JUDGMENT
T.H.B. Chalapathi, J.
1. In this writ petition the petitioner is challenging the order of his transfer from Market Committee, Khanuwan to Market Committee, Mehta on the ground of competency of the Secretary, Punjab State Agriculture Marketing Board, to effect the transfer.
2. The petitioner was originally appointed as Auction Recorder in the year 1973 and thereafter he was promoted as Mandi Supervisor-cum-Fee Collector in August, 1976. He was working at Gurdaspur Market Committee when a separate Committee was formed at Kahnuwan. On the formation of a new Market Committee, the services of the petitioner were allocated to the said committee at Kahnuwan in the year 1986 and the petitioner has been working at Kahnuwan since then. According to the petitioner, he has been transferred from Market Committee, Kahnuwan to Market Committee Mehta by the Secretary, Punjab Mandi Board. According to the petitioner, the Mandi Board or its Secretary had no jurisdiction to effect transfer under the provisions of Punjab Agricultural Produce Markets Act, 1961 and the rules framed thereunder. The petitioner also challenged the order of his transfer on the ground of mala fides on the part of the 3rd respondents, the District Mandi Officers, Gurdaspur.
3. A written statement was filed by the respondents 1 to 3. According to the respondents, the Chairman or the Secretary of the Board has got the power to transfer any employee from one Market Committee to another Marked Committee and therefore, the transfer of the petitioner from Kahnuwan Market Committee to Market Committee Mehta is legal and valid and does not suffer from any infirmity. It is also denied that the 3rd respondent has got biased and that the transfer was effected at the instance of the 3rd respondent.
4. At the outset it may be stated that the petitioner is not able to substantiate the mala fides on the part of 3rd respondent and therefore this ground fails.
5. The only point for consideration that arises in this writ petition is whether the Punjab State Agricultural Marketing Board has got the power to transfer one employee from one Market Committee to another Market Committee.
6. In order to appreciate the contentions of the learned counsel for the parties, it is useful to see the scheme of the Act and the provisions under the Act relating to the employees of various Market Committee and the power and control of the Board.
7. The Punjab State Agricultural Marketing Board has been constituted Under Section 3 of the Punjab Agricultural Produce Markets Act. Under Sub-section (9) of Section 3 the Board shall exercise superintendence and control over the Committees. Sub-section (11) of Section 3 reads as follows :-
“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.”
8. The Market Committee are constituted Under Section 13 of the Act. Section 20 of the Act deals with the appointment and salaries of officers and servants of the Market Committee. It reads as follows :-
“20. Appointment and salaries of officers and servants of Committees.
(1) Every committee shall have a person as its Secretary, appointed by the Board as its servant, and lent to the Committee subject to such terms and conditions and as the Board may prescribe.
(2) A Committee may, with the previous approval of the Secretary of the Board, employ such other officers and servants as may be necessary for the management of the market and may pay such officers and servants salaries as fixed by the Board for different cadres and shall have power to control and punish them;”
9. Under Clause (4) of Section 20, the service of the Secretary or any employee dealing with the accounts of a Committee shall be transferable within the same State. Thus, it is clear that the Secretary of the Market Committee has to be appointed by the Board while other employee of the Committee may be appointed by the Committee itself subject to the previous approval of the Secretary of the Board. It is also clear from a reading of Clause (4) of Section 20 that the Secretary or any employee dealing with the accounts of a Committee shall be transferable within the same State i.e. within the State of Punjab. Section 43 empowers the State Government to make rules. Clause (XXVIII) of Sub-section (2) of Section 43 provides for making service rules, recruitment rules, provident fund rules, pension rules and such other rules as may be required for the employment of the staff of the Board and Committees. In pursuance of the said powers the State Government framed rules known as the Punjab State Agricultural Marketing Board (Class III) Service Rules 1989.
