Patna High Court
Krishna Kumar Srivastava vs Bihar State Agricultural Marketing ... on 17 December, 1982
Equivalent citations: 1983(31)BLJR297
JUDGMENT
Hari Lal Agarwal and Ram Naresh Thakur, JJ.
1. By this writ application, the petitioner challenges the order of his transfer dated the 19th May, 1981 (Annexure-2) passed by the Secretary of the Bihar State Agricultural Marketing Board, Patna, respondent No. 3, transferring him from the office of the Agricultural Produce Market Committee, Buxar, to the office of the Bihar State Agricultural Marketing Board as an Accountant, the post which he was holding on the relevant date.
2. Initially, the petitioner was appointed as a Cashier by the Market Committee at Buxar on 15.11.1966 (Annexure-1). According to his further case made out in the reply to the counter-affidavit filed on behalf of respondents No. 1 to 3, he was promoted to the post of Accountant by the Market Committee vide resolution No, 564 and 565 dated the 31st January, 1976,which was forwarded to the Marketing Board for its formal approval. The petitioner challenges his order of transfer mainly on the ground that the Marketing Board had no jurisdiction to pass the order, inasmuch as the Buxar Market Committee was an independent unit under the Bihar Agricultural Produce Markets Act.
3. In order to appreciate the rival contentions of the parties, we shall refer, in brief, some of the relevant provisions of the Act which came into force in the year 1960. The vires of the Act and if various provisions were challenged from time to time in this Court as well as in the Supreme Court but this withstood the attacks. It would appear from the preamble that the Act purports to make provisions for establishment of markets for Agricultural Produces and for providing services in such markets to regulate buying and selling of the agricultural produce to protect the interest of the poor agriculturists and the like, In the definition Clause (bb) "Board" means the Bihar State Agricultural Marketing Board established under Section 33-A and in Clause (h) "Market" means a market established under the Act for the market area including the principal market yard, etc. The market area has also been separately defined but we are not concerned with all those. Procedure have been laid down in Chapter II of the Act for constitution of markets and Market Committees starting from Section 3 upto Section 16 Section 6 deals with the "establishment of the market committees" and according to this provision the State Government is to establish a Market Committee for every market area by a notification. Section 7 also fixes the strength of the Market Committee and according to Section 8, all the members of the first Market Committee are to be appointed by the State Government from amongst the persons representing the same interest and in the same proportion as specified in the next section (Section 9). We are not concerned in this case with the constitution of the second and subsequent Market Committees as provided under Section 9 or the disqualification of the members of the Market Committee and filling of the casual vacancies as prescribed under Sections 10 and 11 and other procedural provisions for the election and publication of the names of the members and their removal etc. Chapter III deals with the incorporation of the Market Committee, its objects, powers and duties. According to Section 17, every Market Committee shall be a body corporate by such name as the State Government may specify by notification in the official Gazette. This Market Committee shall have perpetual succession and a common seal with power to acquire and hold property, etc., and shall be competent to do all other things necessary for the purposes for which it is established.
Section 21 defines the powers and duties of the officers and servants of the Committee. It is better to quote Section 21 which runs as follows,--
The Chairman, Vice-Chairman, the Secretary, Engineer and other officers and servants of the Market Committee shall exercise such powers and perform such duties as are conferred or imposed on them by or under this Act or by the Market Committee or the rules or bye-laws.
The other sections falling under this Chapter dealing with other matters regarding levy fees and carrying out the business of the Market Committee are not relevant for our purposes. Stopping at this stage of the Act, it becomes abundantly clear that like other 'bodies' having similar powers the Market Committee also is an Autonomous and independent body having its distinct and independent body having its distinct and independent personality. But the subsequent provision makes the matter little complicated by insertion of Chapter IVA in the year 1980, incorporating Section 33-A and other sections in the Act with respect to the authority and power of the Marketing Board."
