Karamjeet Singh vs State of Punjab and Others

Rajesh Bindal, J.—The petitioner, who is working as Auction Recorder, has approached this court challenging the order dated 1.4.2010, whereby the order dated 12.1.2008 passed by Chairman, Punjab Mandi Board (for short, ''the Board'') transferring the petitioner from Market Committee, Noormehal to Market Committee, Bhagta Bhaika, was set aside. Learned counsel for the petitioner submitted that the petitioner in the present case was working as Auction Recorder in Market Committee, Noormehal. He made a request for his transfer to Market Committee, Bhagta Bhaika. His request was considered. Resolution was passed by both the Market Committees and in terms thereof, the order was passed by the Chairman of the Board transferring the petitioner from Noormehal to Bhagta Bhaika. It was specifically mentioned in the order of transfer that the petitioner will loose his seniority. His seniority shall be considered in the transferee Market Committee from the date of his joining and he will not be transferred back again. In terms of the aforesaid order of transfer, the petitioner joined service at the new place. Some of the employees of Market Committee, Bhagta Bhaika challenged the order of transfer of the petitioner by filing CWP No. 19529 of 2008, The same was disposed of as the petitioners therein had effective alternative remedy of revision before the State Government u/s 42 of the Punjab Agricultural Produce Markets Act, 1961 (for short, ''the Act''). Thereafter, a revision was filed in which the order of the petitioner from Noormehal to Bhagta Bhaika was quashed by the State Government.

Learned counsel further submitted that at the time of transfer and absorption of the petitioner in Market Committee, Bhagta Bhaika, in the resolution passed by it, it was specifically mentioned that one post meant for direct recruitment was lying vacant. The petitioner was adjusted against that post. The private respondents could not be aggrieved of against that as the same was not affecting their rights. Still in the impugned order, the Secretary, Government of Punjab, Department of Agriculture (Mandi Branch) had noticed that both the posts meant for direct recruitment were already filled up in Market Committee, Bhagta Bhaika, hence, the petitioner could not be adjusted. Further, it was submitted that even if the facts, as are noticed by the Secretary in the impugned order, are true, in view of the developments which have taken place during the pendency of the present petition, still the petitioner can be adjusted in Market Committee, Bhagta Bhaika as one of the incumbent, who was appointed against the post meant for direct recruitment, has been promoted as Mandi Supervisor in the year 2010. The petitioner can now be adjusted from the date the post fell vacant. He is even ready to forego his seniority upto that period.

On the other hand, learned counsels for the Board as well as Market Committee, Bhagta Bhaika submitted that at the time of passing of resolution, initially wrong facts were projected regarding the vacancy position, however, considering the fact that one post in direct recruitment quota has become available with the promotion of Jagroop Singh as Mandi Supervisor, the case of the petitioner can be re-considered. Referring to Section 3(9) of the Act, it was submitted that power of superintendence and control of the Committees lies with the Board. He further referred to Section 20(2) of the Act, which provides that a Committee may, with the prior approval of the Board, employ such persons and servants which may be necessary for the management of the market.

On the other hand, learned counsel for respondent No. 3 submitted that as per Punjab Market Committee (Class-III) Service Rules, 1989 (for short, ''the Rules''), the cadre of Auction Recorders is committee wise. The posts are not transferable in-terse between different Committees. This is not one of the modes for appointment against the quota meant for direct recruitment. Respondent No. 3 was eligible to be promoted for the post of Auction Recorder in 1990, however, his case was not considered and the petitioner was brought in against a vacancy meant allegedly for direct recruitment, as a result of which he ranked senior to respondent No. 3, who was promoted on 24.4.2012. The post should have been filled in as per the procedure prescribed in the Rules by issuing advertisement. There was no ban on recruitments. In case the employees were to be brought in from other Market Committees, even the employees working in the same Committee could also be considered. He further submitted that in terms of Section 3(11) of the Act, the power lies with the Board to transfer any employee dealing in the accounts. Auction Recorder does not fall in that category. There being no enabling provision in the Act or the Rules, the transfer is bad. In support of his submissions, he placed reliance upon a judgment of this court in Rana Sukh Raj Vs. The Punjab State, Agriculture Marketing Board and Others,

In response to the submissions made by learned counsel for respondent No. 3, learned counsel for the petitioner submitted that if respondent No. 3 is raising a dispute regarding seniority, he having been promoted on 24.4.2012 to the post of Auction Recorder, the petitioner is even ready to forego his seniority from the date when the post in direct recruitment quota fell vacant in Market Committee, Bhagta Bhaika. The petitioner can be placed below respondent No. 3 in the seniority list. He further submitted that the petitioner is retiring on 31.12.2014.

Heard learned counsel for the parties and perused the paper book.

It is not in dispute that on the request made by the petitioner, resolutions were passed by the transferor and transferee Market Committees for transfer of the petitioner from Noormehal to Bhagta Bhaika as Auction Recorder against a post meant for direct recruitment. The order was passed on 14.1.2008 by the Chairman of the Board. In terms thereof, the petitioner had even joined on 24.1,2008 and is working till date. He is to retire in December, 2014. The order passed by the Board was set aside by the government in a revision filed by private respondents finding that while passing the resolution, Market Committee, Bhagta Bhaika had noticed wrong facts regarding availability of a vacancy in direct recruitment quota, whereas it was not available. However, the fact remains that subsequent thereto the vacancy has become available in direct recruitment quota in the year 2010 when Jagroop Singh, Auction Recorder, working in Market Committee, Bhagta Bhaika was promoted as Mandi Supervisor.

Considering the fact that the petitioner is working as Auction Recorder in Market Committee, Bhagta Bhaika for the last more than four years and is going to retire in December, 2014; he has further undertaken that least any right of respondent No. 3 is affected regarding seniority, he may be placed below him in the seniority list and further the counsel representing the Board and the Market Committee concerned has offered to consider the matter afresh and pass order in the changed circumstances, in my opinion, the present petition can be disposed of at this stage by directing the official respondents to pass a fresh order in the changed circumstances as per the stand taken by the petitioner before this court. However, respondent No. 3 may also be heard as he is projecting his interest adverse to the petitioner. Ordered accordingly. Till such time fresh order is passed the order passed by the Secretary, Government of Punjab, Department of Agriculture (Mandi Branch) be kept in abeyance. The petition stands disposed of in the above terms.