JUDGMENT
G. Ramakrishnan, Member (A)
1. This is an application under Section 19 of the Administrative Tribunals Act, 1985 against the non-consideration of the applicants’ recruitment against Group ‘D’ vacancy even though their counter parts-out of the same ‘common list–being considered by the respondents. The applicants sought the following reliefs:
(i) to issue an order, writ or direction in the nature of Mandamus commanding the respondents to consider the petitioners against the existing vacancies of the Chowkidars in the Grade of Rs. 750-940 in Group ‘D’ alongwith their other counterparts for permanent absorption.
(ii) To issue any other order, writ or direction, which this Hon’ble Tribunal may deem fit as per facts and circumstances of the case.
2. The facts as stated in the application are that the applicants were appointed as Chowkidars at Babina under Garrison Engineer during the year 1971 at the time of Indo-Pak War for guarding the buildings as the troops were in the border. They claim that they had worked for more than 240 days under the respondents at that time and that there were orders in their favour to consider them to regular appointment. The applicants further stated that they had filed an O.S. No. 773/1983 in the Civil Court, Jhansi, which was transferred to this Tribunal and registered as O. A. No. 697/(T) of 1986 (hereinafter referred to as TA No. 697/86)–Dhaniram and Ors v. Union of India and Ors. It is stated that on the respondents’ counsel’s request and commitment, the above TA was got dismissed by this Tribunal in 1986. The applicants further stated that another similar group of ex-Chowkidars, Balchandra and Others also filed a Civil Suit in the Civil Court, Jhansi and the same was also transferred to this Tribunal and was registered at TA No. 1523 of 1986 and according to the judgment of this TA which was delivered later in 1990, Balchandra and Others were
to be considered for regular absorption and they were also granted age relaxation. They stated that respondents had fixed 28.2.1997 for absorption/screening of Balchandra and Others and recruitment of outsiders and in that the applicants were not being considered inspite of their representation. According to the applicants, they, Balchandra and Others are similar and they not being considered would be hostile discrimination and breach of Articles 14 and 16 of the Constitution. Further the applicants claimed that the commitment of the respondents’ counsel in O.A. No. 697(T) of 1986 created a promissory estoppel and the respondents were bound by that commitment of their counsel and having regard specifically to para 4 of the judgment in that TA. Hence their prayer for the reliefs. On a prayer for interim relief, a direction was issued to allow the applicants for screening but the results were not to be declared till further directions of the Tribunal.
3. The respondents resisted the claim of the applicants. They contended that TA No. 697 of 1986 was not got dismissed by themselves but it was dismissed on merits by the Tribunal though there were certain observations made by the Tribunal and in view of these circumstances the present Original Application is barred by the principles of “res-judicata” and limitation. They stated that out of the 17 applicants 10 were uneducated, 7 were Vth Standard and above and were in the age group of 42 to 50 years in 1997 and as per the recruitment rules, for the post of Chowkidars minimum educational qualification is Class V passed and in case the applicants were provided employment their services in the department would be for a short period which would not be beneficial to the respondents. Further they stated that in the judgment of T.A. No. 1523 of 1986, there was no mention about any relaxation in recruitment age and educational qualifications required for recruitment of Chowkidars. They stated that the judgments of the Tribunal were binding in between the parties and, therefore, the applicants could not compare the contents of different judgments and seek relief. According to the respondents the Original Application was wholly misconceived and as liable to be rejected.
4. The applicants filed Rejoinder Affidavit wherein they reiterated the points mentioned in the Original Application. The respondents filed a Supplementary Counter Affidavit with reiteration of what was stated in the counter affidavit and also cited the judgments of the Hon’ble Supreme Court of India in support of their pleas.
5. We have heard the learned lawyers for the parties and also gave careful consideration to the rival pleadings and have also gone through the complete record.
6. Learned counsel for the applicants cited the judgments of the Ernakulam Bench of this Tribunal delivered on 27.9.1991 in OA No. 1026 of 1990 reported in (1992) 22 ATC 153 which held that persons employed without being sponsored by the Employment Exchange acquire a prescriptive right to regularisation with passage of time.
