## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT:**
**THE HON'BLE ACTING CHIEF JUSTICE MRS.MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE**
**TUESDAY, THE 5TH DAY OF JUNE 2012/15TH JYAISHTA 1934**
**WP(C).No. 33814 of 2007 (S)**
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## **OA.371/2005 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH**
## **PETITIONER:**
**-------------------**
**R.K.JAIN, AGED 41 YEARS, S/O VIMAL KUMAR JAIN, PROGRESS MAN WORKING UNDER THE CHIEF PROJECT MANAGER/RAILWAY ELECTRIFICATION, SECUNDERABAD, PERMANENT ADDRESS C/O A.RAMAKRISHNA REDDY, 2-2-1144/3/1/B, NEW NALLAKUNTA, HYDERABAD-44.**
**BY ADVS.SRI.T.C.GOVINDA SWAMY SMT.D.HEERA SMT.R.R.REJITHA SRI.P.V.ABDUL SAMAD**
**RESPONDENTS:**
**-----------------------**
**1. UNION OF INDIA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF INDIA, MINISTRY OF RAILWAYS, RAIL BHAWAN, NEW DELHI.**
**2. THE GENERAL MANAGER, CENTRAL RAILWAY, CHATRAPATHI SHIVAJI TERMINUS, MUMBAI.**
**3. THE GENERAL MANAGER, CENTRAL ORGANISATION OF RAILWAY ELECTRIFICATION (CORE), ALLAHABAD.**
**4. THE DIVISIONAL RAILWAY MANAGER, CENTRAL RAILWAY, NAGPUR DIVISION, NAGPUR.**
- **BY ADV. SRI.B.JAYASANKAR, SC, RAILWAYS BY SRI.N.B.SUNIL NATH,SC, RAILWAYS**
**THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**MG**
## **WP(C).No. 33814 of 2007 (S)**
## **---------------------------------------**
||**APPENDIX**|
|---|---|
|**EXT.P1:-**|**COPY OF ORDER DATED 16.08.2007 IN OA NO.371/05-HON'BLE TRIBUNAL,**|
||**ERNAKULAM BENCH.**|
|**EXT.P2:-**|**COPY OF OA NO.371/05 DATED 15 MAY 2005 WITH ITS ANNEXURES FILED**|
||**BEFORE THE HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL,**|
||**ERNAKULAM BENCH.**|
|**EXT.P3:-**|**COPY OF THE REPLY STATEMENT DATED 09 SEP 2005 FILED BY THE**|
||**RESOPONDENTS, IN OA no.371/05-HON'BLE TRIBUNAL, ERNAKULAM**|
||**BENCH.**|
|**EXT.P4:-**|**COPY OF REJOINDER DATED 10 OCT 2005 FILED Y THE APPLICANT IN OA**|
||**NO.371/05 BEFORE THE HON'BLE TRIBUNAL.**|
|**EXT.P5:-**|**COPY OF THE REPLY TO REJOINDER FILED ON BEHALF OF THE**|
||**RESPONDENTS 1 TO 4 IN OA NO.371/05 BEFORE THE HON'BLE TRIBUNAL.**|
|**EXT.P6:-**|**COPY OF THE ORDER OF THE HON'BLE CENTRAL ADMINISTRATIVE**|
||**TRIBUNAL, ERNAKULAM BENCH, IN OA NO.905/97 AND CONNECTED**|
||**CASES DATED 30 AUGUST 2000.**|
## **RESPONDENT'S EXHIBITS: NIL**
## **//TRUE COPY//**
## **PA TO JUDGE**
## **MG**
**MANJULA CHELLUR (Ag.CJ) & A.M.SHAFFIQUE, J. * * * * * * * * * * * * * * * * * * *** W.P.C.No.33814 of 2007 -------------------------------------Dated this the 5[th] day of June 2012
**J U D G M E N T**
## **SHAFFIQUE,J.**
The petitioner is presently working as an adhoc Progress Man in the Railway Electrification Organisation. He filed OA No.371/05 before the Central Administrative Tribunal inter alia praying for the following reliefs:
(i) Declare that non-feasance on the part of the Respondents to consider the Applicant for regular absorption against a Group 'C' post as provided for in Annexure A1 and also in Annexure A2 through an examination or screening test conducted by the Railway Administration is arbitrary, discriminatory and unconstitutional.
(ii) Direct the Respondents to consider the Applicant for regular absorption as a Group 'C' employee as provided for in Annexures A1 and A2 within a time limit and direct further to grant consequential benefits emanating therefrom.
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2. However the said O.A came to be dismissed in terms of paragraph 6 which says as under:
“I have heard Mr.T.C.Swamy for the applicant and Mr.Thomas Mathew Nellimoottil for the respondents. The Annexure A-1 order referred to in the relief clause has been issued by the Railway Board way back on 09/04/1997. The relevant part of the said order relied upon by the applicant is as under:-
“3. The question of regularisation of the casual labour working in Group “c” scales has been under considerations of the Board. After careful consideration of the matter, Board have decided that the regularisation of casual labour working in Group “c” scales may be done on the following lines:
- (i) All casual labour/substitutes in Group “C” scales whether they are Diploma Holders or have other qualifications, may be given a chance to appear in examinations conducted by RRB or the Railways for posts as per their suitability and qualifications without any age bar.”
