Mahan Singh and Others vs Union of India (UOI) and Others

V.P. Gupta, J.—The Petitioners, who are Sectional Officers, Draftsmen, Tracers, Sub-Divisional Clerks, Clerks, Stenotypists, claim that they are working in the Bhakra-Beas Management Board (hereinafter the B.B.M.B.) and the Respondents are contemplating to shunt them out from the B.B.M,B. by treating the posts held by them as vacant with a purpose to fill these posts by taking employees on deputation from the States of Punjab, Haryana etc. They pray that orders already issued by the Respondents Nos. 10 and 12 shunting out the services of the Petitioners Nos. 58 and 59 from the B.B.M.B. be quashed and the Respondents be prohibited from giving effect or to act upon the decisions/letters contemplating the shunting out of the Petitioners from the B.B.M.B. and also quash the letters and the orders dated 4-1-1981, 15-1-1981,18-1-1981, 16-4-1981 and 27-5-1981 issued by them.

To understand the facts, it is necessary to trace the history as to how the Petitioners were inducted in the service.

In the year 1960 the construction of Beas Project was started as a joint venture of the erstwhile States of Punjab and Rajasthan by a mutual agreement and a board known as Beas Control Board was constituted by the Central Government on 10-2-1961 in consultation with the States of Punjab and Rajasthan. All policy and administrative decisions were to be taken by the Beas Control Board and these were implemented by the Punjab Government because the Punjab Government was administering and executing the work of the Beas Project. The expenditure was shared by the Punjab and Rajasthan States.

On 1-11-1966 the Punjab Reorganisation Act, 1966 (hereinafter the Act) came into force. Part VIII of the Act deals with the Bhakra Nangal and Beas Project. u/s 78 of the Act, Bhakra Nangal Project and the Beas Project became the concern of the States of Rajasthan and Punjab and Haryana and the Union Territory of Himachal Pradesh with effect from 1-11-1966.

A board called Bhakra Management Board (hereinafter B.M.B) was constituted by the Central Government for the administration, maintenance and operation of the works u/s 79 of the Act, with effect from 1-11-1967. The B.M.B. was to consist of: (a) a whole time Chairman and two whole time members to be appointed by the Central Government; (b) a representative each of the Governments of the States of Punjab, Haryana and Rajasthan and the Union Territory of Himachal Pradesh to be nominated by the respective Governments or Administrator as the case may be; (c) two representatives of the Central Government to be nominated by that Government.

The B.M.B. was to be under the Control of the Central Government and was to comply with such directions as may from time to time be given to it by that Government. u/s 80 of the Act the construction (including the completion of any work already commenced) of the Beas Project shall on and from the appointed day, be undertaken by the Central Government on behalf of the successor States and the State of Rajasthan and in the discharge of its functions the Central Government could by a notification in the Official Gazette and in consultation with the Government of successor States and the State of Rajasthan constitute a board to be called the Beas Construction Board (hereinafter B.C.B) with such membeis as it may deem fit and assign to this board such functions as it may consider necessary. The B.C.B. could be empowered to appoint such staff as may be necessary foi efficient discharge of its functions, provided that every person who immediately before the constitution of the B.C.B. was engaged in the construction of any work relating to the Beas Project was to continue to be so employed by the B.C.B. in connection with the said work on the same terms and conditions of service as were applicable to him before such constitution until the Central Government by order directed otherwise. u/s 80(5) of the Act any component of the Beas Project in relation to which the construction had been completed after the appointed day (1-11-1966) could be transferred by the Central Government to the B.M.B. whereupon the provisions of Section 79 of the Act were to apply as if it were a work included in sub-section (1) of Section 79 of the Act. u/s 80(6) of the Act the B.M.B was to be re-named as B.B.M.B. when any of the components of the Beas Project had been transferred under sub-section (5) of Section 80 of the Act and the B.C.B. was to cease to exist when all the components of the Beas Project had been so transferred. The B.M.B. was renamed as B.B.M.B. on 15-5-1976 when two components of the Beas Project were transferred to B.M.B. Thus part VIII of the Act provided for the constitution and prescribed the functions and powers of the Boards known as :

(1) B.M.B.

(2) B.C.B.

(3) B.B.M.B.

Before re-organisation, however, there was only one Board known as Beas Control Board.

The admitted facts are that the Petitioners were emp loyees of B.G.B. constituted u/s 80 of the Act for the construction (including the completion of any work already commenced) of the Beas Project. After the construction work was over and the components were transferred to B.M.B constituted u/s 79 of the Act, the staff of the B.G.B. engaged in the construction, maintenance and operation of the works was to be employed on the same terms and condi tions of service as were applicable to them before the cons titution of B.M.B. until the Central Government by order direc ted otherwise. The Petitioners should have been taken over as employees by the B.M.B. u/s 79(4) of the Act.

The powers given u/s 79(4) of the Act are statutory powers for recruitment of the staff by the B.M.B., while u/s 80(3) of the Act, the B.C.B. could only be empowered by the Central Government to appoint such staff as maybe necessary for the efficient discharge of its functions provided that every person who immediately before the constitution of the B.C.B. was engaged in the construction of any work relating to Beas Project shall continue to be so employed by the B.C.B. in connection with the said work on the same terms and conditions of service as were applicable to him before the constitution of the B.C.B. until the Central Government by order directed otherwise.

The Central Government had powers to make rules to give effect to the provisions of the Act as also with respect to the salaries and allowances and other conditions of service of the members of the staff of B.M.B. or the B.C.B.