4. Section 33-A prescribes the establishment of a Marketing Board called the Bihar Stale Agricultural Marketing Board "for the purpose of exercising superintendence and control over the Market Committees, and for exercising such other powers and performing such functions as are conferred or entrusted under this Act". Section 33-E is another relevant section in this regard which deals with the appointment of officers and servants of the Board. Sub-section (3) empowers the Board to "constitute a cadre of the officers and other servants common to all Committees as it may deem lit." This sub-section contains an overriding effect over the provisions contained in Chapter II of the Act with respect to the authority and independence of the Market Committees. According to Sub-section (4) of this Section, "every person...on and from the date of the constitution of the cadre becomes a member of the cadre...and shall hold his office or service therein by the same tenure, at the same remuneration, and upon the same other terms and conditions and with the same rights and privileges as to pension, gratuity and other matters as he would have held the same on the said date but for the constitution of the cadre and shall continue to do so until the employment as a member of the cadre is terminated or until his remuneration or other terms and conditions of service are revised or altered by the Board...." This provisional once exposes the employees of the Marketing Committees to be a member of a common cadre and once this fact is clear, it becomes obvious that, on the constitution of a joint and common cadre of the officers and other servants of the Market Committees, their posts become transferable from the Market Committee to another throughout the territorial jurisdiction of the Market Board. But the proviso to this Sub-section (4) is equally relevant and imposes two conditions to fulfilled for making the common cadre operative against them. That reads as follows:
Provided that nothing contained in this section shall apply to any such person who, by notice in writing given to the State Government may within such tine as the State Government may by general or special order specify, intimate his intention of not becoming a member of the cadre.
The proviso, according to the well established rule of construction, will have the overriding effect over the provisions of Sub-section (4) of Section 33-E of the Act. And the legislature in its wisdom left the right of election in the hands of the officers and the employees of the Market Committees as to whether they would or would not prefer to be a member of the cadre. Undisputedly, no order of the State Government has been issued in this regard so far calling upon the employees of the Market Committee to give any notice of their intention of becoming a member of the said cadre or not,
5. In the counter-affidavit tiled on behalf of respondents 1 to 3, an office order dated the 26th November, 1975, has been filed an Annexure-D thereby creating a cadre of the Accountants under the control of the Board consisting of 80 posts. It stipulates that appointments to these posts would be made by the Board which will be transferable. It also contemplates the holding of written test and contains certain relaxations in the case of Accountants serving in the Market Committees. In the counter-affidavit, the respondents have stated that a common cadre of Accountants of the Board and the Accountants in the different Market Committees was created and constituted under this document Annexure-D. It has been claimed that the Board decided to hold examination and the existing eligible employees were allowed to appear at the examination. The names of the successful candidates were also communicated under memo No. 7884 dated the 26th November, 1975 (Annexure-C), In this list, the name of the petitioner finds place at serial No. 13 but it would appear from this Annexure-C that the examination in question was held much earlier, on the 17th August, 1975. No disability can be attached to the petitioner by application of the doctrine of estoppel even if it could apply in the facts and circumstances of this case mentioned above. But, in the reply to the counter-affidavit, the petitioner has claimed his promotion to the post of Accountant not by virtue of his passing this examination and any order of appointment by the Board but on account of his promotion under a resolution of the Board which has been mentioned above. It has, however, been stated that on the basis of the result of the examination, the petitioner was appointed on the 26th November, 1975. by the Board as Accountant-vide Annexure 'D' and in that view of the matter, he is not an employee of the Market Committee
6. Apart from the provision contained in the proviso to Sub-section (4) of Section 33-E of the Act, which we have extracted, the office order dated the 26th November, 1975 (Annexnre-D) purports to create 80 posts in the cadre which were created under that order and also for holding a test in future (PARIKSHA LI JAYEGI), examinations, if any, held earlier, cannot be deemed in the eye of law to be the examination in respect to the appointment which was contemplated for filling up the 80 posts in the cadre that was created by Annexure-D. The assertion in the counter-affidavit that the petitioner ceased to be an employee of the Buxar Market Committee after his so called appointment on the 26th November, 1975, is entirely misconceived and erroneous inasmuch as the petitioner must be deemed to be an employee of the Buxar Market Committee which was liable to pay the salary and other emoluments to the petitioner until he was transferred. Therefore, the respondents have failed to establish that the petitioner was appointed in the cadre which was constituted under Annexure-D. Even assuming for the sake of argument that he was so appointed, he took exceptions to his transfer. He filed a Title Suit challenging the order contained in Annexure-2 and thereafter a wrif petition in this Court inasmuch as an opportunity to declare his intention to remain outside the cadre as contemplated under the proviso has not been afforded to him so far. The result of the above discussions is that this application must succeed and the order of the petitioner's transfer contained in Annexure-2 must be quashed. It may well be that the petitioner will be deemed to be outside the cadre constituted by the Marketing Board and not entitled to claim any privilege given to the members of that cadre Before parting with this case we may also clarify some anomalies which followed on account of the order of the petitioner's transfer by relieving the petitioner from the Buxar Market Committee. That order obviously was passed on account of the assumption that the petitioner ceased to be an employee of the Buxar Market Committee. For the view we have taken, it is obvious that the petitioner must be deemed to be in the employment or the Buxar Market Committee.
7. The application accordingly succeeds. Let a rule be issued but in circumstances of the case parties shall bear their own costs.