S S SODHI Vs. STATE OF PUNJAB
LAWS(SC)-1990-3-74
SUPREME COURT OF INDIA (FROM: PUNJAB & HARYANA)
Decided on March 01,1990

S.S.SODHI Appellant
VERSUS
STATE OF PUNJAB Respondents


Cited Judgements :-

CHANDRA BALLABH VS. DELHI DEVELOPMENT AUTHORITY [LAWS(DLH)-1998-12-17] [REFERRED TO]
M THAHA VS. DIRECTOR GENERAL NIRD [LAWS(APH)-1992-1-6] [REFERRED TO]
B S B G TILAK VS. G R V PRASADA RAO [LAWS(APH)-2001-4-146] [REFERRED TO]
RAMJI DASS AND OTHERS VS. STATE OF PUNJAB AND OTHERS [LAWS(P&H)-2013-5-361] [REFERRED TO]
CHANDER PRABHA VS. STATE OF HARYANA AND OTHERS [LAWS(P&H)-2012-2-412] [REFERRED]
DEEPA C DAS VS. DEEPA M M [LAWS(KER)-2019-1-7] [REFERRED TO]
SATYABIR AND OTHERS VS. HARYANA URBAN DEVELOPMENT AUTHORITY [LAWS(P&H)-2006-10-561] [REFERRED]


JUDGEMENT

S.C.AGRAWAL - (1.)WE have heard learned counsel for the parties at length. WE hereby grant special leave to appeal against the judgment and order of the High Court of Punjab & Haryana dated 21/12/1988 passed in Writ Petition No. 11657 of 1988 and proceed to dispose of the appeal.
(2.)THE appellant is employed as Enforcement Chief with the Punjab State Agricultural Marketing Board ( hereinafter referred to as 'the Board') having been promoted to the said post in November, 1985. On 4/12/1987, the Secretary of the Board submitted a proposal for creation of the posts of Manager Finance and Manager Marketing in the Board with a view to improve the operational efficiency. By letter dated 24/12/1987, the Deputy Secretary to Government of Punjab, Development Department informed the Secretary of the Board that the President of India is pleased to create the posts of Manager Marketing and Manager Finance during the year 1987-88 for reorganising the affairs of the Board and for improving operational efficiency. By Notification dated 12/02/1988 (published in the Punjab Government Gazette dated 17/02/1988) the Punjab State Agricultural Marketing Board (Class 1) Service Rules, 1988 (hereinafter referred to as 'the Rules') made by the President of India for regulating the recruitment and conditions of service of persons appointed to the Punjab State Agricultural Marketing Board (Class I) service were notified. THEse Rules are applicable to the posts specified in Appendix 'A' to the Rules. THE post of Manager Marketing is included in the said Appendix. THE method of recruitment and qualifications for recruitment are prescribed in Appendix 'B' to the Rules. For recruitment to the post of Manager Marketing it was initially provided in Appendix 'B' to the Rules that recruitment could be made (i) by direct recruitment; or (ii) by promotion. Enforcement Chief having experience of working as such for a minimum period of two years is qualified for recruitment by promotion to the post of Manager Marketing. In the proviso to sub-rule (1) of Rule 8 of the Rules it is provided that if no suitable candidate is available for appointment to a post in the Service, such post shall .be filled in by direct appointment or by .transfer, as the appointing authority may decide in this behalf. By Notification dated 13/07/1988, the rules were amended and against Serial No. 2 in Appendix 'B' relating to the post of Manager Marketing an amendment was made in column 3 whereby additional method of recruitment viz; by transfer on deputation, was inserted and in column 6 relating to qualification for recruitment by transfer on deputation the following provision was inserted:
"from amongst the Professors and Readers in the subjects of Agricultural Economics/ Agricultural Marketing. working in recognised Universities."

By letter dated 22/07/1988, the Secretary of the Board informed the Vice-Chancellor of the Punjab Agricultural University, Ludhiana that the respondent No. 4, who was at that time working as Economist (Marketing) in the Department of Economics of Punjab Agricultural University, Ludhiana, had been approved for appointment on deputation from Punjab Agricultural University as Manager Marketing to the Board for a period of two years and it was requested that he may be relieved to join his new assignment at the earliest. In pursuance of the said letter respondent No. 4 joined as Manager Marketing in the Board with effect from 28/07/1988. Feeling aggrieved by the aforesaid appointment of respondent No. 4 on the post of Manager Marketing the appellant filed a writ petition in the High Court of Punjab & Haryana. The said petition was dismissed by the High Court by order dated 21/12/1988 and thereafter the appellant has filed this appeal by special leave.