The Petitioners now claim that their services were transferred to B.B.M.B. and they cannot be shunted out from the B.B.M.B. The components of the B.C.B. were complete and the works were transferred to B.B.M.B. in 1978 and thereafter the Petitioners had been working as employees of B.B.M.B. They further contend that both B.C.B. and B.B.M.B. were constituted by the Central Government and were to comply with the directions of the Central Government therefore, they are Central Government employees. The Respondents, however, denied their status as Central Government employees and they had to file writ petitions in the Supreme Court. The Supreme Court decided these writ petitions on 29-8-1979 by a common judgment delivered in Jaswant Singh and Others Vs. Union of India (UOI) and Others, , wherein it was held that the Petitioners were the employees of the Central Government and could be considered for quasi-permanent status. The Petitioners then requested that they be declared as quasi-permanent Central Government employees. They allege that after getting themselves declared as quasi-permanent employees of the Central Government and after having been transfened to the B.B.M.B., the Respondents are still raising frivolous disputes about the status of the Petitioners. It is alleged that at the time of the appointment of the Petitioners in quasi-permanent capacity they were working under the B.B.M.B. and not under the B.C.B. The Divisions and the Sub-Divisions of the Beas Project in which the Petitioners were posted were transferred from B.C.B. to B.B.M.B. The Petitioners have apprehensions about their services being terminated and the posts held by them in the Beas Project under the B.B.M.B. being treated as vacant because the Respondents are making efforts to employ persons on deputation from the States of Punjab and Haryana in these vacant posts. Some letters/orders have been issued to the effect that the posts held by the Petitioners are surplus. The Petitioners claim that the orders/letters issued by the Respondent regarding the abolition of the posts held by them and with respect to the shunting of the services of the Petitioners, are illegal and against Articles 14 and 16 of the Constitution of India. Such letters/orders are also against the principles of natural justice because no reasons have been given and the Petitioners have not been heard.

The petition was contested by the Respondents on the grounds that the B.C.B. was constituted by the Central Government for the construction (including the completion of any work already commenced) of the Beas project and the B.G.B. was empowered to appoint such staff as was necessary for efficient discharge of its functions After the completion of the construction work of any component of the Beas Project any such component could be transferred by the Central Government to B.M.B. The B.M.B. was constituted for the administration, maintenance and operation of the works and it had nothing to do with the construction work which was completed by the B.C.B. The B.M.B. was re-named as B.B.M.B. when any of the components of the Beas Project were transferred to B.M.B. After transfer of all the components of the B.C.B., the B.C.B. would have ceased to exist. According to the Respondents some of the components were transferred to B.M.B. in May, 1978 and, therefore, the B.M.B. was re-named as B.B.M.B. It is also alleged that the functions of B.C.B. and B.B.M.B. are distinct and that all the employees of the B.C.B. cannot be employed in the B.B.M.B. because the strength of the employees meant for the construction work could be totally different than the strength of the employees meant for the administration, maintenance and operation of the works. It is also alleged that the Petitioners were never taken in the employment of B.B.M.B. and they always remained as employees of the B.C.B.

It is contended that the B.M.B. had a statutory power to employ staff which was considered necessary for the effi cient discharge of its functions while for B.C.B. the Central Government had to issue a notification empowering the B.C.B. to appoint such staff as may be necessary for the efficient discharge of its functions. In these circumstances, it is conten ded that the present Petitioners were never employed by the BB.M.B.

I have considered the respective contentions of the learned Counsel for the parties.

This writ petition was filed on 8-6-1981. The writ petitions of Jaswant Singh and Ors. (Supra) were decided by the Supreme Court on 29-8-1979. Some of these writ peti tions were filed in the Supreme Court prior to September 4, 1978. A copy of the supplementary affidavit dated 4-9-1978 of Rajesh Chander (Annexure R-5/13) filed in writ petition No. 3598 of 1978, Jaswant Singh and Ors. (Supra) is at pages 303 to 313 of the file. The learned Counsel for the Respondents stated that the earliest writ was filed in April, 1978 in which a restraint order was issued by the Supreme Court. A certified copy of this stay order dated 10-4-1978 issued in the above-mendoned writ petition was shown to me and has been placed on the file. The Respondents by this order were restrained from retrenching and/or from taking any adverse action with reference to the existing conditions of service of the Petitioners who had filed the writ petitions and a show cause notice was issued to the Respondents.

In Jaswant Singh and Ors. (Supra) the main dispute was between the direct recruits appointed by the Central Government and the deputationists from the State Governments. The Petitioners had urged several grounds and they also prayed that the Respondents be directed to retain them in service for the purpose of the Beas Project itself and to continue to employ them in the posts held by them after the transfer of the completed work of that Project to the Beas Management Board. Another argument of the Petitioners was that the components of the Beas Project, the construction of which had been completed after November 1, 1966 had to be transferred to the B.M.B. and thereupon, the provisions of sectoin 79 of the Act come into operation as if the transferred works were included in Clauses (a) to (g) of Section 79 of the Act. They further contended that B.B.M.B. should be substituted for the words "B.M.B." and the expression in the first proviso of Section 79(4) of the Act would necessarily had reference to B.B.M.B. These contentions of the Petitioners were not accepted by the Supreme Court and the relevant observations of the Supreme Court are in paras 30 to 32 of judgment which read as follows :

The Petitioners also pray that the Respondents be directed to retain them in service for the purposes of the Beas Project itself and to continue to employ them in the posts held by them after the transfer of the completed works of that Project to the Bhakra Management Board. This prayer is founded on the provisions of the first proviso to Section 79(4) and those of sub-sections (5) and (6) of Section 80 of the Punjab Re-organisation Act. We do not think that any of the aforesaid provisions can help the Petitioners. Section 79(4) provides that the Bhakra Management Board may employ such staff as it may consider necessary for the efficient discharge of its functions under the Act. By the first proviso to this sub-section every person who immediately before the constitution of the ''said Board'' was engagedin the construction, maintenance or operation of the works mentioned in sub-section (i) shall continue to be so employed under the Board in connection with the said works, on the same terms and conditions of service as were applicable to him before such constitution until the Central Government by order directs otherwise. The proviso refers to persons who were engage din in any of the works mentioned in clauses (a) to (g) of Section 79(1), immediately before the constitution of the Bhakra Management Board. That Board was constituted on October 1, 1967 and therefore the narrow question to ask one self is whether the Petitioners were engaged in connection with any of the matters mentioned in clauses (a) to (g) of Section 79(1) immediately before that date. The Beas Construction Board was also constituted on the same date as the Bhakra Management Board, that is to say, on October 1, 1967. The Petitioners were holding their employment either under the Beas Construction Board or after November 1, 1966 under the Beas Construction Board. The first proviso to Section 79(4) is designed to protect the services of persons who prior to the establishment of the Bhakra Management Board, were engaged in the construction work connected with the Bhakra and Nangal Dams and the power houses linked therewith. The Petitioners were working on the Beas project and are not therefore entitled to the benefit of that proviso.

