Gurdip Singh, Clerk vs Secretary, State Agricultural Marketing Board, Union Territory, Chandigarh and Another

R.L. Anand, J.—Shri Gurdip Singh son of Shri Alma Singh has filed the present writ Petilion against the Secretary, State Agricultural Marketing Board, Union Territory, Chandigarh and the Secretary, Market Committee, Chandigarh under Articles 226/227 of the Constitution of India praying that the order Annexure P.7 be quashed.

The case set up by the petitioner is that he was recruited as Class-IV employee by respondent No.2 i.e. Market Committee, Chandigarh which passed resolution No.4 dated 18th September, 1996 vide which he was ordered to be promoted to the post of Clerk. This resolution was subject to the further approval as required u/s 22(2) of the Punjab Agricultural Produce Markets Act, 1961 (hereinafter referred to as ''the Act''). On the basis of said resolution the prmotion orders were issued and the petitioner started the duties of Clerk. He was placed under probation for one year and is performing his duties successfully. There is no complaint against him- The period of probation had already been completed on 18th September, 1997. So much so, the Market Committee had sent a letter to respondent No.l to give approval to the resolution dated 18th September, 1996 vide which the petitioner was promoted as Clerk from Peon. Reminder had also been sent. But the approval was not accorded. As a result the petitioner filed civil writ petition before the High Court bearing No. 11620 of 1998 which was disposed of by giving directions to the respondents to give approval to the resolution but in spite of that no approval has been given. On the contrary, the order Annexure P.7 has been passed vide which the approval to the earlier resolution has been rejected. According to the petitioner, the order Annexure P.7.is bad as no formal approval was required as he was a promotee and hence, the present writ pelition.

Notice of the writ petition was given to the respondents who filed the reply and denied the allegations. The stand of the respondents is that the petitioner was recruited as Class-IV employee. He was promoted to the post of Clerk on the basis of resolution dated 18th September, 1996 which was subject to the approval of the Board u/s 20(2) of the Act. There were only two posts of Clerks. As per the order dated 16th October, 1998, the resolution dated 18th September, 1996 was suspended under the Provisions of Section 33(i) of the said Act as the same was contrary to the provisions of the Act, rules and bye-laws. The petitioner was not found eligible to be promoted to the post of Clerk since he had no qualified the type test in English with the speed of 30 words per minute. Moreover, 10% promotion quota had not been observed and a penal of three persons had not been considered. With this defence the respondents prayed for the dismissal of the writ petition.

I have heard the learned counsel for the parties and with their assistance have gone through the record of the case.

There is no dispute on facts that the petitioner was posted as Class-lV and was promoted as Clerk on the basis of the resolution of the Board Annexure P.8 according to which the promotion of the petitioner was conditional. The contents of said resolution runs as follows:-

"Unanimously resolved that Gurdip Singh son of Shri Atma Singh is promoted as Clerk. And he will have to pass type test English in speed of 30 W.P.M. Only after that he will be granted annual increment and he will remain on probation for a period of one year. This promotion will be subject to approval of Board u/s 20(2) of the Act as required. His case may be sent to Board."

The letter Annexure P. 1 also specifies that the promotion of the petitioner is subject to the approval of the Board as required u/s 20(2) of the Act. He will remain on probation for one year and he will have to pass the type test in English at a speed of 30 W.P.M. within one year. But the approval was not granted, as a result the petitioner filed a civil writ petition which was disposed of exparte with the following order:-

"There is no need at all to issue notice in this case. It is well made out from the records of the case that vide order dated 18th September, 1996 (Annexure P.1) the petitioner was promoted as Clerk in the pay scale of Rs.950-1800 with initial start of Rs. 1000/- with immediate effect. The record further reveals that some unnecessary correspondence with regard to approval is going on. We direct the respondents to deal with the issue of approval of promotion of petitioner as expeditiously as possible and preferably within two months from the date a copy of this order is received by them without going into unnecessary correspondence. Disposed of accordingly.

Sd/- V.K. Bali, Judge

28.7.1998

Sd/- B. Rai, Judge"

Thus the reading of Annexure P.6 would again show that there was no automatic direction to the respondents to give approval to the promotion of the petitioner. The direction was to deal the issue of approval. The matter was considered and ultimately the resolution dated 18th September, 1996 was suspended unde Section 33(4)(i) of the Act as the same was illegal and contrary to the provisions of the Act, rules and bye laws. It was taken note of that a panel of three persons was not considered when the recommendations were made; 10% promotion quota was also not observed and that the eligible candidate has not qualified the type test in English with the speed of 30 W.P.M.

Faced with this difficulty the learned counsel for the petitioner submitted that the petitioner was never asked to clear the type test. Secondly, no formal approval was required as the petitioner was not the first appointee into service. It was a case of promotion. The submissions of the learned counsel for the petitioner could not be accepted. It is categorically mentioned in the order that the petitioner did not pass the type test as required under the conditions of promotion.

Section 20(2) of the Act lays down that a Committee 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 carders and shall have power to control and punish them, provided that where the basic pay of an employee is less than (five hundered rupees) the previous approval of the Secretary of the Board for the appointment will not be necessary, the reading of this sub-section would show that at every step the action of the Board is subject to the approval of the Secretary irrespective of the fact that it is a case of promotion. The object of the Act is not to give unfettered power to the Board. It is subject to scrutiny by the Secretary. Section 33(4) gives powers to the Secretary to annul any proceedings of a committee or sub-committee or joint committee or ad hoc committee which he considers not to be in conformity with law or rules or bye-laws. He has even been authorised to suspend the resolution when he considers that any action or procedure is wrong.

In order to fill up the posts of clerk 10% posts are to be given by way of promotion and the qualification is from amongst Class-lV employees working in the Committee who have an experence of working as such for a minimum period of five years and who are matriculates cf the Education Board and pass typewriting in Punjabi language at the speed of thirty words per minute. The reading of the above would again show that seniority is not the criteria. The recommendatory authority was supposed to consider the name of the Class-IV employee who could be promoted to the post of Clerk. Annexure P.8 would show that only the name of the petitioner was considered. In this view of the matter, it was justified on the part of the Secretary not to give approval to the resolution dated 18th October, 1998 (Annexure P.7), Resultantly, the said order is upheld.

As the resolution Annexure P.8 was not approved by the Secretary, therefore, this writ is totalU devoid of any merit and is hereby dismissed with no order as to costs.

Sd/-Jasbir Singh, J.