Orissa High Court
Abhimanyu Samal And Another vs Chairman, Bargarh Regulated Market ... on 1 September, 2014
Author: Biswanath Rath
Bench: Biswanath Rath
ORISSA HIGH COURT, CUTTACK.
O.J.C. No. 1593 of 1994
An application under Articles 226 and 227 of the Constitution of India.
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Abhimanyu Samal and another ... Petitioners
Versus
Chairman, Bargarh Regulated Market
Committee-cum-Sub-Collector,
Bargarh and others ... Opposite Parties
For Petitioners : M/s J.K. Rath, R.N. Mishra
and S.K. Das.
For Opp. Parties : None
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PRESENT :
THE HONOURABLE MR. JUSTICE BISWANATH RATH
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Date of hearing : 18.08.2014 Date of Judgment : 01.09.2014
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Biswanath Rath, J.By filing this writ petition, the petitioners have challenged the order of promotion of the opposite party nos.3 to 5 from the post of Market Guard to the post of Market Sarkar and in the writ petition, the petitioners have sought for issuing direction to the opposite party nos.1, 2 and 6 for considering the case of the petitioners for promotion to the post of Market Sarkar and to promote the petitioners to such posts with effect from the date of their juniors are promoted. Besides, claiming consequential benefits, the petitioners in the writ petition also claimed 2 for restoration of their seniority over the opposite party nos.3 to 5 by making necessary correction in the document vide Annexure-3.
2. The case of the petitioners in the writ petition is that the petitioner no.1 was appointed as Market Guard by the Regulated Market Committee, Bargarh vide memo no.435 dated 23.03.1978 and the petitioner no.1 joined the said post on 29.03.1978. Similarly, the petitioner no.2 was appointed as Market Guard by the same Regulated Market Committee vide memo no.225 dated 23.05.1977 which post he joined on 26.05.1977. So far as the opposite party nos.3 to 5 the private parties are concerned. The further case of the petitioners is that the opposite party no.3 joined as Market Guard on 12.09.1977, opposite party no.4 joined as Market Guard on 31.03.1978 and the opposite party no.5 joined the said post on 01.05.1982. Based on this averment, learned counsel for the petitioners also submitted that the petitioner no.2 is senior to opposite party nos.3, 4 and 5, taking into account their joining in the post of Market Guard whereas opposite party no.1 is senior to only opposite party nos.4 and 5.
3. To establish the above submission, the petitioners have filed the gradation of the Yardmen previously known as Market Guard vide Annexure-3 to the writ petition. The said document at Sl.No.6 find name of the petitioner no.2 at Sl.No.8, the name of the petitioner no.1, whereas the name of the opposite party nos.3, 4 and 5 finds at Serial Nos.7, 9 and 18, respectively.
4. It is further contended by learned counsel for the petitioners that while the matter stood as above, the opposite party 3 nos.1 and 2 recommended for promotion of opposite party nos.3 to 5 in the post of Market Sarkar. The petitioners claimed that both of them are seniors to the opposite party nos.4 and 5. So far as the petitioner 2 is concerned, he is even senior to opposite party no.3. They being senior to the opposite parties in the above manner alleged that promotion of opposite party nos.3 to 5 to the post of Market Sarkar has been made ignoring the claim of the petitioners.
The petitioners have challenged the promotion of the opposite party nos.3 to 5 to the post of Market Sarkar mainly on two grounds. The ground no.1 is that there is absolutely no consideration of the petitioners case, while considering the case of the opposite party nos.3 to 5 for the post of Market Sarkar and the next ground contended by learned senior counsel for the petitioners is that the promotion of opposite party nos.3 to 5 to the posts of Market Sarkar also contravene the provisions contained in Odisha Agricultural Produce Market Act, 1956 (for short 'the OAPM Act').
5. While submitting as above, Mr. Rath, leaned senior counsel for the petitioners drawn my attention to Section 9 of OAPM Act, 1956, which read as hereunder.
"9. Employment of Staff-(1) The Market Committee may employ such officers and employees as may be necessary for the management of the market and may pay such officers and employees such salaries as the Market Committee thinks fit.
Market Committee has been described in Section-6 of the said act, which prescribes as hereunder.4
6. Constitution of Market Committee- Every Market Committee shall be constituted in the manner prescribed and shall consist of seventeen members, of whom-
(i) for shall be persons elected by the licensed traders from among themselves;
(ii) eight shall be persons elected by organization of agriculturists in the market area recognized by the State Government for the purpose and where no such Organisation exists they shall be nominated by the Collector of the district.
(iii) two shall be persons elected by the local authorities within whose limits the market area is situated, of whom-
(a) one shall be elected by the Councilors of the Municipality; and
(b) the other shall be elected by the members of the Grama Panchayat;"
The submission of learned senior counsel for the petitioners is that as per the provisions referred to hereinabove the Market Committee is to employ such officers and employees as may be necessary for the management of the market and may pay such officers and employees such salaries as the Market Committee thinks fit. He, further, draws my attention to Section 6 of the Odisha Agricultural Produce Market Act, 1956, which deals with constitution of Market Committee. On this background of the case, learned senior counsel for the petitioners submitted that there is no provision regarding 5 Appointment Sub-committee under the Odisha Agricultural Produce Market Act, 1956. Therefore, constitution of Appointment Sub- committee for working out promotion to the post of Market Sarkar is also illegal thereby such the impugned selection is also bad in the eye of law.
