R.S.A.No. 1753 of 1997 1 In the High Court of Punjab and Haryana at Chandigarh Date of decision: 23.12.2009 R.S.A.No. 1753 of 1997 Punjab Mandi Board and another ......Appellants Versus V.K.Gupta, and another .......Respondents R.S.A.No. 2791 of 1997 V.K.Gupta ......Appellant Versus Punjab Mandi Board and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.H.S.Bakshi, Advocate, for the appellants in RSA No.1753 of 1997 and for respondent Nos. 1 to 3 in RSA No.2791 of 1997 Mr.Girish Agnihotri, Sr. Advocate with Mr.Arvind Seth, Advocate for the appellant in RSA No.2791 of 1997 and for respondent No.1 in RSA No.1753 of 1997 Mr.R.K.S. Brar, Advocate, for respondent No.2 in RSA No.1753 of 1997 and for respondent No.4 in RSA No.2791 of 1997 **** R.S.A.No. 1753 of 1997 2 SABINA, J. Vide this judgment RSA Nos. 1753 and 2791 of 1997 will be disposed of as these have arisen out of same civil suit. Plaintiff V.K.Gupta filed a suit for declaration, which was decreed by the Sub Judge IInd Class, Jalandhar vide judgment and decree dated 8.2.1994. Aggrieved against the said judgment and decree, defendant No. 4 filed an appeal bearing No.23 of 1994, whereas, defendants No. 1 and 2 filed an appeal bearing No. 43 of 1994. Vide judgment and decree dated 14.1.1997 passed by the Additional District Judge, Jalandhar, appeal bearing No.23 of 1994 was accepted and the suit filed by plaintiff V.K.Gupta was dismissed, whereas, the appeal bearing No.43 of 1994 was dismissed. Hence, the present appeals by the plaintiff and defendant Nos. 1 and 2. Brief facts of the case, as noticed by the lower appellate Court in para Nos. 2 to 4 of its judgment, are as under:- “2. The facts are that plaintiff V.K.Gupta now respondent before me was appointed as weigh bridge Moharir on 2.12.1974 at Fazilka Market Committee. He was promoted in June 1975 as Auction Recorder and thereafter he was transferred to Jalandhar Cantt. on 14.1.1984. He was senior to defendant No.4 Sukhwinder Singh. The defendants are not promoting the plaintiff on the basis of circular issued on 27.3.1990 under which it was laid down that employees in regard to the promotion R.S.A.No. 1753 of 1997 3 etc. were to be governed by their parent committee. The plaintiff having its parent committee at Fazilka is not being considered for his promotion to the post of Mandi Supervisor on the ground that the plaintiff's appointing committee is at Fazilka and therefore he could not be promoted at Jalandhar Cantt. This is said to be wrong illegal and against the principles of natural justice on the ground that on 11.3.1987 Bhupinder Singh was promoted as Mandi Supervisor and the plaintiff was ignored due to the circular of 11.1.1982 and again now vacancy is falling and the plaintiff may be ignored for the post of Mandi Supervisor and that Sukhwinder Singh has been promoted. It is further alleged that once the plaintiff is transferred from one committee to another then the another committee becomes his parent committee, otherwise he shall never be promoted because his parent committee will be treated his original committee where he was appointed. This rule is said as bad and violates the rights of the plaintiff from being considered for promotion. On these grounds, it is alleged that the plaintiff had cause of action on 11.3.1987 and lateron on 27.3.1990 and the present suit was filed for seeking decree of declaration to the effect that he is entitled to be promoted and to be considered for promotion as Mandi Supervisor in the R.S.A.No. 1753 of 1997 4 Market Committee, Jalandhar Cantt. as Sukhwinder Singh defendant is junior to him. He has also prayed that promotion of the junior defendant No.4 is illegal ultravires and the plaintiff is entitled to be promoted in place of defendant No.4. He also seeks injunction restraining the defendants from giving approval to defendant No.4 for promotion. 3. Defendants contested the suit, denying the allegations made in the plaint and pleaded that it is barred because previously also similar suit was filed by the plaintiff and he has concealed this fact by not disclosing the same in the plaint. The plaintiff was in Fazilka committee which was his parent committee and therefore, according to the circular of 1982 and then later on of 1990, he was governed by his parent committee of Fazilka for promotion etc. He had sought mutual transfer at Market Committee, Jalandhar Cantt. in place of Balbir Singh Auction recorder on 14.1.1984. No notice has been served before filing this suit and the suit is also barred by limitation. Sukhwinder Singh was promoted on 1.10.1988 according to the rules. 