A branch of the same argument is that u/s 80(5) components of the Beas project the construction of which has been completed after November 1, 1966 have to be transferred to the Bhakra Management Board and thereupon the provisions of Section 79 come into operation as if the transferred works were included in clauses (a)to(g) of Section 79(1). It is urged that if any completed component of the Beas Project is transferred to the Bhakra Management Board as required by Section 80(5), as has been done in the present case on May 15, 1976 the Petitioners would become the employees of the Bhakra Management Board, since the work in connection with which they were employed is transferred to that Board. There is no warrant for this submission because, though Section 80(5) requires a completed work of the Beas Project to be transferred to the Bhakra Management Board, it does not provide that persons who were employed in connection with such a work should also be transferred as employees of the Bhakra Management Board. In the very nature of things there could be no such provision because if any persons were employed for the Beas Project only, their employment would normally cease on completion of that project. Infact, the Petitioners were taken in employment on temporary posts for the purpose of completing the Beas Project. On the completion of that project or any other works for which they were employed, their employment would normally come to an end, especially since the statute from which their rights are said to flow does not protect that employment.

Yet Anr. limb of the same argument flowing from the provisions of Section 80(6) is that since a completed component of the Beas Project was transferred to the Bhakra Management Board on May 15, 1976, that Board had to be renamed under sub-section (6) as the Bhakra-Beas Management Board. It is urged that the words ''Bhakra-Beas Management Board'' should be substituted for the words ''Bhakra Management Board'' occuring in Section 79(4) of the Re-organisation Act, and if they are so substituted, (the expression ''said Board'' in the first proviso to Section 79(4) would necessarily have reference to the Bhakra-Beas Management Board. This argument contains a fallacy. The first proviso to Section 79(4) speaks of persons who immediately before ''the constitution of the Bhakra Management Board were engaged in the works mentioned in sub-section (1) of Section 79. The scheme of Section 80 shows that the Bhakra-Beas Management Board was never constituted as such. The only effect which the statute brings about by sub-section (6) of Section 80 is the renaming of Bhakra Management Board as the Bhakra-Beas Management Board. The words ''constitution of the said Board'' cannot therefore be substituted by the words ''the renaming of the said Board''. The contemplation of Section 79(4) is that only a certain class of employees should receive protection in the matter of continued employment. Unfortunately, the Petitioners do not fall within that class since they were not employees of the Bhakra Management Board immediately before October 1, 1967 when that Board was constituted.

As the dispute was between the direct recruits of the Central Government and the deputationists from the State Governments, the contentions were also raised that there was violation of Articles 14 and 16 of the Constitution in the proposed retrenchment of the Petitioners (i.e. recruits of Central Government in B.C.B.) and it was contended that these Petitioners scould not be retrenched from service and the deputationists be allowed to take their place. In this context, the Supreme Court made the following observations in paras 35 to 37 of the judgment:

The Deputationists belong to a different class altogether and are situated differently as compared with the Petitioners, in so far as the continuation in employment is concerned. The Deputationists belong to the services of the successor States and the States, which u/s 79(5) of the Reorganisation Act, are under an obligation at all times to provide the necessary funds to the Bhakra Management Board to meet all expenses, including the salaries and allowances of the staff, required for the discharge of its function. By Section 79(3), the functions of the B.M. Board include the regulation of the supply of water from Bhakra Nangal Project to the States of Haryana, Punjab and Rajasthan. u/s 79(2) the Bhakra Management Board consists of inter alia, a representative each of the Governments of the States of Punjab, Haryana, Rajasthan and the then Union territory of Himachal Pradesh, The State of Punjab the successor States, and the State of Rajasthan are thus directly interested in the successful working of the Bhakra-Nangal Scheme, being its immediate beneficiaries. Since they are also under an obligation to provide the necessary funds to meet all expenses of the B.M. Board, including the salaries and allowances of its staff, the Governments of these States want their employees to be posted on deputation for service under that Board.

Thus, the Petitioners are employees of the Central Government while the Deputationists are employees of the respective State Governments. The terms and conditions of the Petitioners'' appointments provide for the termination of their employment by one month''s notice or pay in lieu of notice. The services are also liable to be terminated on completion of the Beas project for which they were employed . The rights and liabilities of the Deputationists flow from the terms of their service under the State Governments. On completion of the works of the Beas Project, the Deputationists working in that project are required by their employers, the respective State Governments, to work under the B. M. Board. There is no question of the entitlement or right of the Deputationists to work under that Board.

The genesis of the appointments of Petitioners and the Deputationists thus shows that they belong to two distinct and separate classes and cannot be considered as equals in the matter of continuation in their respective employments. The infirmity in the arguments of the Petitioners on the question of violation of the right to equality is that though they were employed by the Beas Construction Board for the purposes of the Beas project, they claim in the first instance. the right to be transferred to the services of the Bhakra Management Board which, as we have shown earlier, they cannot do so. The reason why they claim the right to be transferred to the services of the B.M. Board is clear. If they are entitled to be so transferred, the claim that they are equals of the Deputationists will acquire same plausibility because they will at least be serving for the time being at any rate, under the same Boards. They would then be able to claim equal treatment with the Deputationists. Since the very basis of their claim is fallacious, as they have no right to be transferred to the employments of the B. M. Board, their claim to equal treatment with the Deputationists has to fall with it.

