PRASAD, J. - (1.) THE present writ petition has been filed impugning the orders dated 20. 4. 2001 and 17. 5. 2001 passed in O. A. No. 223/2000, O. A. No. 63/2001 and O. A. No. 117/2001 by the Central Administrative Tribunal, Jodhpur Bench, Jodhpur. THE petitioner is seeking a writ of mandamus or certiorari for setting aside the orders dt. 20. 4. 2001 and 17. 5. 2001. THE petitioner has further prayed that order dt. 10. 5. 2001 passed by respondent No. 2 thereby repatriating and reverting the petitioner to the post of Khalasi i. e. a lower grade to his parent Division i. e. Delhi Division be set aside. THE petitioner further prayed for direction to regularise him in the post of Clerk-cum-Typist from the date, he has been promoted in the said post on ad-hoc basis. THE petitioner has stated in the petition that following question of law arise for consideration for general public importance:- "a. Whether the petitioner is entitled to be regularised in class III of material checking clerk/office clerk in the scale of Rs. 950-1500 (RPS) revised to Rs. 3050-4500 (RPS) in which he is already continuing since more than 10 years and the statutory instructions of Railway Board also provides that the Railway Employees who have served regularly two years in the post should be regularised under 50% quota in the Division after having suitability test? B. Whether the petitioner's case comes within the ambit of the protective provisions in the Railway Board's statutory circular such a E (NG)/ii/81/rc-I dated 1. 4. 1986, E (NG)-I-73/pm- 1/222 dated 23. 2. 1974, E-55/pm-1-19-3 dated 11. 1. 1955, E (NG)-I- 105 dated 24. 4. 1979 and E (NG)-I-77-PM-1-177 dated 17. 10. 1977 which provides that no reversion from officiating service after completing 18 months should be made? C. Whether the petitioner is entitled to the benefit of the direction contained in the circular dated 10. 10. 2000 issued by the Railway Board?"
(2.) THE case of the petitioner is that he is entitled to the regularised in Class-III post of material checking clerk/office clerk in the scale of Rs. 950-1500 (RPS) revised to Rs. 3050-4500 (RPS) in which he is already continuing since more than ten years and statutory instructions of the Railway Board provide that Railway Employees who have served regularly two years in the post should be regularised under 50% quota in the Division after having suitability test. Further, the case of the petitioner is that his case comes within the ambit of the protective provisions in the Railway Board, statutory circular such as E (NG)/ii/81/rc-I dated 1. 4. 1986. The background of the controversy is that casual labours engaged in construction Division of Railways agitated their claim to be regularised in Construction Division. According to the petitioner, they were on deputation sent from Group-D to Group-C. The Railway Board from time to time has passed the orders whereby those who have worked in Group-C for a considerable period have been ordered to be absorbed in that situation and it is on the basis of this, the petitioner has claimed that he should be absorbed against a promotion quota fixed by the Railway Board Circulars. According to the petitioner, Railway Board issued instructions on 10. 10. 2000 and thereby increased promotion quota from 33 1/3% to 50% for promotion in Group-C from Group-D in Railways. This promotion quota has not been filed in from the persons of the category of the petitioners. Despite the fact that petitioner has applied for, he is being reverted to the post of Khalasi, he has not performed duties of that post for the last 12 years. The petitioner has also placed reliance on Rule 188 of the Railway Board's Rules wherein it has been provided that promotion to the lower grades in Group `c' should be wholly filled by promotion from Group D Railway servants who have put in 5 years service. In the case of posts which are in the normal avenue of promotion to Group `d' Railway servants, promotion should be made from amongst the Railway servants of the Department. According to the petitioner, he fulfills eligibility criteria, still he has not been considered by the respondents for promotion. The petitioner has thus prayed that order of the Central Administrative Tribunal dt. 17. 5. 2001 in O. A. No. 117/2001 be quashed and services of the petitioner be regularised in Group-C Post from the date he has been continuously working. The respondents have joined the issue and filed the reply. It has been contended that petitioner has raised question of regularisation earlier and regarding his clear prayers of regularisation, it has been observed in the order by the Central Administrative Tribunal, Jodhpur Bench, Jodhpur dt. 12. 10. 1988 in O. A. No. 35/98 thus:- "7. It would be seen from the above letter that persons who has completed three years of service as ad hoc MCCs were only to be regularised by their parent department. This letter dated 11/15. 2. 1991 does not form a policy. It is a one-time measure to regularise the services of ad hoc MCCS. It is admitted fact that the applicant was assigned the duties of Receipt Clerk only on 25. 3. 1992; therefore, in our opinion the letter dated 11/15. 2. 1991 cited above does not cover the case of the applicant. We, thus, find that the application is devoid of any merit and deserves to be dismissed. "