4. Written statement of defendant No.4 has been filed separately pleading that the present suit was barred under Order 23 Rule 1 CPC in view of his earlier R.S.A.No. 1753 of 1997 5 suit filed by him on 31.1.1990 where stay was not granted to the plaintiff and that suit was withdrawn without permission to file fresh suit and Sukhwinder Singh has been rightly promoted. The case is bad for non-joinder and mis-joinder of parties. The other defence is the same as raised by defendants No.1 to 3.” On the pleadings of the parties, following issues were framed by the trial Court:- 1. Whether the plaintiff is entitled to be considered for promotion as Mandi Supervisor in preference to defendant No.4 and promotion of defendant No.4 is illegal and void and against the principles of natural justice on the grounds mentioned in the plaint? OPP 2. Whether the suit is bad for non- service of the notice under Section 31 of the Punjab Agricultural Market Produce Act, 1961 ? OPD 3. Whether the suit is bad for non-joinder of necessary parties? OPD 4. Relief. After hearing learned counsel for the parties, I am of the opinion that the present appeals deserve to be dismissed. The plaintiff was admittedly appointed as Weigh Bridger Moharar at Market Committee, Fazilka on 2.12.1974. He was R.S.A.No. 1753 of 1997 6 promoted as Auction Recorder on 10.6.1975 . Vide order dated 14.1.1984 Ex.P-4, the plaintiff was transferred on mutual basis to Market Committee, Jalandhar Cantt. The plaintiff had, thus, sought mutual transfer with Balbir Singh. Vide Ex.P-4, plaintiff was transferred to Market Committee, Jalandhar Cantt, whereas, Balbir Singh was transferred to Market Committee, Fazilka. The case of the plaintiff is that defendant No.4 Sukhwinder Singh was junior to him and hence, could not be promoted from the post of Auction Recorder to the post of Mandi Supervisor without consideration of the case of the plaintiff. A perusal of Ex.P-10, copy of service book of defendant No.4 Sukhwinder Singh, reveals that he was confirmed as Auction Recorder w.e.f 4.3.1983. Learned counsel for the plaintiff has failed to point out any rule as per which the seniority list of the members of all the Market Committees was common. Since the plaintiff had come to Market Committee, Jalandhar Cantt. by way of transfer on mutual basis in the year 1984, he cannot claim seniority over and above defendant No.4, who was promoted as Auction Recorder in the year 1983 in Market Committee, Jalandhar Cantt. It is not a case where the plaintiff had been transferred from one Committee to another on administrative grounds by the Mandi Board. Rather the plaintiff has been transferred from his parent committee to Market Committee, Jalandhar Cantt on mutual basis. In these circumstances, the R.S.A.No. 1753 of 1997 7 plaintiff was to be placed at the tail of the seniority list for the post of Auction Recorder in the Market Committee, Jalandhar Cantt. Earlier no service rules were prevalent in the Market Committees and consequently, circular Ex.P-5 was issued in the year 1982 and as per the said circular the seniority of the member, who had been transferred to another Committee was to be maintained by the parent Committee. The said circular was later withdrawn vide Ex.P-7 in the year 1990 on coming into force of the Punjab Market Committees Class III Service Rules, 1989 (for short ' the Rules'). As per Rule 10 of the Rules, the seniority inter se of the members of the service in each cadre of the service shall be determined committee wise by the length of continuous service on a post in that cadre of the service. In the present case, the plaintiff could not claim seniority over and above defendant No.4 as he had joined the Market Committee, Jalandhar Cantt. in the year 1984 when defendant No.4 had already been promoted as an Auction Recorder. Plaintiff was to rank junior to defendant No.4 as he had sought transfer to Market Committee, Jalandhar Cantt. on mutual basis. In these circumstances, the suit of the plaintiff was liable to be dismissed on merits. Hence, learned Additional District Judge had rightly dismissed the suit of the plaintiff though for different reasons. No substantial question of law arises in these regular second appeals. Accordingly, the appeal filed by the plaintiff is dismissed. R.S.A.No. 1753 of 1997 8 Any observations made by learned Additional District Judge qua the circulars issued by the Market Committee are irrelevant as the observations with regard to the circulars were not relevant for the decision of the case and consequently, the observations made by the learned Additional District Judge qua the circulars issued by the Market Committee from time to time will not be binding on the Market Committee. In these circumstances, the appeal filed by the Market Committee is rendered infructuous and is disposed of as such. (SABINA) JUDGE December 23, 2009 anita