ARINDAM SINHA,J. - (1.) Affidavits are filed. Controversy between parties in comprehension of Court, stands recorded in order dated 10th January, 2018. Relevant portion is reproduced below:- "Petitioners seek parity in dating back their dates of appointments to be the same as that of three persons who were recruited along with them in the same recruitment process. Mr. Roy learned Advocate appears on behalf of the petitioners and submits, his clients participated in the recruitment process advertised on 20th June, 2002, which advertisement said, inter alia, as follows: "Group "D" (Unskilled) Bearer/Masalchi/Cleaner on contract basis for a period of 3 years (renewable every year) @ Rs. 4100/- p.m. (consolidated)." Mr. Roy Submits, the petitioner no.1 was requested to report for written test by letter dated 7th September 2002 pursuant to his application against the said advertisement. One of the persons, with whom parity is sought was also so requested on even date. They were so requested on their applications pursuant to the said advertisement. He submits further that parity for the petitioners would mean they would be entitled to the same pension scheme as under which the said three persons are covered. He submits, the petitioners came to know about this, according to him, discrimination and immediately moved the authorities and then this Court. Pursuant to order dated 9th October, 2015 for consideration, the petitioners' grievance was considered and disposed of by order dated 6th June, 2016. It would appear from the said order, impugned herein, the purported finding was that the letters of appointment of the said persons reveal that the said persons were 'PRE-HMC' staffs as apparent from their distinct numbers appearing therein whereas the letters of appointments of fresh recruitees hold registration numbers designated under the selection procedure. He submits, the petitioners sought information in that regard and obtained list of candidates who appeared in the examination pursuant to the said advertisement. Such list gives the particulars of registration numbers of the petitioners as well as the said three persons. Mr. Majumdar, learned Advocate appears on behalf of the respondents. He submits, these three persons were appointed by Hall Management Council so when later regularised as employees of the institute along with the petitioners, were regularized from an earlier date. He submits, this is a stale claim of the petitioners. He submits further, the writ petition is maintainable against the institute. He seeks direction for filing affidavit. This is the second writ petition of the petitioners. The stale claim argument is appealing. The respondents will be heard on other contentions on the adjourned date."
(2.) Mr. Majumdar refers to paragraphs 7, 9 and 10 of affidavit-in-opposition filed on behalf of respondent no. 1. His two points are firstly, this writ petition is maintainable as relief sought is against respondent Hall Management Committee (HMC) which is distinct and different from respondent no.1 being Indian Institute of Technology (Kharagpur). HMC is 'other authority' within Article 12 of Constitution of India. Though petitioners had filed earlier writ petition where there was omission on part of his client to urge this point, it being a point of law there is no bar for same being raised in this writ petition. He submits secondly, there is distinction on facts between the three persons and petitioners as has been pleaded in paragraph 9 of the affidavit. Appointment letters to the three persons were issued at their addresses in HMC as existing employees while appointment letters of petitioners were sent to their respective addresses since they were contractual employees.
(3.) Petitioners had approached this Court by earlier writ petition being WP 28376 (W) of 2014. On query from Court it has been ascertained that petitioners and respondents in that writ petition are the same as in this writ petition. Contention of respondent no. 1 that HMC is the respondent on whom direction is sought by petitioners could have been raised in earlier writ petition. Omission on part of said respondent to have raised such contention clearly attracts bar of res judicata under section 11 of Code of Civil Procedure, 1908 read with Explanation IV thereunder. Mr. Ray had pointed out, pursuant to order dated 9th October, 2015 disposing of his clients' earlier writ petition, Registrar of the Institute had rejected contention of his clients for being regularized with effect from November, 2002 on parity with the three persons.;