6. Per contra, though nobody appears on behalf of the opposite parties, the case record reveals a counter at the instance of the opposite party nos.1, 2 and 6. Those opposite parties in their counter while disputing each of the allegations made in the writ submitted that there is no illegality in their action in the matter of promotion to the post of Market Sarkar. It is further contended in their counter affidavit that the concerned Market Committee has adopted the basic principle for promotion of merit-cum-seniority, which is subject to consideration by the Appointment Sub-committee. In Para-5, it is stated that the R.M.C. has followed the provisions contained in Section 9 of the OAPM Act and Rule 33 of Odisha Agricultural Produce Market Act, 1958 and the departmental guidelines. The Appointment Sub- committee duly constituted considered the case of the petitioners' vis- à-vis the case of the opposite party nos.3 to 5 and found the case of the petitioners not suitable for promotion. The case of the opposite party nos.3 to 5 being found more suitable than the case of the petitioners was recommended for consideration with due approval of OAPM Board. The opposite party nos.1, 2 and 6 also contended in their counter that the opposite party nos.3 to 5 have been promoted basing on the findings of the Selection Committee and the opposite party nos. 1, 2 and 6 have followed all the requirements of law. The recommendation of promotion of the opposite party nos.3 to 5 has also 6 been approved under Rule-33 of OAPM Rules, 1958 by the OAPM vide their letter no.2208 dated 29.12.1993.
7. Similarly, though nobody represented the opposite party nos.3, 4 and 5, during the course of hearing, from the record, I find that the opposite party nos.4 and 5 also filed a counter affidavit on 26.07.1995, inter alia, contending therein that on receipt of the promotion order, they have all joined the promotional posts since December, 1993 and in the meanwhile their promotion has been approved by the Director of Markets.
8. Under the premises, the main thrust of argument of the petitioners is that the promotion of opposite party nos.3 to 5 suffers on account of two grounds:-
(1) There is no consideration of the case of the petitioners at all in the matter of the promotion to the posts of Market Sarkar; and (2) There is no provision for constitution of Appointment Sub-committee for the purpose of consideration of the cases of promotion. Hence, duties and responsibilities of Market Committee cannot be re-delegated to anybody else in absence of amendment of the particular Act.
9. As per promotion hierarchy, persons from the posts of Yardmen are promoted to the post of Market Sarkar and particularly in view of the provision in OAPM Act there is a provision for constitution of a Market Committee to employ such officers and employees in the 7 regulating market committee, there is no question of creation of Appointment Sub-committee. Therefore, the consideration of promotion being held at the instance of the Appointment Sub-
committee is bad in eye of law. Section 9 of OAPM Act, 1956 clearly caste a duty on the market committee to employ such officers and employees in RMC as may be necessary. Neither the said act nor the rule framed thereunder prescribes any provision for constitution of appointment Sub-committee for taking the matter of promotion. Therefore, there was wrong creation of Appointment Sub-committee. Similarly, perusal of document vide Annexure-A/1, does not reveal consideration of the case of the petitioners vis-à-vis the case of the opposite nos.3 to 5, since there is specific allegations by the petitioner that there is no consideration of their case in the matter of promotion to the post of Market Sarkar, the opposite parties ought to have specifically answered the same.
10. The opposite party nos. 1, 2 and 6 ought to have brought records through their counter affidavit to establish that the cases of all the petitioners have been considered and being found unsuitable, instead opposite party nos.1, 2 and 6 have only made a statement in their counter that the case of the petitioners have been considered and rejected.
11. In this view of the matter, I find that there is no material either to establish the claim of the opposite party nos. 1, 2 and 6 to throw light on the provision for constitution of Appointment Sub- committee for promotion of the employees in Regulated Market Committee or there is consideration of the case of the petitioners in the 8 alleged promotion. In this background, I hold the submission of the petitioners has force, I, therefore, declare that non consideration of the case of the petitioner for the post of Market Sarkar as well as Constitution of Appointment Sub-committee being contrary to the provisions contained in the Act are bad consequently the selection of the opposite party nos.3 to 5 is also bad. Since the case of the petitioners as per their own statement has not been considered for the promotion to the posts of Market Sarkar, while declaring the promotion of the opposite party nos.3 to 5 as bad, I feel it appropriate to give a direction to opposite party nos.1 and 2 for consideration of the case of the petitioners' vis-à-vis the opposite party nos.3 to 5 for being appointed as Market Sarkar afresh and proceed accordingly. Their placement in the gradation list will be dependant on the decision in the fresh selection of the petitioners and the private opposite parties for the post of Market Sarkar by virtue of the direction contained hereinabove.
12. The entire exercise of re-consideration as directed hereinabove will be done within a period of two months from the date of receipt of the certified copy of this judgment.
13. This writ petition succeeds, however, there shall be no order as to costs.
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Biswanath Rath, J.
Orissa High Court, Cuttack.
The 1st day of September, 2014. /Behera .