10. There is no dispute that the Punjab State Agricultural Marketing Board (Class III) Service Rules, 1989 contain the service conditions of the employees of the Committees. Section 2(i) defines recruiting authority. According to the said rule recruiting authority means a recruiting authority of a Committee consisting of the Chairman of the Committee as its President, District Mandi Officer or his nominee not below the rank of an Assistant District Mandi Officer as expert representative and two other representatives, one each out of the Schedule Castes and Ex-Servicemen, to be nominated by the Committee from amongst its members. ‘Service’ means the Punjab Market Committee Class (III) Service. Admittedly, the petitioner falls within this category of service. Under Rule 3, the service of a Committee shall consist of separate cadres and each cadre shall comprise the posts Committee-wise as specified in Appendix ‘A’. Appendix A of the rules provides a post of Mandi Supervisor-cum-Fees Collector. The Petitioner is a Mandi Supervisor-cum-fees Collector. Under rule 6 all the appointments to the services shall be made by the Committee. Rule 8 provides the method of recruitment and qualifications. Under Sub-rule (2) no person shall be appointed to a post in the service, unless he possesses the qualifications and experience as specified against that post in Appendix ‘B’ and, under the proviso if no suitable candidate is available for appointment by promotion to a post in the Service, such post shall be filled in by direct appointment or by transfer. Under Rule 12, a member of the Service shall be liable to serve at any place within or out of the State of Punjab on being ordered to do so by the appointing authority. Under rule 11 the interse seniority of the members of the Service in each cadre shall be determined by the length of continuous service on a post in that cadre of the service.
11. Thus on a perusal of the provisions of the Act as well as the rules framed thereunder it is clear that service of the Committee other than the Secretary shall comprise the employees of the Committee alone and the appointment to the said Service shall be made by the Committee alone. It is only in the case of Secretary the Board can appoint the Secretary to a Committee from amongst the employees of the Board. A reading of the provisions of the Act as well as the rules framed there under clearly indicate that the Committee is constituted as a separate and distinct unit for the purpose of employment of its servants. It is no doubt true that the overall control of the Committee vests in the Board Under Sub-section (9) of Section 3.
12. The learned counsel for the respondents contended that the Board in its overall control and superintendence over the Committee can transfer an employee of one committee to another committee. He also contended that by virtue 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. Thus the contention of the learned counsel for the respondents is two-fold. One is that the Board has got the power to transfer the employee of the Committee from one Committee to another Committee in exercise of its superintendence and control over the committees. The other ground is that the petitioner is an employee of the Committee dealing with the accounts of the Committee and therefore, is liable to be transferred from one Committee to another Committee Under Sub-section (11)of Section 3 of the Act, and therefore, the provisions of the Act will prevail over the rules and that the transfer of the petitioners who is dealing with the accounts of the Committee as a Mandi Supervisor-cum-fee Collector is therefore, valid and does not require any interference by this Court.
13. The first contention of the learned counsel for the respondents that the Board in its superintendence and control can transfer an employee of the Committee from one committee to another committee, cannot be accepted. No doubt the Board has general superintendence and control over the Committees but the said control does not mean interference with the day-to-day functioning of the Committee or transferring one employee of the Committee to another Committee. It only gives powers to the Board to give such instructions to the Committee as may be necessary in the general administration of the Committee. The Committee is bound to follow the instructions issued by the Board. Further, a close reading of Section 20 which deals with the appointment and salaries of officers and servants of the Committees clearly indicate that the Committee has got control over its employees and the Board is given the power to give such instructions in regard to taking action against the employees of the Committee. Under Sub-section (2) of Section 20 as already seen the Committee can employ such other officers and servants as may be necessary for the management of the market with the previous approval of the Secretary of the Board. The second proviso to Sub-section (2) says that the Board can direct the Committee to dismiss or terminate the services of an employee if the Board is satisfied that such employee is negligent in discharge of his duties and unfit for employment, he shall be dismissed. Similarly, the Board can direct the Committee to suspend or terminate an employee of the Committee. Sub-rule (3) of Rule 20 makes it clear that there are three categories of employees working in the Committees. One category is of officers and servants of the Committee and the third category is of the officers/officials of the Government working with the Committee on being employed by the Committee on deputation. Thus it is clear that the Committee has got its own employees under its control. Directions can be given by the Board in regard to suspension, dismissal or termination of an employee of the Committee. There is no provision except Section (11) of Section 3 and Section (4) of Section 20 in regard to the transfer of an employee from one committee to another committee. It is no doubt true that the Under Rule 11 a member of the Service shall be liable to be transferred to any other place within or out of the State of Punjab as ordered by the appointing authority. Therefore, it is the appointing authority which can ask the employee to serve at any place of the State. Admittedly, the Board is not the appointing authority of the petitioner. Therefore, it is the Committee who is the appointing authority in the case of the petitioner who alone can ask its employee to serve any other Committee, it may be on the basis of deputation only. Therefore, I am of the view that the Board cannot under the exercise of its general superintendence control of the committee, transfer an employee from one Committee to another Committee. Such a power does not exist in the Act or the rules framed thereunder nor can, it be inferred from the provisions of the Act and the rules made thereunder.
