JUDGMENT
P.K. Misra, J.
1. The present writ petition has been filed by the State Government against the order of the State Administrative Tribunal in O.A.No.9356 of 1998 dated 2.2.2001, directing that the present contesting respondents 1 to 8 shall be absorbed in the existing vacancies.
2. The facts giving rise to the present writ petition are as follows :-
In the Secretariat of the State Government, if three permanent office assistants were absent in a day, one mazdoor would be appointed in their place and if five office assistants were absent, two mazdoors would be appointed from the list maintained in each department of the Secretariat. Minimum qualification to be appointed as mazdoor was pass in VIII Standard and a particular age limit was prescribed. The present respondents 1 to 8, who had the necessary qualification, worked as mazdoors in various Departments of the Secretariat having joined as such on various dates during the years 1987 to 1989. While the matter stood thus, the Government issued Letter No.13840/89-8 dated 5.3.1991 providing that mazdoors on daily wages should be recruited only through employment exchange and mazdoors, who are already working in various Departments, recruited without consulting the employment exchange, should be replaced by the candidates recruited through employment exchange. Such order was challenged by the mazdoors, who were not recruited through employment Exchange, in O.A.Nos.846 and 847 of 1991. The aforesaid O.As along with O.A.No.1199 of 1991 were disposed of by the Tribunal by judgment dated 12.5.1992. While dismissing such Applications, the Tribunal observed :-
“… Having allowed such persons to continue on the rolls of casual workers it would be unfair to dispense with their services, even while conferring on the category, the right to regular employment in future vacancies. Since the employment is casual and intermittent, it cannot be said that persons on the rolls for the longest period have also been employed for the longest period in view of the inherently arbitrary nature of the entire arrangement. Any right to regular employment should be with reference to the actual period, for which they had been engaged even though that also may not have been strictly in accordance with their entitlement and not to the period for which they have been on the rolls of waiting casual workers, awaiting engagement. We would consider, that consistent with the principle incorporated in the Industrial Disputes Act, 1947, a person who has been engaged on a casual basis for 240 days in all should therefore be considered as eligible for continuance in the roll of persons eligible for casual employment irrespective of whether or not they had been engaged earlier, through the employment exchange. We would strongly urge the Government to consider, giving up this arrangement altogether at the earliest. In the meantime those who have completed 240 days of work on a casual basis during the period when they had been kept on the rolls of persons eligible to be engaged may be continued, subject to the eventual appointment against vacancies arising in the basic service. With this modification to sub para 8 of para 3 of a letter of P&AR Department, No.13830/89-8 dated 5.3.91, the application is dismissed.”
3. On the basis of the aforesaid observation, the Government subsequently issued G.O.Ms.No.398 Personal & Administrative Reforms (Personal-F) Department dated 18.12.2002 containing a list of 162 persons who had completed 240 days on 12.5.1992, i.e., the date on which the Tribunal has passed the judgment. It was indicated that the persons, whose names were found in such G.O., would be absorbed on permanent basis whenever vacancy arose in future. However, inspite of the observation of the Tribunal that such practice should be discontinued, respondents 1 to 8 had been continued to be engaged even after the date of judgment of the Tribunal and they have completed 240 days on or before 18.12.1992, the date on which the Government had issued G.O.Ms.No.398. Since the name of the Respondents 1 to 8 did not find place in the G.O.Ms.No.398 dated 18.12.1992, they filed O.A.No.4419 of 1993 and other connected O.As before the Tribunal with a prayer to direct the State Government to regularise their services as they had completed 240 working days, as indicated in the earlier judgment of the Tribunal in O.A.No.846 of 1991 and other connected matters. However, such O.As were dismissed on 4.12.1995. Review Application No.94 to 102 of 1996 were also dismissed on 7.5.1997. Respondents 1 to 8 filed W.P.No.9878 of 1998 and other connected writ petitions. The relevant portion of the order dated 24.7.1998 passed in W.P.No.9878 of 1998 is as follows:-
“2. It is not possible for us to say that the impugned order made in review application suffers from any infirmity having regard to the scope of the review. If the petitioner is aggrieved by the original order of the Tribunal, it is for him to challenge the said order. But, the learned counsel for the petitioner states that subsequently, the Government have passed an order without properly understanding the orders of the Tribunal and contrary to the orders of the Tribunal passed in O.A.Nos.846, 847 and 1199 of 1991. If the petitioner is aggrieved by the said G.O.No.398 dated 18.12.1992, it is equally open to him to challenge the said order.”
