JUDGMENT
R.L. Anand, J.
1. Shri Bharat Krishan Sahni has filed the present writ petition under Articles 226/227 of the Constitution of India against Bhakra Beas Management Board, through its Chairman (hereinafter called “the Board”), and it has been prayed by the petitioner that a writ in the nature of certiorari be issued and that the joint seniority list prepared by the Board, Annexure P-3, be declared as wrong, illegal, without jurisdiction, arbitrary and unconstitutional.
2. The case set up by the petitioner is that he joined the service with the Board with effect from 14.12.1972 as Junior Draftsman. He was promoted as Draftsman on 31.7.1984 and was also promoted as Head Draftsman with effect from 14.11.1996. The petitioner passed out Board’s Subordinate Engineers’ Examination in January, 1997 and as such he is eligible for promotion as Class II (SDE). By virtue of Section 79 sub-clause (4) of the Punjab Re- organisation Act, 1966, the Board has been empowered to employee such staff as may be considered necessary for the efficient discharge of its functioning.
3. The grouse of the petitioner is that Section 79 of the Punjab Re- organization Act, 1966 nowhere provides or imposes any obligation upon the Board to call employees of the States of Punjab, Haryana or any other State having share in the water and electricity generated through the various projects under the Board. It is further the grouse of the petitioner that’ except regular employees of the Board, the employees on deputation from the States of Punjab, Haryana are working in the Board. There are Ex-Central Government employees and they have been treated as fresh appointees. Virtually they are on deputation. Since
they have not born in the Board, therefore, they cannot equate in the matter of seniority vis-a-vis those employees who were appointed in the Board on regular basis as Junior Draftsman Draftsman or Divisional Head Draftsman. The Board has prepared a joint seniority list of deputationists, regular employees and ex-central Government employees by giving them separate status which is wrong, illegal, without jurisdiction, arbitrary and unconstitutional. The deputationists cannot be given preference over the regular employees and by treating them at par with regular employees, this action of the Board is illegal.
4. In short, the stand of the petitioner, is that in the joint seniority list, the employees of the Government of Haryana, Punjab and Ex-Central employees have been considered as equals with that of the petitioner who was borne in the cadre of the Board and since the cadre of the petitioner is a class in itself, therefore, he cannot be considered equal with that of those employees who are on deputation with the Board and there cannot be a joint seniority list inter se vis-a-vis them. Resultantly, the joint seniority prepared by the respondents Annexure P-3, should be quashed.
5. The notice of the writ petition was given to the respondents. A preliminary objection was taken that the petition suffers from the vice of non-joinder of necessary parties and deserves dismissal on the short ground. All those employees who have been given ad hoc promotion so far and who are born on joint seniority list have not been impleaded as party by the petitioner. Their rights are likely to be affected. Therefore, the writ is liable to be dismissed on that ground.
6. On merits, the stand of the Board is that it was constituted by the Central Government. As per the provision of Section 79 of the Punjab Reorganisation Act, it is empowered to employ such staff as deems necessary for efficient discharge of its functioning. The States of Punjab, Haryana and Himachal Pradesh are the beneficiaries and they are under obligation to provide necessary funds to the Board to meet all expenses. The partner States are directly interested in the posting of their own employees in the Board. The Board has framed statutory regulations vis-a-vis Class-III and Class- IV employees and according to these regulations, 67% of the vacancies of Class- III and Class-IV are to be notified by the beneficiary partners. Whenever partner States are not in a position to supply the requisite suitable staff, the vacant posts are filled up by making the appointment by direct recruitment/promotions in accordance with the regulations. The Board does not have its own cadre of Class-I and Class II, and therefore, it draws the officers from the beneficiary partner States and when a partner is not in a position to provide requisite number of the officials in a particular category, the promotion are made by the Board from the eligible candidates of Class III. Since the employees drawn from different sourcs besides its own direct recruited employees in the rank of Junior Engineers and drawing staff working in the Board, a rational policy has been adopted for their ad hoc pro-
motion as S.D.O. by considering the length of service of all such employees in their respective categories/cadres so that no discriminatory treatement is meted out to any class of employees in the same organization. The petitioner’s eligibility for giving ad hoc promotion can only be considered as per the criteria adopted by the Board following the rules applicable in the Punjab State Irrigation Department. As per the joint seniority list, framed by the respondent-Board the name of the petitioner does not fall in the zone of promotion, therefore, he is not eligible for promotion as S.D.O. on ad hoc basis at this stage. Thus, the stand of the respondents in short in that the staff of the Board is taken on transfer from the partner States and when they are on transfer they will be considered as the employees of the Board from the dates of their respective postings and for the purpose of further promotion they adopt the rules of the Punjab Government dated 23.4.1992 which has fixed the percentage for appointment to the Punjab Service of Engineers Class II. By adopting that percentage the joint seniority has been prepared vide which the claim of the petitioner for promotion to the post of S.D.O. is not made out.
