 of 1987 was posted there. Counsel has again referred to Annexure P-3 and P-4 to state that Mrs.Jinder Kaur was appointed as a Typist on 27th November, 1972 at Jalalabad and she was promoted as Mandi Supervisor-cum-Fee Collector on 8th March, 1978. Counsel further refers to Annexure P-5 to state that the Board had granted approval for promotion of Mrs.Jinder Kaur at Jalalabad. The present writ petition was filed on 16th November, 1987 and while issuing notice of motion on November 18, 1987, the Bench had recorded that any promotion made shall be subject to the result of the writ petition. This Court had taken a view in Rana Sukh Raj’s case (supra) that Mandi Supervisor-cum-Fee Collector cannot be transferred from one Committee to another and the provisions of the Act are to be strictly followed. Therefore, I find merit in the contention of Mr.Kasturi Lal, counsel for the petitioner. Therefore, petitioner was to be promoted as Accountant because as per seniority list (Annexure P-2), he was senior most Mandi Supervisor-cum-Fee Collector available at Market Committee, Makhu. Since Mrs.Jinder Kaur was initially appointed and was also promoted at Jalalabad, she could only make her claim for promotion at Jalalabad and not at Makhu. Having held so, now the question arises as to what benefits can accrue to the petitioner. Since the petitioner had not discharged his duty on the post of Accountant, he could only be given notional promotion and a deemed date of promotion can be fixed. Therefore, he shall not be entitled to any financial benefits. Petitioner is due to retire in September, 2009. It is stated that Mrs.Jinder Kaur respondent No.5 has retired. Therefore, because of wrong interpretation, a benefit had accrued to her and she has worked on the post. Therefore, no recovery can be effected from her. Only notional promotion can be granted to the petitioner. Needless to say, if from the notional promotion, any retiral benefit has to accrue, the same shall be granted to the petitioner. 6 Civil Writ Petition No. 8554 of 1987 With these observations, present writ petition is disposed off. [KANWALJIT SINGH AHLUWALIA] JUDGE December 12, 2008 rps 7