(3.) THE respondents have stated in their reply that successive applications have been filed by the petitioner at Jodhpur and Delhi and has obtained the orders against itself. Such successive applications are barred by principles of constructive res- judicata and therefore the present writ petition is not maintainable. THE respondents have also relied on an order passed by the Principal Bench of Central Administrative Tribunal on 8. 6. 2001 wherein it has been observed thus:- "as per Para 181 IREM Vo. I Gangmen have a regular channel of promotion as Keymen/mate lie as per Para 159 IREM Vol. I Khallasis have regular channel of promotion as Artisans Grade III in their own cadre in the Civil Engineering Dept. in P. Lourdsamy vs. Union of India & Ors AIslj 1998 (1) CAT 32, the CAT Bombay Bench has held that the contents of IREM which embodies administrative orders on the Railway Code, the rules and allied establishment matters issued by Railway Board from time to time have statutory force. 10. From this it would follow that applicants who held lien against Group `d' category of Khallasis and Gangmen in the Civil Engineering Dept. or respective divisions of the Railways can legally aspire for promotion only within their own cadres as Artisans Grade III and Keymen/mate respectively, and cannot claim promotion as Office Clerks under the 33 1/3 quota referred to above, as the same is available only to those Railway servants in Group D categories for whom no regular avenues of promotion exists. 11. THE question then arises whether persons such as applicants who hold lien against Group D posts of Khallasis/gangmen in the Civil Engineering Dept. or the respective division of the Railway, can be regularised in the construction organisation against posts of MCCs etc. to which they have been promoted on ad hoc basis and are continuing as such for long period of time. It must be remembered that the construction organisation has no cadre of its own, and the posts against which applicants have been promoted on ad hoc basis are work charged posts. No doubt applicants are continuing in these work charged posts to which they have been promoted on ad hoc basis for a considerable length of time, but the fact remains that these posts do not form part of any cadre and are work charged posts, created for a specific job of short duration, the expenditure on which is booked to a particular work estimate. THE fact that applicants have continued against work charged posts for a long period of time could be either because the work for which the post was created was not completed within the original time period, or because when one item of work concluded another item of work was taken up, which gave applicants a certain measure of continuity. Be that as it may, these posts in the Construction Organisation are entirely outside the cadre in which applicants hold a lien, and hence they have no enforceable legal right to compel respondents to regularise them in the Construction Organisation, merely because they are holding work charged posts in Construction Organisation since considerable lengths of time. In this connection we find that the Division Bench in its order dated 13. 7. 2000 itself has referred to the PNM Meeting on 8. 5. 97 at the level of General Manager, Northern Railway with URMU which decided that such of the staff who were continuously working for a period of three years or more as clerks on ad hoc basis may be regularised on the basis of their service records and viva voce, duly observing the extent instructions on the subject as a special case, not to be quoted as a precedent in future. It was further decided that if there were still more vacancies after regularising the said staff, such vacancies would be filled by the Divisions in which staff hold their lien. 12. We find that in compliance of the aforesaid PNM decision, a letter was issued on 5. 10. 89 to all Divisions to send the number of MCCs working in each Division/office on ad hoc basis for more than three years. THE Construction Organisation in its letter dated 17. 12. 90 addressed to G. M. Northern Railway stated that it too had MCCs who were working on ad hoc basis for more than three years and sought clarification as to what decision has been taken by G. M. Office in regard to regularisation of MCCs working in Construction Organisation, and whether the decision in the PNM meeting held on 8. 