14. The other contention raised by, the learned counsel for the respondents is that under Sub-section (11) of Section 3 of the Act, the Chairman of the Board 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. Under Sub-section (4) of Section 20 the service of an employee dealing with accounts of a Committee shall be transferable within the same State. Relying on these provisions, the learned counsel for the respondents contended that the petitioner being a Mandi Supervisor-cum-fee Collector, is a person dealing with; the accounts of the Committee and therefore, the Board has got the power to transfer him from one Committee to another Committee. Therefore, the question is whether the petitioner is an employee dealing with the accounts of the Committee. The learned counsel for the respondent argued that the power given to the Chairman of the Board to transfer an employee, dealing with the accounts, of one committee to another is valid and within the legislative competency of the State Legislature. He relied upon the decision of this Court in Ram Parkash v. The State of Punjab and Ors., I.L.R. (1971) Pb and Haryana 757, wherein it is observed as follows :-
“There seems to be nothing wrong in the Legislature giving power to the Chairman of a high-powered Board, constituted for exercising supervision and control over the working of Market Committees, to transfer an employee dealing with the accounts from one Committee to another. The policy behind this power is that accounts is a very important subject and it has to be seen that the accounts are kept regularly and honestly. Too long a stay of one Accountant in one Committee may lead to some mal-practices and it may become desirable to make transfers of the employees dealing with accounts in the interest of the Committees, In the case of Market Committee this power of transfer cannot be taken exception to because of the provisions contained in Section 20(2) of the Act, which provides that a Committee may employ such officers and servants, other than the Secretary, as may be necessary for the management of the Market, only with the previous approval of the Chairman of the Marketing Board. In order to provide uniformity of conditions of service to the employees of the Market Committee, the Marketing Board has fixed their cadres, grades and model conditions of the service which apply to every Market Committee. I am, therefore, unable to hold that the power of transfer of an employee dealing with accounts of one Market Committee to another given to the Chairman of the Marketing Board is ultra vires of the Act or the Constitution and cannot be struck down. The abuse of power, however, can be struck down if the abuse is proved to the satisfaction of the Court.”
15. There is no dispute of the proposition that the Act empowers the Chairman of the Board to transfer an employee dealing with accounts of one Market Committee to another. The question in this case is whether the petitioner, who is working as Mandi Supervisor-cum-fee Collector can be said to be a person dealing with the accounts of the committee. The learned counsel for the petitioner relied upon a decision of this Court in Roshan Lal v. Punjab State Marketing Board, 1992(5) S.L.R. 746, wherein Justice H.S. Bedi observed as follows :-
“x x x x x x x It is the admitted case of the parties that a mandi Supervisor-cum-Fee Collector is a person dealing with the accounts and as such no fault can be found with the transfer from Dhuri to Sherpur.”