The learned Judges thereafter observed in paras 39 and 40 that the Petitioners were employees of the Central Government and could be considered for quasi permanent status. It is also observed that while retrenching the Petitioners, the rule of ''last come first go'' would be applied inter-se amongst the Petitioners. The relevant observations are in paras 39 and 40 of the judgment which read as follows:

To sum up, we are of the opinion that the Petitioners are employees of the Central Government. Their conditions of service will be primarily governed by the terms of their appointment but, if they are entitled to the benefit of any of the rules of the Central Civil Services (Temporary Service) Rules, 1965 they may make representations in that behalf to the appropriate authorities. It is, however, not possible for this Court to grant to the Petitioners any of the reliefs claimed by them as arising out of the provisions of the aforesaid rules, including the relief by way of a declaration that they shall be deemed to be in quasi-permanent service under Rule 3. We are further of the opinion that the Petitioners have no right to be transferred to the services of the Bhakra Management Board now renamed as the Bhakra-Beas Management Board. Lastly, the proposed retrenchment of the Petitioners does not offend against the guarantee of equality contained in Articles 14 and 16 of the Constitution, since the Petitioners and the Deputationists belong to two different and distinct classes.

Before parting with the cases of these Petitioners, we would like to record the assurance given by the learned Solicitor General on behalf of the Government of India that while retrenching the Petitioners, the ''last come, first go'' rule will be applied inter-se amongst the Petitioners, and further, that if and when any direct recruitments are made to the posts under the Bhakra-Beas Management Board, preference in those appointments will be given to the Petitioners, if they are retrenched.

The services of certain categories of employees including the Petitioners were placed at the disposal of B.B.M.B. by the B.C.B. on purely temporary basis and this temporary arrangement was arrived, at in pursuance to the discussions which took place on 17-7-1979 between the General Manager, Beas Project, Chairman B.B.M.B., Deputy Secretary B & B, Ministry of Energy in the Chamber of Shri B.M. Baliappa, Joint Secretary, Ministry of Energy. This decision is incorporated in R-I/II at pages 201 to 203 of the file. The relevant portion of the decision is reproduced below:

II. Operation and maintenance of the completed components of Beas Project transferred to Bhakra-Beas Management Board.

Chairman, Bhakra-Beas Management Board explained that although the most of the Superintending Engineers, Executive Engineers, Assistant Engineers required for operation and maintenance of Beas project components transferred to Bhakra-Beas Management Board have been posted, it has not been possible to get staif in other categories, either from the States or from the Beas Project in view of the pending writ petitions of ad-hoc employees in the Supreme Court. In addition only l/3rd of the total requirement of the workmen has joined so far. It was explained that in order to tide over this difficulty it was decided in consultation with the Beas Construction Board authorities in a meeting that;

(i) Beas Construction Board retains the surp1us staff and employ them on the work of operation and maintenance of the completed works since transferred to Bhakra Management Board;

(ii) Bhakra-Beas Management Board would accept debit for pay and allowances of the Beas Construc-tion Board staff/workmen employed on operation and maintenance of the transferred components since transferred to Bhakra Beas Maaagement Board. Debit for other services would also be accepted by the Bhakra-Beas Management Board;

(iii) The General Manager, Beas Project was requested to instruct his officers to render all assistance to the Bhakra-Beas Management Board in discharge of their responsibilities in this regard;

(iv) The above interim arrangements may continue for some time till;

(a) advice on the reference made by the Bhakra-

Beas Management Board regarding payment of retrenchment compensation to the work-charged employees of Beas Project before are transferred to Bhakra-Beas Management Board under 2-C Award and on reservation for SC/ST/BC is conveyed by the Ministry;

(b) writ petitions of ad-hoc/work-charged employees of the Beas Project is heard by the Supreme Court; and

(c) sharing of posts by Rajasthan Government/ created to be created in Bhakra Management Board for operation and maintenance of Beas Project components transferred to the Bhakra-Beas Management is decided.

After detailed discussions, it was decided to approve of the proposals made by the Chairman, Bhakra-Beas Management Board. These interim arrangements would continue to start with till the. end of September, 1979. As soon as the advice on the above referred point is conveyed by the Ministry and the writ petitions are heard and decided by the Supreme Court, the Bhakra-Beas Management Board would take immediate steps to transfer regu-lar/workcharged staff from Beas Construction Board, and also arrange for balance staff (regular) from the partner States on priority basis so that they are fully equipped for looking after the operation and maintenance of the transferred components themselves after the interim arrangement is terminated by 1st October, 1979.

The aforesaid decision and the various office orders issued by the B.C.B. authorities clearly prove that the various employees of the B.C.B. were attached temporarily with the division/circle of BBMB consequent upon the transfer of the components. This temporary arrangement so long as the contract of service between B.C.B. and its employees subsisted and was not specifically terminated could not amount to the transfer of the employees to B.B.M.B.

After the judgment in case of Jaswant Singh and Ors. (supra) the Respondents approached the Department of Personnel for opinion and advice with respect to the service of the Petitioners. A copy of this opinion is annexure R-3/III at page 170 of the writ petition and it is in the following terms:

DEPARTMENT OF PERSONNEL & A.R.

[Estt. (D)]

The various points raised by the Petitioners in the Beas Project have been considered and our advice on these issues is given below:

(a) In view of the Supreme Court decision that the directly recruited officials of the Beas Project are Central Government Employees and taking into account the nature of individual orders of appoint ment, we agreed that these officials should be trea ted as temporary employees of the Central Govern ment to whom the provisions of the Central Ser vices (Temporary Service) Rules, 1965 will apply.

(b) Consequently their claim for being considered for grant of quasi-permanency will have to be considered by Department of Energy/the appointing authorities in the Beas Project, in according with the rules.

(c) The absorption of these officials on being rendered surplus in the Beas Project, in any of the posts in the Bhakra-Beas Management Board would no doubt be a matter for consideration of the Board and the Department of Energy. We would, however, that in taking a decision in this matter, humanitarian aspect of terminating the service of so many employees should be taken into consideration and also the view of the participant States. The Department of Energy may consider holding a conference to sort out the issue with Bhakra-Beas Management Board in which a representative of this Department could be associated.

(d) In case of persons who despite all efforts, could not be adjusted in any of the posts in the B.B.M.B., this Department will consider taking them on the surplus cell of this Department.

This has the approval of the Home Minister.

Sd/- J.K. SARMA, Director (E) 19-5-1980

Department of Power _____________________

DR & AR U.O. No. 552/80-Estt: Dated 19-5-80.