7. We have gone through the judgment given by this Tribunal in T.A. No. 697 of 1986 (Annexure A-1) decided on 23.12.1986. Paras 4 to 5 of this judgment–T.A. No. 697 of 1986, Dhani Ram and Ors. v. Union of India and Ors., are reproduced below:
“4. The learned counsel for the defendants admitted before us that there are
vacancies at the moment and there is a move on when the plaintiffs are going
to be considered for absorption but the authorities are waiting for the result
of this suit. It has not been pressed before us that there was any illegality in
the retrenchment of the plaintiffs at the end of their casual employment. The
employee has the inherent right to organise and arrange his business in the
manner that he considers best and he can also not be expected to carry on the
burden of the surpluses who become economic dead weight and therefore once the services of the plaintiffs were not required they had to be discharged and the process is not vitiated by consideration of victimisation of unfair labour practice. The retrenchment has not been challenged as being not bonafide. The employer is the sole judge to make appointment against his requirements of either regular vacancies or emergent requirements. We will not like to interfere in the normal process of recruitment or filling up of vacancies according to the requirements the defendants. We, however, find that some recruitment has been made by the Garrison Engineer, Babina by calling fresh applications from the Employment Exchange. The plaintiffs had earlier worked with the Department. They did seem to possess aright of being considered alongwith others, if not for being considered in preference. Unfortunately, this was not done. They have given an affidavit which has been mentioned in our judgment. We have no doubt that looking at the circumstances of the case the Department who has already collected information from the plaintiffs and who do have vacancies will give sympathetic consideration in the matter of appointment of the plaintiffs too.
“5. In the result we find no justification to accept the prayer made by the plaintiffs and the same is liable to be rejected. The suit is accordingly dismissed with no order as to costs.”
8. From a careful consideration of the above, we hold that the Tribunal had dismissed the Transferred Application on merits. The Tribunal had also made an observation, perhaps based on the statement of the learned counsel for the defendants that sympathetic consideration should be given to the plaintiffs in the matter of appointment. No preferential treatment to the applicants had been directed by the Tribunal. This judgment was delivered on 23.12.1986. Raising any issue connected with the above judgmentafter lOyears through the present OA is barred by limitation.
9. TA No. 1523 of 1986, Balchand and Ors. v. Union of Indiaand Ors., was decided on 4.12.1990. Paras 3 and 4 of the judgment are as following :
“3. We have heard Shri R.K. Nigam, learned counsel for the plaintiffs and Shri Ashok Mohiley, learned counsel for the defendants. Learned counsel for both the parties referred to earlier decision of this Bench in Registration TA No. 697 of 1986, Dhani Ram and Ors. v. Union of Indiaand Ors., where an exactly similar situation came up for consideration and it was found that the plaintiffs had no legal right to get any appointment to the post of Chowkidar. However, an observation was made that while calling fresh applications from the Employment Exchange, the Department might consider the case of the plaintiffs who had already served the Department for some time. Shri R.K. Nigam, learned counsel for the plaintiffs states that the present plaintiffs do not claim any arrear of salary nor any seniority, but they may be considered for appointment as Chowkidar afresh on the vacancies existing at present.
4. This case is disposed of with the observation that the plaintiffs’ case for fresh
appointment as Chowkidar may be considered by the respondents within a
period of 4 months from the date of receipt of the copy of this judgment
against the vacancies if existing in present, or against vacancies which may
arise in future, but the plaintiffs shall not be entitled for any arrears of salary
or any seniority, in preference to those who are already in employment. Parties shall bear their own costs.
10. After going through the judgment of the two Transferred Applications viz; T.A. No. 697 of 1986 and T.A. No. 1523 of 1986, we are of the view that the two are different, whereas the first one was dismissed the second one was disposed of with certain directions on the plea of violation of Article 14 of the Constitution, The applicants by the present OA (who are also applicants in T.A. No. 697 of 1986) are agitating the same matter on the basis of a subsequent judgment of this Tribunal, after lapse of 10 years of the judgment and after more than six years of the second judgment. In the second judgment no age relaxation for recruitment had been given as claimed by the applicants. The respondents contended and their learned counsel argued that the findings of the judgment of the Tribunal are binding inter se parties and the applicants had not filed an appeal in the Supreme Court against the judgment and the Review Application filed in T.A. No. 697 of 1986 was dismissed. We find merit in this argument. We hold that when a dispute between the two parties had been adjudicated by this Tribunal, and an order had been passed, the same can be further agitated by either party only in accordance with law and filing a fresh O. A. for the same relief on the same facts and premises except for a subsequent decision of this Tribunal (given after more than 4 years) is not permissible as by this method no dispute will reach a finality.
