Baj Singh v. Punjab Mandi Board & Ors.

Baj Singh-plaintiff has approached this Court by way of instant second appeal, having remained unsuccessful in both the Courts below. Pursuant to advertisement dated 07.03.1983, defendant No.4 was selected as Auction Recorder in Market Committee, Makhu-defendant No.3 and was appointed as such vide resolution dated 19.03.1983 and he joined as such on 22.03.1983. Plaintiff's case is that he was also selected as Auction Recorder pursuant to aforesaid advertisement and he joined as Auction Recorder on 22.04.1983. Plaintiff also alleged that as per the advertisement, persons aged 18 to 30 years were eligible for the RSA No.3007 of 2010 (O & M) -2- post, but defendant No.4 was admittedly aged less than 18 years and, therefore, he was not eligible for the post. Defendant No.3 vide subsequent resolution dated 02.05.1983 relaxed the condition of age making it to be between 17 to 30 years and, therefore, selection of defendant No.4 could at best be presumed to be with effect from

02.05.1983 and, therefore, defendant No.4 was junior to the plaintiff who had joined on 22.04.1983. However, in seniority list, the defendant No.4 was depicted to be senior to the plaintiff. Accordingly, the plaintiff sought declaration that he is senior to defendant No.4 in the seniority list of Auction Recorders. The plaintiff sought necessary correction in the seniority list. Defendant Nos.1 to 3 pleaded that the suit is barred by limitation as the impugned seniority list was issued in June, 1998 and the plaintiff noted the same on 02.07.1998 whereas limitation for filing the suit was six months as per Section 31(2) of the Punjab Agricultural Produce Markets Act,1961 (in short, the Act). It was also pleaded that the plaintiff did not challenge the seniority list before the defendants by filing objections or representation. The plaintiff has also not challenged the resolution whereby defendant No.4 was appointed as Auction Recorder and was given other benefits from time to time. Various other objections were also raised. On merits, it was pleaded that defendant No.4 joined as regular Auction Recorder on 22.03.1983 pursuant to his appointment vide resolution dated 19.03.1983. On the other hand, the plaintiff was not appointed as Auction Recorder vide resolution dated

19.03.1983. On the contrary, vide said resolution, plaintiff was appointed as Seasonal Auction Recorder and was allowed to join RSA No.3007 of 2010 (O & M) -3- duty at the start of Rabi season 1983 and his appointment was for a period of 89 days or till the completion of said Rabi season 1983. Accordingly, appointment letter of the plaintiff was issued on

20.04.1983 mentioning that he was appointed as Auction Recorder for 89 days on temporary basis or till the period the Purchase Centre was operational. The Purchase Centre where the plaintiff was appointed was seasonal. However, during the said season, one regular Auction Recorder was terminated and accordingly vide resolution dated 24.05.1983, the plaintiff was given appointment as temporary Auction Recorder (instead of Seasonal Auction Recorder) and fresh appointment order dated 25.05.1983 of the plaintiff was issued and thereupon the plaintiff joined as such on 25.05.1983 and has, therefore, been rightly placed as junior to the plaintiff in the seniority list. As regards age of eligibility for the post, it was pleaded that as per service conditions applicable at that time, eligibility age was 17 to 30 years, but inadvertently it was mentioned to be 18 to 30 years in the advertisement and the same was corrected by the Market Committee vide resolution dated 02.05.1983 and, therefore, appointment of defendant No.4 is not vitiated. It was also pleaded that appointment of defendant No.4 made in March 1983, could not be challenged in the instant suit instituted in September 2001. Various other pleas were also raised. Defendant No.4 also took the same stand as that of the other defendants. Learned Additional Civil Judge (Senior Division), Ferozepur vide judgment and decree dated 26.02.2009 dismissed the plaintiff's suit. First appeal preferred by the plaintiff has been RSA No.3007 of 2010 (O & M) -4- dismissed by learned Additional District Judge, Ferozepur vide judgment and decree dated 18.12.2009. Feeling aggrieved, the plaintiff has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Learned counsel for the appellant contended that in the advertisement, eligibility age was mentioned to be 18 to 30 years and the said condition could not be changed after process of selection had started and consequently, appointment of defendant No.4 as Auction Recorder was vitiated as he was below 18 years at the relevant time. Reliance in support of this contention has been placed on a Division Bench Judgment of this Court in the case of Roop Kumar Versus State of Punjab, 1997(1) RSJ 512. I have carefully considered the aforesaid contention, but find no force therein. Firstly it is not a case of change in the eligibility condition. On the other hand, it is a case of correction of an error that had crept in the advertisement. Learned counsel for the appellant contended that according to Rule 5 of the Punjab Market Committee (Class III) Service Rules 1989 (in short, the Rules), eligibility age is 18 to 30 years. The contention should not have even been raised by the counsel because these Rules were not even in existence when the selection to the post of Auction Recorder, which is in question in this litigation, was made. Consequently, these Rules which were not in existence cannot be made applicable to the said selection. Secondly, the plaintiff himself having competed for the post being eligible as per advertisement, can't plead that the persons, who were between 17 - 18 years of age at the relevant time, RSA No.3007 of 2010 (O & M) -5- could not apply for the post. The plaintiff does not fall in that category and, therefore, the plaintiff has no locus standi to raise this contention. Thirdly, selection and appointment of defendant No.4 made in March, 1983 could not be challenged by the plaintiff by filing suit in September, 2001 i.e after 18 ½ years. Learned counsel for the appellant also contended that the plaintiff joined on 22.04.1983 whereas appointment of defendant No.4 was regularized on 02.05.1983 by making correction in the eligibility age and, therefore, the plaintiff is senior to defendant No.4. The contention cannot be accepted. Defendant No.4 had joined on