It is an admitted position that some components of Beas Project were transferred from B.C.B. to B.B.M.B. in 1978, and the B.B.M.B. for the operation and maintenance of these works was to employ staff by making some arrange ments. A copy of the notification regarding transfers of some of the components is Annexure R-5/1. Similarly, letters regarding job orders were also issued. Copies of the letter and also the job letter from B.B.M.B. to the B.C.B. are Annexures R-5/2 and R-5/3. In the letter, it is stated that the operation and maintenance includ ing the repairs of the components of Beas-Sutlej Link Project (hereinafter the B.S.L. Project) on behalf of the B.B.M.B. be carried out by the B.C.B. and the expenditure would be chargeable to B.S.L. project. The Respondents'' version is that in view of the pendency of the writ petitions and the stay orders issued by the Supreme Court, it was not possible for them to get adequate staff and, there fore, it was agreed in the discussions held on 17-7-1979 bet ween the B.C.B. and the B.B.M.B. authorities as also the Ministry of Energy to make interim arrangements for operation and maintenance of the completed work since trans ferred to B.B.M.B. A copy of record of such discussions is at Annexure R-5/4. According to the agreed interim arran gement job orders had to be issued to the B.C.B. by the B.B.M.B. and a consolidated book transfer bill (B.T.B.) used to be sent by B.C. B. to the B.B.M.B. towards the establishment char ges on account of their staff working on job order basis with B.B.M.B. The Respondents have placed on record copies of some of such bills as Annexures R-5/5 and R-5/6.

An application praying for issuance of a stay order (C.M.P. No. 2265 of 1983) was filled on 25-10-1983 by the Petitioners with a prayer that they may not be declared surplus surrendered surrendered to the surplus staff cell during the pendency of the writ petition. A reply to this application was filed by the Respondents and with the leply the respodents filed copy of letter dated 3-11-1983 issued from the Secretary, B.B.M.B. (R-CMP-9) enclosing a letter dated 1-11-1983 from the Chairman B.B.M.B. In this letter it is stated by the Chairman B.B.M.B. that in view of the observations of the Supreme Court in their judgment dated 29-8-1979, 50% of the posts as have been or will be created in the B.B.M.B. to be determined by the B.B.M.B. for ad ministration, operation and maintenance of the works of the Beas Project transferred to B.B.M.B. be offered to the Central Government employees of the B.C.B. and as such these 50�/ posts should be filled from out of the surplus Central Government employees of B.C.B. on terms and conditions to be determined by the B.B.M.B.

Annexure R-5/11 is the copy of C.W.P. No. 565/79 filed in the Supreme Cou:t, which was decided vide judgment in AIR 1980 S.C. 115 on 29-8-1979. A perusal of the names of the parties in this petition discloses that the present Petitioners were also the Petitioners in C.W.P. No. 565 of 1979. The petition was filed in the Supreme Court with an affidavit dated 1-6-1979. Paras 20 to 25, 28 and the prayer clause of the petition are relevant for deciding the present petition.

In the prayer clause it was prayed that the transfer orders dated 8-3-1979, 26-3-1979, 28-4-1979 and 30-4-1979 be quashed. A direction was also sought against the Respondents not to pass any further orders transferring any other officer on deputation to the B.B.M.B. on the posts claim ed by the Petitioners in writ petitions Nos. 3598, 4369 and 4423 of 1978. The next prayer was that the Respondents be directed to maintain status quo in regard to the appointment to B.B.M.B. during the pendency of the writ petitions Nos. 3598, 4369 and 4423 of 1978 pending in the Supreme Court.

In para 20 of the writ petition (C.W.P. No. 565 of 1979) the Petitioners have given a history of the case and their services.

In paras 21 and 22 they state that the B.B.M.B. will be requiring the services of the Petitioners and the jobs are available with them to absorb the Petitioners after the transfer of the completed components of Beas Project to the B.B.M.B. The Petitioners have also given the details of the jobs which can be offered by the Respondents to show that the Petitioners can be accommodated by the B.B.M.B. authorities.

In para 23, the Petitioners state as follows:

The Petitioners respectfully submit that 1 he malafide intention of the Respondents can be gathered from the-facts given hereinafter.

The various components of the Beas Project, on completion were transferred to the Bhakra-Beas Management Board in accordance with Section 79(4) read with Section 80(5) of the Punjab Re-organisation Act. The Bhakra-Beas Management Board itself does not have any staff to carry out the operation and maintenance of the completed components and it cannot be said that the posts are not available. Under these circumstances and with view not to comply with the obligations imposed upon them to transfer the Petitioners along with the completed components, a novel device was sought under which the components were formally transferred to the Bhakra-Beas Management Board and simultaneously Bhakra-Beas Management Board gave a job order to the Beas Construction Board to carry on operation and maintenance of the completed components on behalf of the Bhakra-Beas Management Board. Such instances were brought to the notice of this Hon''ble Court in the main wirt petition, being Annexure XI at page 410 in the brief. The instruction issued to the Superintending Engineer by the Bhakra Beas Management Board is as follows:

''You will also only formally take over the works and then handover back to Shri N.K. Arora, who is also earmarked to B.B.M.B.''

Various job orders issued by the B.B.M.B. to Beas Construction Project have been brought to the notice of this Hon''ble Court which show that the Beas Construction Board would carry out the operation and maintenance and repair of the completed components at the expense of the B.B.M.B. Annexed are four such orders collectively marked as Annexure X.

In para 24 the Petitioners again alleged that the vacancies exist in the B.B.M.B. and the posts have to be filled by the B.B.M.B. They also allege that though legally the deputationists have no right to hold the posts in the B.B.M.B. or in the Beas Project in preference to the Petitioners, in equity as well, their claim to the posts is far inferior to the claim of the Petitioners. It is alleged that the deputationists are now agitating for their being returned to their parent posts.