16. But the decision of justice H.S. Bedi is based on an admission of the counsel that the Mandi Supervisor-cum-fee Collector is a person dealing with the accounts of the Committee. It cannot therefore be said that the said decision is binding as it is based on concession. It is, therefore, necessary to be seen that whether the petitioner who is working as a Mandi Supervisor-cum-fee Collector is a person dealing with accounts. The ordinary dictionary meaning of word ‘dealing with’ is to act in regard to, handle, dispose of, to handle effectively, to grapple with. Therefore, an employee in order to come within the description of ‘dealing with’ must be a person who is actually dealing or handling with the accounts of the Committee. Every person who is an employee in the Market Committee is not a person dealing with accounts. He may have to assist or to do something in the process of maintaining the accounts of the Market Committee. A look at the rules framed clearly show that a Mandi Supervisor-cum-fee Collector cannot be said to be a person who is dealing with the accounts of the Market Committee. Under Section 8, all appointments shall be made to the service in the manner as prescribed in Appendix ‘B’ Appendix ‘B show that there are six categories of employees attached to the Market Committee such as Head Clerk-cum-Accountant, Mandi Supervisor-cum-Fee Collector, Auction Recorder, Clerk, Kanda Moharar and Care Taker. The duties and functions of these employees have also been provided in the bye-laws of the Punjab Market Committee, By-law 24(1) reads’ as follows :-
“Head Clerk-cum-Accountant
1. In-charge of office of Market Committee in absence of Secretary or Assistant Secretary.
2. Personal files and service books of the employees ;
3. Maintenance of accounts including Cash Books, P.F. Ledger, Budget Ledger, Establishment Check Register and Bills etc.
4. Preparation of Bills ;
5. Preparation of Cheques ;
6. Preparation of Budgets of Market Committee ;
7. General correspondence ;
8. If any other employee viz. clerk or Mandi Supervisor or Auction Recorder is posted to assist Head Clerk-cum-Accountant, the work shall route through Head Clerk-cum-Accountant. Where there are more than one posts of Head Clerk-cum-Accountant the work shall be divided among them by the Secretary, Market Committee according to the local needs and circumstances.
(2) Mandi Supervisors-cum-Fee Collector
1. Collection of fees ;
2. Accounts checking of dealers when authorised by Secretary ;
3. Mandi Inspecting ;
4. Enforcement of the Act, Rules and Bye-laws ;
5. To supervise auction, weighment and Market transactions ;
6. Incharge of the work in the market area ;
7. Seasonal arrangement.”
17. While duty of the Head Clerk-cum-Accountant is to maintain account including cash Book, P.F. Ledger, Budget Ledger, Establishment Check Register and Bills etc. of the Committee the Mandi Supervisor-cum-fee Collector is to at tend the accounts checking of dealers when authorised by Secretary. Thus the duties of Mandi Supervisor-cum-fee Collector do not include dealing with accounts; of the Committee as such. The learned counsel for the respondent relied on bye-law 24(2) wherein it is provided that one of the duties; of the Mandi Supervisor is to attend to accounts checking of dealers when authorised by the Secretary. I am of the opinion that this duty does not amount to the duty of dealing with he accounts of the Committee. Checking of the accounts of the dealers is different from dealing with the accounts of the Committee. Therefore, it is only Head Clerk-cum-Accountant who deals with the accounts of the Committee. The Mandi Supervisor-cum-Fee Collector has nothing to do with the accounts of the committee as such. Therefore, I am of the considered view that the Mandi Supervisor-cum-Fee Collector cannot be described as an employee dealing with the accounts of the Committee. Therefore, in my view, Section 3(11) and Section 20(4) do not apply and therefore, the Board has no power to transfer the petitioner from one Committee to another Committee.
18. There cannot be any dispute that every market committee is an independent body though all the market committees are under the supervision and control of the Board. But that does not make the employees of the Market Committee as the employees of the Board. They are the employees of the district independent committees. Therefore, an employee of a Committee cannot be transferred from one Committee to another Committee unless he comes within the category of employees dealing with the accounts of the Committee. As discussed above, I am of the opinion that the petitioner is not an employee dealing with the accounts of the Committee and therefore, is not liable to be transferred from one committee to another committee.
19. The writ petition is allowed and the transfer order (Ann. P.3) is quashed and set aside. There will be no order as to costs.