It was after the issuance of the aforesaid orders by the Railway Board, the applicant had first
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filed OA 78/98 before the Nagpur Bench seeking absorption in the Group 'C' cadre which was dismissed on 16/09/1998 on the ground that his case was similar to the one which was already decided in OA 455/97. Since the applicant did not challenge the said orders, it attained finality. However, after 4 years, the applicant again raised the same issue and sought the same relief on another ground in OA 2192/01. It was dismissed on 18/01/2002 on the ground of res judicata as the prayer of the applicant in both O.As 78/98 and 2192/01 was found to be identical. The Tribunal went ahead and held that there was nothing wrong in not holding any separate test by the Railway Recruitment Board or the Railways. It was also held that “whether it was an examination to be conducted by RRB or Railways should not be a cause of grievance especially when the letter of the Railway Board dated 09.04.97 clearly stipulates that such casual labour may be given a chance to appear in examination conducted by RRB or the Railways and similarly placed persons and other colleagues of the applicants appeared in the GDCE conducted by the Railways, the applicants cannot now oppose the same by saying that the test should be conducted only by RRB”. The
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Review Application filed by the applicant on the aforesaid order dated 18.1.2002 was also dismissed on 30.05.2002. However, on the basis of the opportunity granted to all similar persons, the applicant also appeared in the test held in 2002, but he could not succeed. Now again the applicant has filed the present OA after another 4 years contending that he was allowed to participate in the said test held in 2002 only taking notice of his deemed regular status as a group “D” employee in the Railways but no screening test or selection was conducted exclusively for regularisation of casual labourers as envisaged in the order dated 9/4/1997 contained in Annexure A1 order of the Railway Board. In my considered opinion, the present OA is nothing but an abuse of the process of law. The Tribunal has already observed in the Annexure A2 order dated 18.1.2001 in O.A.2192/2001 that the said OA itself was hit by the principles of res-judicata, as the reliefs sought by the applicant in that OA and those in the earlier OA 78/98 were the same . Both the OAs 78/98 and 2192/01 have become final. Ignoring the caution given by this Tribunal, the applicant has again chosen to file the present OA seeking the same reliefs on
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certain other grounds. The applicant should have pursued appropriate remedy at the appropriate time. Once the applicant has chosen not to challenge the order of this Tribunal in OA 2192/01 dated 18/1/2002, after a lapse of about 4 years, he should have restrained himself from re-agitating the issue once again as a matter of trying his luck.”
The Tribunal also referred to judgment of the Supreme Court in **State of Karnataka and another v. All India Manufacturers Organization and others** [(2006) 6 SCC 683] to arrive at the said conclusion.
3. It is contended by the learned counsel for the petitioner that the O.A filed is not res judicata and there was a specific direction by the CAT in the order dated 18/01/2002 in O.A.No.2192/2001 permitting the applicants to appear for the examinations conducted by the respondents for the purpose of absorbing them in group 'C'. It is also observed in the said order that it is open for the petitioners to appear for the examination and screening to be held by the respondents and the respondents will allow them to appear for the same. On the basis of these observations, it is argued by the learned counsel for the
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petitioner that the Railway was under obligation to conduct an examination as provided under Railway Board Order dated 09/04/1997 so that an opportunity should have been obtained by the petitioner and like persons to get regularisation. It is his further case that such an opportunity has been lost and therefore it is not correct to say that the present application is barred by res judicata.
4. We do no think that the above contention can be appreciated. On a perusal of the orders passed by the Central Administrative Tribunal in O.A.No.78/98 and O.A.2192/2001 it is evident that the claim of the petitioner is barred by principles of res judicata. The petitioner has claimed the benefit under the Railway Board Order dated 09/04/1997 which has been rejected long back in O.A.No.78/98. Still further when O.A.2192/2001 was filed the same was dismissed finding that the application was barred by the principles of res judicata. The observation made by the Tribunal in the order in O.A.2192/2001 does not provide for a fresh cause of action to the petitioner to claim the benefits of Railway Board order dated 09/04/1987.
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5. In that view of the matter, we are not inclined to interfere with the judgment of the Tribunal.
5. The learned counsel for the petitioner seeks indulgence of this Court to make a representation to the Railway Board claiming that no examinations were conducted in regard to the petitioner and similarly placed persons whereas according to him examinations were conducted in other sub divisions and that too based on various orders passed by the CAT. In that event the petitioner is permitted to submit a representation to the Railway Board and in the event of receiving such representation, the Railway Board shall take into consideration the facts of the case and dispose of the same on merits within a period of three months from the date of receipt of such representation.
Writ petition is disposed of as above.
(sd/-)
**(MANJULA CHELLUR, ACTING CHIEF JUSTICE)**
(sd/-)
## **(A.M.SHAFFIQUE, JUDGE)**
jsr