In para 25 it is alleged that the States of Punjab, Haryana and Rajasthan are themselves in need of a large number of Assistant Engineers and Sectional Officers and in those States a large number of such posts are being filled up and/or are under advertisement. The officers of the said States functioning on deputation with Beas Project are themselves keen to go back to their parent States. Such deputationists have no rights to hold the posts under the Central Government to which the Petitioners are entitled. There is no clash of interest between the deputationists and the direct recruits such as the Petitioners. Inspite of all these, the Respondents wish to force thedeputationist to remain on deputation and/or accept appointment with B.B.M.B. with consequence that the Petitioners may have to be retrenched or their services terminated. The actions of the Respondents are clearly mala-fide and the sole intention is to get rid of the Petitioners somehow or the other. The policy followed by the Respondents is arbitrary and detrimental to both direct recruits and the'' deputationists. The direct recruits are faced with imminent retrenchment while the deputationists were compelled to remain in the project even against their wishes.

In para 28, the Petitioners have given instance of Shri Ashok Sanghi (Petitioner No. 1 in C.W.P. No. 565) and it is alleged that he was not being transferred to B.B.M.B. and continues to be in B.C.B. the effect is that the construction activities of Beas Project are already completed and merely on the strength of job orders the said B.C.B. had been continuing te mporarily. All persons presently employed in B.C.B. are engaged in the operation and maintenance activities.

The grounds for quashing the orders are mentioned in para 31 of the petition and these are similar to the various allegations made in the aforesaid paras.

A perusal of this writ petition reveals that the grounds/ objections raised by the Petitioners and the prayer for quashing of the various Orders and issuance of the directions are similar to the objections/grounds and the prayers which were claimed in C.W.P. No. 565 of 1979.

In para 5 (xii) of this writ petition, the Petitioners alleged that the Respondents were out to harm the interest of the Petitioners in an unlawful manner and a fast unto death agi tation was started on 2-12-1980. The Petitioners through their representatives, represented to the Hon''blr Prime Minister who directed the Union Ministry of State for Energy to exa mine the legal status of the employees of the Beas Project. After negotiations it was settled that the legal issue shall be referred to the Union Ministry of Law for obtaining the opi nion of the Attorney General of India. Further negotiations were also held and the Union Ministry of Energy referred the legal issue as per terms of settlement to the Union Law Ministry on 13-2-1980. The Respondents out of prejudice took illegal decision of shunting out the Petitioners en-bloc from the B.B.M.B and treat all the posts presently occupied by the Petitioners in quasi-permanent capacity as vacant and draw temporary/officiating employees from the States of Punjab, Haryana and Rajasthan on deputation. The orders under challenge were issued mala fide.

In para 7 of the petition they have taken the various grounds and have raised similar objections which were raised in C.W.P. No. 565 of 1979.

The Respondents in their reply affidavit have raised preliminary objections stating that the future prospects of the Petitioners in B.B.M.B. were pending decision with the Central Government and the petition was pre-mature. They have also alleged that the petition is barred on the principles of constructive res judicata and the Petitioners have no cause of action. It is alleged that the Petitioners were directly recruited employees of the B.C.B. under the Central Civil Services (Temporary Service) Rules and were assigned the job in B.B.M.B. temporarily, on the basis of the job orders issued by the B.B.M.B. to B.C.B., but actually B.C.B. remained their employer. The service books of the Petitioners were being maintained by the B.C.B.

By an order dated 14-8-1984 passed by a Division Bench of the Delhi High Court in C.W.P. Nos. 2527/83 and 553/84 (Annexure A-1) filed with CMP. No. 2285 of 1984, the two writ petitions were dismissed in limine and it was held:

The declaration of the Petitioners as quasi-permanent employees is not to make any difference because if the posts themselves are abolished then even quasi-permanent servants cannot claim that they must continue in the post. Indeed even permanent government servants cannot claim that they should continue if the posts themselves are abolished.

It is further held:

The Petitioners cannot claim transfer of their employment from one body to Anr. as of right and that according to the policy of the Government of India, the Petitioners are being transferred to the post from where as many as possible may be absorbed, but they cannot claim their absorption as of right.

It was further held:

The rules 7 and 4 of the Temporary Services Rules cannot apply to the Petitioners because the Petitioners'' case was a case of fresh appointment under the benevolent policy followed for absorption of the people who were otherwise going to be retrenched. Such an offer cannot be interpreted as transfer from one post to Anr. .

It was also observed that the terminal benefits were offered to the Petitioners. Special Leave Petitions (Civil No. 9680-81/84 of 1984) were filed by the Petitioners in the Supreme Court against this order but the same were also dismissed on 29-8-1984 (Copy Annexure A with C.M.P. No. 2285 of 1983).

In Daryao and Others Vs. The State of U.P. and Others, it was held that the rule of res judicata is not merely a technical rule but is based on public policy and the same can be invoked aaginst a Petitioner under Articles 32 and 226 of the Constitution of India. The rule of res Judicata is founded on consideration of public policy. It is in the interest of the public at large that a finality should attach to the binding decision pronounced by Courts of competent jurisdiction and it is also in the public interest that the individuals should not be wexed twice over with the same kind of litigation. If these two principles form the foundation of the general rule of res judicata they cannot be treated as irrelevant or inadmissible even in dealing with fundamental rights in petitions filed under Article 32. Relying upon the observations of Sir William B. Hale in the leading Duchess of Kingston''s case, 2 Smith Lead Cas. 13th Ed. pp. 644, 645 and the Halsbury''s Laws of England, it was observed that the argument that res judicata is a technical rule and as such is irrelevant in dealing with petitions under Article 32 cannot be accepted. It was further held that on general consideration of public policy there seems to be no reason why the rule of res judicata should be treated as inadmissible or irrelevant in dealing with petitions filed under Article 32 of the Constitution of India. The Hon''ble Judges further observed in para 15 of the judgment as follows:

The scope of the writs, orders or directions which the High Court can issue in appropriate cases under Article 226 is concurrent with the scope of similar writs, orders or directions which may be issued by this Court under Article 32. The cause of action for the two applications would be the same. It is the assertion of the existence of a fundamental right and its illegal contravention in both cases and the relief claimed in both the cases is also of the same character. Article 226 confers jurisdiction on the High Court to entertain a suitable writ petition, whereas Article 32 provides for moving this Court for a similar writ petition for the same purpose. Therefore, the argument that a petition under Article 32 cannot be entertained by a High Court under Article 226 is without any substance; and so the plea that the judgment of the High Court cannot be treated as resjudicata on the ground that it cannot entertain a petition under Article 32 must be rejected.

