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
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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 3etc. 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 4Market 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 5suit 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