7. A rejoinder was filed by the petitioner in which he reiterated his allegations of the writ petition by denying those of the written statement.
8. I have heard Shri Raman Sharma, learned counsel appearing on behalf of the petitioner and Shri N.S. Bawa, learned counsel appearing on behalf of the Board and with their assistance have gone through the record of this case.
9. This case has peculiar facts. B.B.M.B. had no staff of its own in the beginning. This Board was assigned the task of management of certain projects for the purpose of distribution of water and electricity. The mam beneficiaries of this Board are four States i.e. Himachal Pradesh, Rajasthan, Punjab and Haryana. Still, this Board has to be managed. The partner States used to provide the staff at all levels and at all cadres. The officers/officials working with the Board are not on deputation because they are not getting any deputation allowance. Their control is still with their respective States. So it can be said that they are not the regular employees of the Board but they have been transferred in the Board for the purpose of the work assigned to them for efficient running of the project.
10. On the contrary, the petitioner was a regular ap-pointeee and he joined the Board as Junior Draftsman. Thereafter, he was promoted as Draftman and also as Divisional Head Draftsman. He further passed out Subordinate Engineering Examination of the Baord and became eligible for promotion as Class-II i.e. S.D.E. In the opinion of this Court, the cadre of the petitioner is totally independent. He was born in the Board and constitutes a class in itself. He cannot be allowed to rub the shoulder in the matter of seniority with those officers/officials who have joined the Board on transfer or on deputation.
11. Learned counsel appearing on behalf of the re-
spondents submitted that the officers/officials are not on deputation. Rather they are on transfer. For all intents and purposes they are the employees of the Board from their respective dates of joining. Since the Board has not framed its own rules with regard to service conditions of Class-I and Class-II officers, therefore, the Board is adopting the rules of the State Government as applicable to the State of Punjab. These rules have been adopted so that there should not be any heart burning to the entire staff of the Board for the purpose of further promotion. The chances of further promotion have been worked out keeping in view the percentage as applicable to the State of Punjab vis-a-vis Class-II officers and since the petitioner has joined subsequently, therefore, in the joint seniority list, he has been placed below than that of those officers who joined the Board prior to him.
12. 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.
13. The learned counsel for the petitioner Shri Sharma has invited my attention to a decision of the Hon’ble D.B. of this court, dated 11.10.1995 passed in Civil Writ Petition No. 13I77 of 1992: 1996 (1) SCT 759 (P&H). Hussan Chand and others v.. Bhakra Beas Management Board and others and submitted that the petitioners of the said writ petition made a prayer that directions be issued to the Board that the regular employees of the Board, working in the B.B.M.B. be considered for promotion in the States of Punjab and Haryana respectively from the dates they had become eligible for the respective posts and this writ was declined by the Hon’ble D.B. by holding that the original employees of the Board cannot lay claim with regard to the posts of the States of the Punjab and Haryana by virtue of the fact that the petitioners constitute a separate class. How the Board now can constitute a similar class of the employees working on transfer with that of the original employees of the Board. There is a merit in the contention raised by the learned counsel for the petitioner. Joint seniority can always be formulated amongst two equals and not by making basis of the original cadre and the staff on transfer or on deputation. Yet, my attention was also invited to a decision of the Hon’ble D.B. dated 31.7.1996 passed in C. W.P. No. 3397 of 1996 where the petitioner made a prayer that he was entitled to regularisation or in the al-
ternative permanent absorption in the Board and his prayer was declined on the ground that petitioner held a Hen in the Punjab Slate Electricity Board and if it is so, he could be repatriated to his parent Department and could not seek absorption in the Board as he could not be considered an employee of two Boards at one time. Similarly, how the staff working with the Board can be considered the staff of two employers i.e. the Board and the parent States. Following the same ratio it can be said to the present facts 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.
14. I also repel the objections of the respondents that this writ should be dismissed on the ground of nonjoinder of necessary party because the petitioner has challenged Annexure P-3 an action of the Board vide which the joint seniority list of the Junior Engineer/Drawing Estt. prepared on the basis of the service particulars has been challenged.
15. Resultantly, the writ petition is allowed. A writ in the nature of certiorari is issued and the action of the respondent-Board in preparing the joint seniority list of the deputationists and regular employees of the Board is hereby quashed and the letter Annexure P-3 is also struck down. There is no order as to costs.
16. Petition allowed