Anil Kumar vs Bhakra Beas Management Board and Another

Ashutosh Mohunta, J.—The petitioner is aggrieved by the action of respondent No. 1 in promoting the deputationists to the post of Sub Divisional Officers on adhoc basis from the officials of Drawing Establishment.

The petitioner is serving as a Circle Head Draftsman in the Bhakra Beas Management Board (BBMB) and is a regular employee of the Board. The petitioner has also passed his departmental examination on 24.3.1995. The departmental examination passed by the petitioner is a prerequisite for being promoted to the post of Sub Divisional Officer.

Various employees belonging to the States of Punjab and Haryana have been sent to BBMB on transfer. These employees have also passed their departmental examination. Respondent No. 1 by virtue of order dated 1.2.1995 (Annexure P-3) has promoted the following four persons who were diploma holders belonging to the State of Punjab as Sub Divisional Officers on adhoc basis:

Shri Baljit Singh, CHD (Pb.) Beas Dam.

Shri Y.P. Gandotra, DHD (Pb.) BSL.

Shri Inder Pal Manchanda, DHD (Pb.) Beas Dam.

Shri Jagdish Lal, DHD (Pb.) Bhakra Dam.

Similarly, vide Annexure P5 the following diploma holders who were working as Drawing Staff have also been promoted as Sub Divisional Officers:

Shri Walaiti Ram, CHD (Pb.) Bhakra Dam Admn.

Shri Mohinder Singh, DHD (Pb.) BSL Admn.

Shri Surinder Pal D/M (SC) (Pb.) Bhakra Dam Admn.

Likewise, the persons mentioned at Annexure P-7 who were also sent to BBMB on transfer have been promoted as Sub Divisional Officers.

The petitioner who is a regular employee of the BBMB has prayed that a deputationist or a transferee from the States of Punjab or Haryana is not entitled to be given promotion in the BBMB. Counsel for the petitioner has placed reliance on Bharat Krishan Sahni v. Bhakra Beas Management Board reported as 2001 (2) SCT 804 wherein it has been held as under:

I am not in a position to subscribe to the argument of learned counsel for the respondents. The staff which is sent to the Board in order to work, in fact, is a staff which has been sent there on transfer. The control of such transferee staff is still with the parent Department. They are not the employees of the Board. They are the employees of the respective Governments. That staff is not on deputation even as they do not get any deputation allowance. A partner State sends its staff in order to carry out the work of the project. So we can say that the staff of the Board comes from different sources and the control of that staff is with their respective States. Since they are not the regular employees of the Board, so they cannot rub their shoulders with the regular staff, which was appointed by the Board for the working of the Board.

Counsel for the petitioner has also placed reliance on Hussan Chand and Ors. v. Bhakra Beas Management Board and Ors. reported as 1996 (1) STC 759 wherein it has been held that the Board cannot constitute a joint seniority list vis-a-vis the employees who were recruited in the Board for the first time and the employees working in the Board on transfer. The action of the respondents in adopting the criteria of promotion has no rationality so far as the facts of the present case are concerned.

Counsel for the petitioner has placed reliance on the decision of Hon''ble Supreme Court in case reported as Jai Ram Sharma Vs. Jammu Development Authority, in which it has been held that the deputationists cannot be considered in preference over regular employees for promotion. Lastly, it has been contended by learned Counsel for the petitioner that the BBMB has failed to frame rules and regulations governing Class I and Class II services despite the fact that Hon''ble Supreme Court in case Sohan Lal and Ors. v. Union of India and Ors. SLP (C) No. 447 of 1978, it had been observed that the respondent Board will at an early date make new terms and conditions of service for its employees. The copy of order of Hon''ble Supreme Court has been placed on record as Annexure P1 with the writ petition. Emphasizing on this aspect, learned Counsel contended that entire Class I and Class II posts in BBMB are managed by State Govt. employees, who are not interested in framing such rules so that the BBMB regular employees are denied the benefit of promotion to higher posts of Class II and Class I in the Board.

To rebut the arguments addressed by learned Counsel for the petitioner, it has been submitted by Shri N.S. Bawa, learned Counsel for the respondent Board, that even though no rules have been framed for governing Class II and Class I posts in BBMB, the respondent Board has been following the Punjab Govt. memo No. 5/3/84/21PPII/5548 dated 23.4.1992 in which certain percentage has been fixed for promotion from Class III to Class II and the members of drawing staff to which the petitioner belongs have been granted 6% posts. All the members of drawing staff/Junior Engineers who have passed departmental examinations are considered for promotion according to seniority/length of service amongst the staff drawn from the partner States working in BBMB and BBMB employees. Learned Counsel for the respondent further submitted that since no junior to the petitioner has been promoted, there is no violation of Article 14 of the Constitution and the writ petition deserves dismissal. It has also been stated by the counsel for the respondent that since the petitioner has chosen to take premature retirement, he cannot be granted any benefit of promotion at this stage.

In reply to the aforementioned contention, counsel for the petitioner submits that the aforesaid resolution admittedly relates to Class III post and would have no relevance in the present context because the petitioner herein claims promotion from Class III to Class II post.

I have given thoughtful consideration to the submissions made on behalf of counsel for the parties. In view of the law declared by the Hon''ble Supreme Court in Jai Ram Sharma''s case (supra) and in the case of Bharat Krishan Sahni (supra), no joint seniority could be made by the respondent Board of the State Govt. employees working in BBMB on deputation or on transfer and the BBMB regular employees. It is also settled law that deputationists cannot be considered in preference to regular employees for promotion. Therefore, the Punjab Govt. memo dated 23.4.1992 relied upon by the counsel for the respondent Board would be of no help. Apparently, the petitioner has been discriminated inasmuch as the first available post ought to have been filled up by eligible available regular employee of the Board and then the remaining posts could be filled up from State Govt. employees working in BBMB because preference in promotion was required to be given to BBMB regular employee and not to the State Govt. employees. The petitioner is thus entitled for promotion on preference over deputationists/transferees from State Governments against first available post on his having become eligible for promotion on 27.7.1995.

Regarding the non framing of Rules by BBMB with respect to Class I and Class II posts it would suffice to observe that the observations of Hon''ble Supreme Court as made in case of Sohan Lal and others (Annexure P-1), ought to have been adhered fully by framing regulations for entire service whereas the BBMB has framed regulations only concerning Class III and Class IV posts. I find force in the contention of counsel for the petitioner that the higher authorities in BBMB who belong to State Govt. are intentionally not framing such regulations so as to deny this benefit to the regular employees like petitioner in the Board. It is hoped that the BBMB would seriously consider framing of regulations for Class I and Class II posts in terms of the decision of Hon''ble Supreme Court in Sohan Lal''s case (supra) so that there is no discrimination amongst the various categories of employees working in BBMB.

For the above reasons, this petition is allowed. The petitioner is held entitled for promotion to the post of S.D.O. over and above State Government employees promoted vide office order Annexure P-5 w.e.f. 18.10.1995 when posts were filled up from State employees. The petitioner having been wrongfully denied this legitimate promotion would be entitled to all consequential benefits.