Avinash Chand & Ors vs Chairman, Market Committee & Ors

1 REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 8229-8230 OF 2003

AVINASH CHAND & ANR. & ORS. ..... APPELLANTS

VERSUS

CHAIRMAN MARKET COMMITTEE & ORS. & ETC. ..... RESPONDENTS

O R D E R

1. These appeals by way of special leave are

directed against the judgment of the Division Bench of

the Punjab and Haryana High Court dated 15th March,

2010 whereby the writ petition challenging the

provision of a retirement age for auctioneers in the

Market Committee, have been dismissed. The facts are

as under:-

2. The appellants, and several others who had filed

writ petitions in the High Court, were working as

auctioneers on commission basis in the Market

Committee, Kaithal since the year 1963-64 as per Rule

24(5) of the Punjab Agricultural Produce Markets

General Rules, 1962, (hereinafter for short 'the

Rules'). On 3rd November, 1992, the Chief

Administrator, Haryana State Agricultural Board

addressed a directive to the Chairmen and Secretaries

of the Market Committees reiterating a directive dated 2 REPORTABLE

26th August, 1982, that the auctioneers on commission

basis should not be allowed to work beyond the age of

60 years. As a consequence of the aforesaid

instructions, the services of the appellants were

terminated on 27th August, 2000 as they had crossed the

age of 60 years. The instructions aforesaid were

accordingly, challenged before the High Court. On

notice, the respondent Marketing Board and the

concerned Market Committees controverted the pleas

raised in the writ petition. It was pointed out that

the appellants and others like them had been engaged on

fixed rates on commission basis as per bye-law 28 of

the Punjab Market Committee Bye-laws, 1963 and that the

instructions had been issued in conformity with Rule

24(5) ibidem. The High Court, during the course of its

judgment observed that Section 33(4)(ii) of the Punjab

Agricultural Produce Markets Act 1961, which was

applicable to Haryana State as well provided that it

was open to the Board to issue instructions in matters

which were likely to adversely affect the interests of

the Committee or the producers or dealers or any

functionaries working in the notified area, and the

instructions were thus authorised by statute. The

Court also noted that in the arguments made on behalf

of the appellants that the instructions of 1992 could 3 REPORTABLE

not be made retrospectively applicable to their case,

it was pointed out that similar instruction had first

been issued in the year 1982 (and had only been

reiterated in the year 1992) and that in any case the

auctioneers were not employees of the Committees or of

the Marketing Board. The Court accordingly held that

the instructions issued by the Chief Administrator

laid down a policy and in the absence of a fixed tenure

laid down by instructions or by Statute or Rules it was

not open to the appellants to claim that they should be

allowed to continue till they remained physically fit.

The High Court, accordingly, dismissed the writ

petition leading to this appeal. Leave was granted in

the year 2003 and the matter has come up today for

final disposal. We also notice that although liberty

had been given on 6th October, 2003 to request for an

early hearing and despite the fact that the matters are

on the list, the counsel for the appellant has not

appeared before us, although we had waited for him for

some time. In the light of the fact that these matters

are extremely old, we are not inclined to adjourn them

any further.

3. We have gone through the judgment of the

Division Bench of the High Court very carefully with

the assistance of the learned counsel for the 4 REPORTABLE

respondent. Certain facts can be culled out from the

judgment of the High Court:(1) that till the issuance

of the instructions in 1982 as reiterated in 1992 there

was no maximum age limit laid down for auctioneers who

had been engaged on commission basis; (2) that the

auctioneers were not employees of the Board or the

Committees as they were engaged specifically for the

purpose of conducting auctions on commission basis and

that their services were not governed by any Rules; (3)

it was only appropriate in the absence of Rules, that

the instructions issued by the Chief Administrator

which were in the interest of the Board and the

Committees and, therefore, visualised under Section 33

(4)(ii) of the Act, should be made applicable to the

case of the appellants; and (4) in the light of the

fact that till then, there was no instructions

regarding the maximum age of the auctioneers, it was

appropriate for the Board to fix the retirement age at

par with all government employees who were allowed to

continue upto the age of 60 years and in this view of

the matter, it could not be said that the step taken by

the Chief Administrator was arbitrary or without

basis. We endorse the findings of the Division Bench.

In the absence of rules, it was open to the Chief

Administrator to fix the retirement age and it would be 5 REPORTABLE

futile for the appellants to contend that they should

be allowed to continue to function till they remained

physically fit. We thus find no merit in the

appeals. Dismissed with no order as to costs.

..................J [HARJIT SINGH BEDI]

..................J [K.S. RADHAKRISHNAN]

NEW DELHI MAY 06, 2010.