22.03.1983 whereas the plaintiff joined on 25.05.1983 and, therefore, the plaintiff is junior to defendant No.4 and has been rightly depicted to be so in the seniority list. Even if appointment of defendant No.4 is deemed to be with effect from 02.05.1983, he would rank senior to the plaintiff, who was appointed as Auction Recorder on 25.05.1983. Earlier appointment of the plaintiff was as Seasonal Auction Recorder for 89 days for the particular season and his appointment was not as Auction Recorder. The plaintiff joined on 22.04.1983 as Seasonal Auction Recorder whereas the plaintiff joined as Auction Recorder pursuant to appointment order dated 25.05.1983. In this view of the matter also, plaintiff is junior to defendant No.4. However, I may not be misunderstood to mean that appointment of defendant No.4 is with effect from 02.05.1983. His appointment is with effect from 22.03.1983 when he joined as Auction Recorder and has been working as such without any challenge at the hands of anybody much less at the hands of the plaintiff. Suit filed by the plaintiff is also hopelessly barred by RSA No.3007 of 2010 (O & M) -6- limitation. Appointment of defendant No.4 could not be challenged after 18 ½ years. Even challenge to seniority list is not within limitation. The seniority list was issued in June 1998 and the plaintiff noted the same on 02.07.1998. The instant suit was filed on

17.09.2001. As per Section 31(2) of the Act, limitation period for filing suit is six months from the date of accrual of cause of action. In the instant case, however, plaintiff filed the suit after expiry of more than 3 years and 2 months after the cause of action accrued to him. Consequently, the suit is barred by limitation. Even if limitation period for filing the suit is taken to be three years, even then the suit is barred by limitation even after excluding the notice period of two months required under Section 31(1) of the Act because the suit was filed after expiry of more than 3 years and 2 months from the date of accrual of cause of action. The appellant has also moved CM No.8937-C of 2010 for additional evidence to place on record copy of the advertisement to depict that according to advertisement, age of eligibility was between 18 to 30 years. However, in view of discussion aforesaid, proposed additional evidence is not required for deciding the instant second appeal. Even assuming the aforesaid plea of the plaintiff-appellant to be correct, no relief can be granted to the appellant in the instant second appeal for the reasons recorded hereinabove. Accordingly CM No.8937-C of 2010 for additional evidence is dismissed. For the reasons aforesaid, I find no merit in the instant second appeal. There is concurrent finding by both the Courts below based on proper appreciation of evidence. The said finding cannot be said to be perverse or illegal so as to warrant interference in RSA No.3007 of 2010 (O & M) -7- second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. Accordingly the appeal is dismissed in limine.

09.08.2010. A. Kaundal ( L. N. MITTAL ) JUDGE