11. Respondents who had screened the applicants as per the interim orders of this Tribunal have stated that the applicants were between 42 and 50 years and 10 of them are uneducated and 7 are Vth Class or above. They stated that Chowkidars under the respondents are required to be recruited as per the Recruitment Rules and no relaxation in Recruitment Rules with regard to age or educational qualifications can be given as held by the Hon’ble Supreme Court in the following cases:
(i) M.A. Hague and Ors. v. UOI and Ors., 1993 SCC (L&S) 412=1993(3) SLJ 64 (SC). (ii) Ahmedabad Municipal Corporation v. Virendra Kumar Jayantibhai Patel, 1997 JT (VII) SC 14. (iii) Ashok Kumar and Ors. v. Chairman Banking Services Recruitment Boardand Ors., AIR 1996 SC 976.
12. Further the respondents stated that the applicants were working on daily wages and daily wage employees have no right to the posts as held by the Hon’ble Supreme Court in the case of Himanshu Kumar Vidyarthi and Ors. v. State of Biharand Ors., reported in 1997 SCC (L&S) 1079. Our attention was also drawn to the judgment of this Bench of the Tribunal dismissing the O.A. No. 880 of 1991 where another group of Chowkidars engaged in 1971 under the respondents were the applicants.
13. In the case of M.A. Haque and Ors. v. UOI and Ors. the Apex Court had held that Recruitment Rules made under Article 309 have to be followed strictly and not in breach. We find from the judgments delivered in either TA No. 697 of 1986 or TA No. 1523 of 1986 that no directions were issued for relaxation of recruitment rules.
14. In the second case, Ahmedabad Municipal Corporation v. Virendra Kumar Jayantibhai Patel, the Apex Court had held that, “Once the consideration of equity in the face of statutory rule is accepted then eligible and qualified persons would be sufferers as they would not get any chance to be considered for appointment. The result would be that persons lesser in merit would get preference in the matter of appointment merely on the ground of equity and compassion. It is, therefore, not safe to bend the arms of law only for
adjusting equity.”
15. In the third case–Ashok Kumar and Ors. v. Chairman Bombay Service Recruitment Boardand Ors., the Apex Court reluctantly refused to grant any relief to the appellant No. 3 in that case and held that “Articles 14 and 16 of the Constitution enshrine Fundamental Right to every citizen to claim consideration for appointment to a post under the State. Therefore, appointment of the persons kept in the waiting list by the respective Recruitment Boards to the vacancies that had arisen subsequently without notifying them for recruitment is unconstitutional.”
16. The Hon’ble Supreme Court in UOI and Anr. v. Motilaland Ors., reported in (1996) 33 ATC 304, held that casual labours become en titled to only those rights which are laid down by rules. No rules or orders have been shown by the applicants from which the relief sought for are flowing.
17. In another case reported in AIR 1997 SC 1565, the Apex Court had held that, “It is seen that the project in which the respondents were engaged had come to an end and that, therefore, they have necessarily been terminated for want of work. The Court cannot give any direction to re-engage them in any other work or appoint them against existing vacancies. Otherwise, the judicial process would become other mode of recruitment de-hors the rules.” .
18. In the light of the law laid down by the Apex Court as brought out above, it will not be appropriate for this Tribunal to give any direction to the respondents to consider the applicants who had worked for less than a year in 1971 as casual labour for appointment under the respondents.
19. In the light of the detailed analysis given in the foregoing paragraphs the applicants cannot be granted the reliefs claimed. The O.A. is, therefore, dismissed. There shall be no order as to costs and the interim orders issued stand vacated.