DURBEEN SINGH Vs. UNION OF INDIA

JUDGEMENT

(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.

(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".