In para 18 it is again observed:

Thus considered there can be no doubt that if a writ . petition filed by a party has been dismissed, on the merits by the High Court the judgment thus pronounced is binding between the parties and it cannot be circumvented or by-passed by his taking recourse to Article 32 of the Constitution. Therefore, we are not satisfied that the ground of alternative remedies is well founded.

Finally, in para 19, it was held as under:

We hold that if a writ petition filed by a party under Article 225 is considered on the merits as a contested matter and is dismissed the decision thus pronounced, would continue bind the parties unless it is otherwise modified or reversed by appeal or other appropriate proceedings permissible under the Constitution. It would not be open to a party to ignore the said judgment and move this Court under Article 32 by an original petition made on the same facts and for obtaining the same or similar orders or writs.

In 1968 SLR 826 (Union of India v. Nanak Singh), it was held that if two grounds are urged in a writ petition and the petition is dismissed on one ground but no decision given on the second ground, the judgment still operates as res judicata because the dismissal of the petition would operate as res judicata on both the grounds on which it was founded.

The legal position, therefore, is that if the Petitioners had taken the various grounds in O.W.P. No. 565 of 1979 deci-ded on 29-8-1979 by the Supreme Court, then they are precluded on the principles of res judicata to take such grounds in the present writ petition.

I have mentioned the various paras 20 to 25 and 28 of the previous writ petition No. 565 of 1979, and after comparison of these averments with the averments which have been made in the present writ petition. I find that the allegations and the grounds of attack by the Petitioners are similar and are based upon the same grounds.

The Supreme Court in Jaswant Singh''s case (supra) has clearly held that the Petitioners are employees of the Central Government, but at the same time the prayer of the Petitioners that a direction be issued to the Respondents to issue certificates to them to the effect that they are quasi-permanent employees in terms of Central Civil Services (Temporary Service) Rules, 1965 cannot be allowed to them by the Court and that such a benefit of the declaration of the status of quasi-permanency can only be allowed to the Petitioners by the employer and the case of the Petitioners can be considered if they make any such representation to their employer. If the Petitioners are entitled to the benefit of any of the rules of Central Civil Services (Temporary Service) Rules, 1965 and they are at liberty to make representations in that behalf to the appropriate authorities. It is further observed that the Petitioners had no right to be transferred to the services of the B.B.M.B. and their retrenchment did not offend against the guarantee of equality contained in Articles 14 and 16 of the Constitution of India. In para 40 of the judgment, the assurance given by the learned Solicitor General is quoted and the Hon''ble Judges observed that this assurance would be fulfilled while making appointment to the posts in the B.B.M.B.

Thus, according to the judgment in Jaswant Singh (supra), the Petitioners have no right to ''be transferred to B.B.M.B. This writ petition is barred on the principles of res judicata.

The various orders mentioned that the Petitioners had only been allowed to work in the B.B.M.B. ma stop-gap arrangement and the expenditure was being charged from the B.C.B. It is also evident thatthe Petitioners remained upon the cadre strength of the B.C.B. who was complying with the work under job orders issued to it by the B.B.M.B. In such circumstances, it cannot be said that the services of the Petitioners were transferred to B.B.M.B. or that the B.B.M.B. accepted the Petitioners as its employees.

In 1973 (1) SLR 946, (Manager M/s Pyarchand Kesarimal Porwal Bidi Factory v. Onkar Laxman Thenge), it has been observed by the Supreme Court in para No. 7:

The general rule in respect of relationship of master and servant is that a subsisting contract of service with one master is a bar to service with any other master unless the contract otherwise provides or master consents. A contract of employment involving personal service is incapable of transfer. Thus, where a businessman joins a partnership firm and takes his personal staff with him into the firm his staff cannot be made the staff of the firm without the consent of the other partners, [of Mersey Docks and Harbour Board v. Conggins and Griffith (Liverpool Ltd.).

Again in para 8 it is observed as follows :

A contract of service being thus incapable of transfer unilaterally, such a transfer of service from one employer to Anr. can only be effected by a tripartite agreement between the employer, the employee and the third party, the effect of which would be to terminate the original contract of service by mutual consent and to mal:e a new contract between the employee and the third party. Therefore, so long as the contract of service is not terminated, a new contract is not made as aforesaid and the employee continues to be in the employment of the employer. Therefore, when an employer orders him to do a certain work for Anr. person, the employee still continues to be in his employment. The only thing that happens in such a case is that he carries out the orders of master. The employee has the right to claim his wages from the employer and not from the third party to whom his services are lent or hired. It may be that such third party may pay his wages during the time that he has hired his services, but that is because of his agreement with the employer. That does not preclude the employee from claiming his wages from the employer. The hirer may also exercise control and direction in the doing of the things for which he is hired or even the manner in which it is to be done. But if the employee fails to carry out his directions he cannot dismiss him and can only complain to the employer. The right of dismissal vests in the employer.

In 1975 (2) SLR 856. (J.N. Sirkek v. Union of India and Ors.), a Division Bench of this Court while dealing with the case of transfer/absorption of an employee from one employer to the other observed as follows:

There could not be any unilateral absorption. It requires a tripartite agreement, unless all the three parties, i.e. the Himachal Pradesh Administration, the Council and the employee agrees there could not be any order of absorption.

A contract involving personal service is incapable of being transferred unilaterally. Except in case of statutory provision to the contrary, right to the. service of the employee cannot be the subject matter of a transfer by employer to a third party without employee''s consent. It can be effected by a tripartite agreement between the employer, the employee and the third party, the effect of which would be to terminate the original contract of service by mutual consent and to make a new contract between the employees and the third party.

In the present case, there is no tripartite agreement between the B.C.B., B.B.M.B. and the Petitioners and there is also no statutory provision with respect to the transfer of the Petitioners from the B.C.B. to the B.B.M.B.

The Supreme Court in case of Jaswant Singh and Ors. (supra) in para 15 of the judgment has held that the Petitioners had no right to be transferred to the B.B.M.B. along with the completed components.