Shri Hardev Singh, the learned counsel for the appellant, has placed reliance on the proviso to sub-rule (1) of Rule 8 and has submitted that in view of the said proviso it was incumbent for the Board to first consider the case of the appellant for appointment to the post of Manager Marketing by promotion and only on the appellant being not found suitable for such promotion could the Board appoint respondent No. 4 on the post of Manager Marketing by transfer on deputation. The submission of Shri Hardev Singh is that the High Court was not right in holding that in spite of the said proviso it was permissible for the Board to make appointment on the post of Manager Marketing by any of the modes, i.e. by direct appointment, by promotion or by transfer. Shri Hardev Singh has also urged that the appellant has not been found unsuitable for promotion to the post of Manager Marketing and, on the other hand, in January, 1988 the Administrative Officer of the Board, in his note dated 13/01/1988 (Annexure 'D), after examining the service record of the appellant, had recommended that in case the Board desires to fill up the post of Manager Marketing through promotion there is no better choice than the appellant.

(3.)SUB-rule (1) of Rule 8 of the Rules provides as under:
"(8) Method of recruitment and qualifications

(1) SUBject to the provisions of sub-rule (4) appointment to the service shall be made in the manner specified in Appendix 'B'.

Provided that if no suitable candidate is available for appointment by promotion to a post in the service, such post shall be filled in by direct appointment or by transfer, as the appointing authority may decide in this behalf."

The proviso to sub-rule (1) of Rule 8 stipulates that in the matter of appointment to a post governed by the Rules the appointing authority will first consider the candidates who are eligible for such appointment by promotion and if no suitable candidate is available for such appointment by promotion then the post may be filled in by direct appointment or by transfer as the appointing authority may decide in this behalf Shri J. K. Sibal, the learned counsel for the Board and respondent No. 4, has not been able to show that the said proviso has a different meaning. The contention of Shri Sibal is that before the appointment of respondent No. 4 on the post of Manager Marketing the Board has considered the appellant and he was not found suitable for promotion to the said post. We are, therefore, unable to agree with the view of the High Court that in spite of the proviso to sub-rule (1) of Rule 8 it was open to the appointing authority to fill up the post of Manager Marketing by any of three methods of recruitment viz; (i) by direct appointment; (ii) by promotion or (iii) by transfer and that it was not necessary for the appointing authority to first consider the claim of the departmental candidates for promotion and go to other modes of recruitment only when such departmental candidate for promotion was not available.

It is, therefore, necessary to consider whether the suitability of the appellant for promotion to the post of Manager Marketing was considered before it was decided to appoint respondent No. 4 on the said post by transfer on deputation in July, 1988. In this context, it may be mentioned that in the proposal for creation of the post of Manager Marketing the Secretary of Board, in his letter dated 4/12/1987 (Annexure 'B') has stated as under:

"The work connected with Enforcement, Development of markets and Project schemes and the work of Market Intelligence is handled in different branches headed by Enforcement Chief (Rs. 1775-2100-, A.M.D.S. (Rs. 1200-1850) and Project Officer (Rupees 1200-1850) respectively. There is strong need for co-ordinating the work of all these branches and putting them under a common head so that we have an integrated, approach for achieving better result. The work of all these branches is interrelated and interconnected. Putting them under a common head will improve matters and increase operational efficiency. Even otherwise there is stagnation in senior ranks in the Board, The post of Enforcement Chief is the senior most one. The avenues of promotion are limited. To motivate our officers for better performance we have to create chances for their promotion. At present there is no promotion beyond the post of Enforcement Chief. The officer presently working as Enforcement Chief is struck up at the maximum of the pay scale. Creation of higher post will open a new avenue of promotion and thus provide motivation of better performance. Creation of the post of Manager Marketing in the pay scale of Rs. 2100-2500 is proposed."

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