Similar orders were passed in other connected writ petitions. Thereafter, the respondents 1 to 8 filed O.A.No.9356 of 1998 for quashing G.O.Ms.No.398 dated 18.12.1992 so far as it related to fixing the cut-off date as 12.5.1992 and for a direction to the State Government to provide permanent appointment to the applications in any of the vacancies existing or arising in future under the Tamil Nadu State Government service in the Secretariat. Such Application has been allowed by the Administrative Tribunal by order dated 2.2.2001 and direction has been issued to absorb the present respondents 1 to 8 in any existing vacancy and if sufficient number of vacancies are not available, they should be absorbed as per the seniority among them.
4. Before the Tribunal, in the counter filed by the Government, it had been indicated that since no particular date had been fixed by the Tribunal in its order dated 12.5.1992, the Government while issuing G.O.Ms.No.398 dated 18.12.1992 had taken the date of the judgment of the Tribunal, that is to say, 12.5.1992, and passed orders for regularisation of those who had completed 240 days by the said cut-off date and since the present respondents 1 to 8 had not completed 240 days on 12.5.1992, their names had not been included.
5. The Tribunal has observed that as per the earlier decision of the Tribunal, the persons who complete 240 days should be considered as eligible irrespective of the fact that their earlier engagement was not through employment exchange. It has been further observed that even though the Tribunal had observed that practice of engaging persons as NMRs should be given up, yet the applicants before the Tribunal were engaged even after the date of the judgment, and therefore, after completion of 240 days, they should have been regularised.
6. The main contention raised by the counsel for the State Government is to the effect that the present respondents had filed O.A.No.4419/1993 and other connected matters and such O.As had been dismissed by the Tribunal by holding that there is no arbitrariness in fixing the cut-off date as 12.5.1992, i.e., the date on which the Tribunal had passed the judgment. Review Application filed by the respondents 1 to 8 were also dismissed. Thereafter W.P.No.9878 of 1998 and other connected writ petitions were also dismissed and as such, the subsequent application filed by the very same parties was not maintainable.
7. Learned counsel appearing for the respondents 1 to 8 submitted that even though the writ petitions filed by the respondents 1 to 8 were dismissed at the stage of admission, an observation had been made by the Bench to the effect that it would be open to the present respondents 1 to 8 to challenge the G.O.Ms.No.398 by filing fresh O.A. before the Tribunal, and therefore, it cannot be said that the matter had been finally decided against the present respondents 1 to 8.
8. In the present case, the Tribunal has observed that in the first decision of the Tribunal dated 12.5.1992, it was no where specifically indicated that only those who had completed 240 days on or before the date of judgment of the Tribunal should be considered. The Tribunal had merely made an observation saying that the practice of engaging mazdoors on NMR basis should be discontinued and persons who had completed 240 days should be absorbed. Ultimately, G.O.Ms.No.398 was issued by the Government on the aforesaid basis. Even though the respondents 1 to 8 had not completed 240 days by 12.5.1992 and even though there was observation that such practice should be discontinued, yet the respondents 1 to 8 were engaged on subsequent dates and by the time the G.O.Ms.No.398 was issued on 18.12.1992, they had completed 240 days. The observation of the Tribunal, therefore, appears to be justified. Since the respondents 1 to 8 were continued to be engaged even after the judgment of the Tribunal and they had completed 240 days by the date of issuance of G.O. dated 18.12.1992, on the basis of the same reasoning, they should have been regularised.
9. It is of course true that earlier O.As filed by the respondents 1 to 8 were dismissed. However, the effect of such dismissal was diluted in the sense that the High Court observed that it would be open to the respondents 1 to 8 to file fresh application challenging the validity of the G.O. itself. In our opinion, in view of the subsequent observation of the Bench, the principle of res judicata or finality was not applicable in the peculiar facts and circumstances of the present case. In such view of the matter, we do not find any error of law apparent on the face of record in the order passed by the Tribunal warranting interference under Article 226 of the Constitution of India.
10. There is yet another reason why we would not like to interfere with the order passed by the Tribunal. As we have already indicated, inspite of the judgment of the Tribunal dated 12.5.1992, the present respondents 1 to 8 were continued to be engaged and in the process they have been allowed to complete 240 days. In other words, the very action of the present petitioners in allowing the respondents 1 to 8 to be engaged, even after the earliest order, had obviously given rise to a legitimate expectation in their mind. The present order of the Tribunal has only recognised this aspect. Since the order is in aid of substantial justice, even assuming that there is some illegality in the order of the Tribunal, we do not feel inclined to exercise the discretionary remedy available under Article 226 of the Constitution to belie the legitimate expectation of the respondents 1 to 8.
11. For the aforesaid reasons, the writ petitions are dismissed. There is no order as to costs.