The learned Counsel for the Petitioners contended that the Petitioners were absorbed in the B.B.M.B. which was limb of the Central Government for the reasons that it has to comply with such directions as may from time to time be given by the Central Government and the B.B.M.B. was not a Corporation.

This contention requires no decision in the facts and circumstances of the present case because the Petitioners were not transferred to B.B.M.B. and were never accepted by the B.B.M.B. as their employees.

It was further contended that the job orders issued by the B.B.M.B. to the B.C.B. were a camouflage and actually the Petitioners stood transferred to B.B.M.B. A reference was made to the various orders available from pages 93 to 113 of the paper book (Annexure V). Through these orders some transfers of the Petitioners were effected by the B.B.M.B. authorities. Similarly, at pages 114 to 127 (Annexure III) orders were issued by the B.C.B. authorities and the Petitioners were temporarily attached to B.B:M.B. but they were to remain on the strength of B.C.B. The contention of tbe learned Counsel for the Petitioners was that some components had already been transferred to B.B.M.B. from B.C.B. but thetrans-for orders were being issued by the B.C.B. authorities and thereafter by the B.B.M.B. authorities. From these facts, it was proved that the services of the Petitioners had been transferred to B.B.M.B. and the B.B.M.B. had accepted the Petitioners as their employees because they were working under them. The actual control and supervision of the Petitioners was with B.B.M.B. authorities.

52 This contention of the Petitioners counsel cannot be accepted in view of the fact that the B.C.B. was meant for the construction work (including the completion of any work already commenced) of the Beas Project while the B.B.M.B. was meant for administration, maintenance and operation of the works mentioned in Section 79 of the Act. Some of the components of the B.C.B. were transferred to B.B.M.B. and the staff with the B.B.M.B. was inadequate, therefore, it become necessary for the B.B.M.B. authorities to get their work done from some persons. Because of the stay orders issued from the Supreme Court and to avoid any complications, the B.B.M.B. authorities instead of employing and absorbing persons in their department requested the B.C.B. authorities to execute their works on the basis of job orders. In this manner, the B.C.B. authorities got the works of the B.B.M.B. authorities executed under job orders through the Petitioners. The lien of services of the Petitioners in the B.C.B. never came to an end and they continued to be the employees of B.C.B. although they were asked to work in the B.B.M.B. under the job orders.

The services of the Petitioners were never transferred to the B.B.M.B. and in view of the Supreme Court judgment in case of Jaswant Singh (supra) they cannot claim any right of being transferred to B.B.M.B. department. Hence it cannot be said that they become employees of the Central Government simply for the reason that they have been working for the B.B.M.B. Department on the basis of job orders and the Central Civil Services (Temporary Services) Rules, 1965 cannot be made applicable in the case of the Petitioners.

The B.C.B. employees have been considered to be the employees of the Central Government but they have no right to be transferred to B.B.M.B. along with the transfer of the completed; components of B;C.B. the Petitioners (who are que sipermanent employees of the B.C.B.) cannot claim that they have become employees of the B.B.M.B. The B.O.B. will remain the appointing authority. The Petitioners are still being paid their salaries by the B.C.B. who is working on the basis of job orders issued by the B.B.M.B. and the services of the Petitioners have been temporarily loaned to B.B.M.B. No order of appointment to the Petitioners was ever issued by the B.B.M.B. authorities. The simple fact that some orders of postings of the Petitioners, were issued by the B.B.M.B. authorities does not prove that they were appointed by the B.B.M.B. authorities. Such posting orders were issued by the B.B.M.B. authorities in pursuance to the orders issued by the B.C.B. authorities because the B.C.B. authorities had'' temporarily loaned the services of the Petitioners to the B.B.M.B. authorities. Hence the relationship of employer and employee between the B.C.B. authorities and the Petitioners did not come to an end and the Petitioners did not become the employees of B.B.M.B.

Further the powers regarding appointment of staff to the B.C.B. and the B.B.M.B. are separately given in Sec tions 79 and 80 of the Act. Section 79(4) empowers the B.B.M.B. to appoint such staff as it may deem necessary for the discharge of its functions while Section 80(3) gives separate powers to the B.C.B. to employ such staff as may be deemed necessary for its efficient working.

The Petitioners filed the present writ petition on June 8, 1981. They had already filed C.W.P. No. 565 of 1979 in the Supreme Court which was decided on 29-8-1979. The Petitioners did not mention the facts that they were the Petitioners in C.W.P.No. 565 of 1979. The Petitioners had also moved the Delhi High Court in C.W.P. No. 2527/83 and G.W.P. No. 553 of 1984 which were dismissed in limine on 14-8-1984 by a Division Bench and the Special Leave petitions in the Supreme Court were also dismissed on 29-8-1984. The Petitioners, however, did not mention these facts in the present writ petition. They have tried to suppress and conceal the factual position and are not coming to Court with clean hands. In such circumstances, they are not entitled to the discretionary relief by invoking the writ juris diction.

It was also brought to my notice that after the decision rendered in Jaswant Singh''s case (supra) the circumstances have changed and the Government has reconsidered the matter at higher level. The Central Government has taken a decision and. is implementing the same so that the Petitioners who are in the surplus pool are absorbed and no monetary loss is caused to them. I was informed that some of the Petitioners have already been absorbed in various posts. Thus, due to the change in the circumstances, after the decision in case of Jaswant Singh (supra) the Petitioners are also not entitled to the relief prayed for.

There is also a technical defect in the present petition. The main grievance of the Petitioners is that the employees of the States of Punjab, Haryana and Rajasthan may not be taken in the B.B.M.B. and these posts be filled from amongst the Petitioners. The Petitioners have not impleaded the States of Punjab, Haryana and Rajasthan as Respondents in the present writ petition and the present decision is likely to affect the employees of these States. In the absence of these parties, the present writ petition is not maintainable and is liable to be dismissed.

In view of the above discussion, the Petitioners are not entitled to any of the reliefs claimed by them and their petition is accordingly dismissed. Keeping in view the circumstances of the case, I leave the parties to bear their own costs.