5. 97 would apply to those MCCs working in the Construction Organisation as well. 13. After considering the matter, the G. M. 's office letter dated 11/15. 2. 1991 clarified that MCCs working in Construction Organisation on ad hoc basis for more than three years would be regularised as such by their respective parent dept. where they hold lien i. e. from where they have been deputed to Construction Organisation. THEreupon Construction Organisation made a further reference by letter dated 24. 7. 91 for permission to hold selections for regularisation of Class IV Staff working as MCCs/clerk for more than three years at their own level but Construction Organisation was advised by letter dated 30. 6. 1991 that MCCs working on ad hoc basis in Construction Organisation but holding their lien in their own office/division could not be regularised in Construction Organisation and could be regularised only by their parent Division/office as and when their turn came in the concerned Division/office". The respondents have further claimed that another application no. 1606/2001 is pending before the Principal Bench of Central Administrative Tribunal seeking regularisation. The petitioner moved present application without making any reference of pendency of such application. Thus, the petitioner is guilty of making successive application for the the same relief. The respondents have further claimed that the petitioner is holding substantive post in group-D. The substantive post is Khalasi. Khalasi has avenue of advancement vide Railway Board's letter dt. 23. 3. 1988. The Hon'ble Supreme Court in the Special Leave Petition filed by the Union of India being SLP (C) No. 900/94 decided on 18. 8. 1994 has held thus:- "appointment to post of a Store Keeper/store Issuer/clerk is regulated by certain rules governing recruitment to the post in the Department. The respondent, if eligible, is entitled to be considered for the same along with all others who may be candidates for the appointment. That is the only correct way of filling these posts which would ensure equal opportunity in the matter of employment as required by Articles 14 & 16 of the Constitution of India to all eligible persons who are candidates for these posts. A direction like the one given by the Tribunal in favour of the respondent or any one like him has the effect of denying equal opportunity to the other eligible candidates by appointing a person not in accordance with the Rules. Any order for absorption and regularisation of a persons not appointed in accordance with the rules, given in the manner contained in the impugned order of the Tribunal would result in denial of equal opportunity in the matter of employment to the other eligible candidates for the public officer. Such a course must obviously be eschewed. The Tribunal's order is, therefore, set aside. We may, however, observe that the respondent would be entitled to be considered for appointment to the post of a Store-Keeper or clerk in accordance with his entitlement and in conformity with the rules applicable for appointment to the posts, subject to the conditions of eligibility prescribed for the post". The respondents have further stated that Principal Bench of Central Administrative Tribunal in Full Bench decision has held thus:- "4. Shri P. S. Mahendru, learned counsel has made a valiant attempt to submit that the aforesaid order of the Jodhpur Bench of the Tribunal dated 17. 5. 2001 does not raise bar of res- judicata in the present application. He has contended that more than one relief was claimed by the applicant in the Jodhpur Bench and accordingly. It is open to the applicant to challenge that very order in the present application, as he is raising certain other points. We are unable to agree with this contention, having regard to the facts and circumstances of this case. It is very clear that the applicant has challenged the same order, i. e. , the order passed by the Deputy Chief Engineer (C), Northern Railway, Jodhpur dated 10. 5. 2001 which is admittedly based on the office order No. 522 dated 9. 5. 2001 issued by the CAO/cont. /k. Gate, Delhi which has already been fully dealt with and decided by the Cordinate Bench of this Tribunal at Jodhpur Bench. It was also admitted during the hearing that the applicant is working at Jodhpur and is primarily aggrieved by the aforesaid order issued by the respondents at Jodhpur dated 10. 5. 2001. " "5. In the above fact and circumstances of the case, the present O. A. is not maintainable both on the ground of jurisdiction of the Principal Bench to hear this case coupled with the bar of principles of constructive res-judicata and res- judicata. No costs. " ;