Bhupinder Singh v. Harvinder Singh & Ors.

Mr. Chanchal K. Singla, Advocate, for the appellant. Mr. D. V. Sharma, Sr.Advocate with Ms. Shivani Sharma, Advocate, for respondent No.1. Mr. Deepak Bhardwaj, Advocate, for respondent No.2. **** RANJIT SINGH, J. The issue involved relates to the appointment of appellant for the post of Salesman of the respondent-society. Appellant had applied for this post alongwith two other candidates. The appointment of the appellant to the post was challenged by Harvinder Singh, respondent No.1, by filing a suit. As per the allegations, respondent No.1-plaintiff was shocked to see this appointment being REGULAR SECOND APPEAL NO.3273 OF 2009 (O&M) :{ 2 }: made after flouting all legal norms and rules. Jangir Singh, one of the members of the selection committee, had also challenged this appointment by filing a case before Addl.Registrar (General), Co- operative Societies, Punjab. Plaintiff claims himself to be rather suitable for this appointment because of his qualification and was statedly ignored due to malafides of Jaswinder Singh, President of the Society impleaded as defendant No.2 in the suit. The respondent-plaintiff would also point out that appellant was not eligible for appointment even after taking into account the age relaxation for backward classes as he was more than 39 years of age and had scored 38% marks in 10+2 examination. Other allegations are also made for making this appointment by flouting the rules inasmuch as sub committee was constituted consisting of President, Vice-President etc. to make recommendation for the appointment, but the record of the sub committee was also tampered to show that the meeting was held on 4.9.2004, whereas it was held on

14.9.2009. Instead of making recommendation, the sub committee directly appointed the appellant, thus, giving cause of action to the respondent-plaintiff for which he filed this suit. The defendants alongwith appellant appeared and contested the suit by filing separate written statements. Preliminary objection was raised about the jurisdiction of the civil court to entertain this suit. It was said that the suit was not maintainable in view of Section 70 of the Punjab Co-operative Societies Act. It is also pointed out that sub committee was formed which had recommended the name of appellant Bhupinder Singh and he was accordingly appointed, who had also joined on 18.2.2005 and was regularly REGULAR SECOND APPEAL NO.3273 OF 2009 (O&M) :{ 3 }: attending to the work of the society. The revision petition filed before the Registrar, Co-operative Societies to challenge the appointment was dismissed after giving detailed reasons. On the pleadings of the parties, the following issues were framed:- “1) Whether the selection of Defendant No.2 is illegal, null and void and is liable to be set aside? OPP. 2) Whether the plaintiff is entitled for a decree of permanent injunction as alleged? OPP 3) Whether the plaintiff is entitled for a decree of mandatory injunction as prayed for? OPP 4) Whether the Civil Court has got no jurisdiction to try and entertain the present suit? OPD 5) Whether the suit is bad for non service of legal notice under Section 79 of Punjab Co-operative Societies Act as alleged? OPD. 6) Whether the plaintiff has got no cause of action to file the present suit? OPD 7) Relief. On the basis of the evidence led by the respective parties, the Trial Court came to the conclusion that the appellant was not eligible as he was having marks less than 45% in 10+2 and his age was also more than 55 years as on 1.9.2004. The respondent- plaintiff was held eligible and qualified. It was also noticed that there was no resolution passed by the society for relaxing the age or the percentage of the marks required as minimum eligibility condition. The issue was accordingly decided in favour of the plaintiff. The issue concerning the jurisdiction was also decided against the REGULAR SECOND APPEAL NO.3273 OF 2009 (O&M) :{ 4 }: defendant-appellant as it was found that the matter of selection did not fall within the purview of Section 55 of the Punjab Co-operative Societies Act, 1961. Other issues were also decided against the appellant. He accordingly filed an appeal before the first Appellate Court, which was also dismissed. He has, thus, filed this Regular Second Appeal. Counsel for the appellant would highlight a minor typographical error in the judgment of the trial Court, where he was noted to be of 55 years of age, whereas the appellant was statedly 39 years old. Concededly, the eligibility of age as provided in the Rules is that the person should not be less than 18 years and not more than 35 years of age. It is conceded that the appellant was 39 years old when he was appointed. He was certainly not eligible for appointment in terms of Rule 5 of the Punjab State Cooperative Agricultural Service Society Rules, 1997 (for short “1997 Rules). As per the qualification prescribed, the candidate must have 45% marks in 10+2 examination, which the appellant was not having. As was urged on behalf of the appellant, it is again pleaded that he was eligible for appointment in view of age relaxation due to the circular issued by the Government, which will apply to societies as well. There would not much requirement to consider this aspect from the point of view of age relaxation as there was no mention made regarding age relaxation in the advertisement inviting applications for appointment. Thus, the age could not be relaxed in any of the categories for the purpose of this appointment. In this background, large number of persons, who otherwise could have applied for this post, stood deprived and discriminated in the matter REGULAR SECOND APPEAL NO.3273 OF 2009 (O&M) :{ 5 }: of appointment as they would not have applied on the ground of being over age since there was no mention made about the age relaxation in the advertisement. Thus, the appointment of the appellant as made would clearly show that he was not eligible for being appointed as per the requirement of age as well as the educational qualification. Rule 6 of the 1997 Rules clearly provides that atleast 45% marks in 10+2 examination was the need, which concededly the appellant did not have. The reference made by the counsel for the appellant to Rule 21 to say that Registrar was the final authority to relax any condition of any rules or the decision of the committee of the society can not help his cause as it is only an enabling provision and cannot be read to mean that any of the conditions in the Rules for appointment stood relaxed. The counsel could not point out to any communication or evidence on record to show that any of the condition was relaxed while appointing the appellant. The view taken by both the courts concurrently is justified in law and no substantial question of law arises for determination. The Regular Second Appeal is, therefore, dismissed. March 04, 2010 ramesh ( RANJIT SINGH ) JUDGE