Orissa High Court
Goura Prasad Pattanaik And Another vs State Of Odisha And Others on 3 December, 2016
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
HIGH COURT OF ORISSA: CUTTACK.
W.P.(C) No.6318 of 2015
In the matter of application under Articles 226 and 227 of the
Constitution of India.
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Goura Prasad Pattanaik and Another .......... Petitioners.
- Versus-
State of Odisha and Others ..........Opposite Parties.
Counsel for Petitioners : M/s.Ashok Kumar Mohapatra-1, S. C.
Rath and I. Khan.
Counsel for Opp.Parties : M/s. Dayananda Mohapatra, M.
Mohapatra, G.R. Mohapatra and A. Dash.
PRESENT:
THE HONOURABLE KUMARI JUSTICE SANJU PANDA
&
THE HONOURABLE SHRI JUSTICE SUJIT NARAYAN PRASAD
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Date of hearing & Judgment : 03.12.2016
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S. N. Prasad, J.The petitioners, being aggrieved with the order dtd.11.03.2015 passed by Orissa Administrative Tribunal, Cuttack Bench Cuttack are before this Court invoking the jurisdiction conferred under Article 226 and 227 of the Constitution of India, whereby and where under the gradation list at annexures-8 and 9, annexed to the writ petition have been declared to be not prepared in accordance with the provision of Rule 5 of the Orissa Administrative Tribunal (Recruitment and Conditions of Service of Officers and Staff) Rules, 1999.
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2. The brief facts of the case is that the opposite party no.4 had entered into service as Jr. Assistant, temporarily on trial basis vide order dtd.01.03.1982 in the Registry of Orissa High Court, Cuttack, petitioner no.1 had entered into service as Jr. Assistant, on regular basis in the Registry of Orissa High Court, Cuttack vide order dtd.3.9.1984 while petitioner no.2 entered into service as Jr. Clerk under the Director of Consolidation vide order dtd.9.7.1984. The District Judge, Puri had issued a communication addressed to the Registry of Orissa High Court on 9.12.1984 that the District Judge, Puri has got no objection to absorb opposite party no.4 in Puri Judgeship as Jr. Clerk, subject to the condition that he would not claim seniority and he shall be treated as junior most clerk in the said judgeship. The opposite party no.4, after accepting the terms and conditions as contained in the communication dtd.09.12.1984 has sought for to relieve him from the registry of Orissa High Court and accordingly he was relieved on 20th December, 1985, joined as Jr. Clerk in the Puri judgeship. A letter was issued under the signature of the Registry of Orissa Administrative Tribunal, addressed to the District Judge, Puri on 20th September, 1986 that the opposite party no.4 has been selected as Jr. Assistant to work in Orissa Administrative Tribunal for a period of two years on deputation basis and if found suitable, he would be permanently absorbed.
The petitioner no.2 joined as a Jr. Assistant on deputation in the Orissa Administrative Tribunal like that of opposite party no.4 on 3 31.10.1990 while the petitioner no.1 had joined as Jr. Assistant on deputation on 10.03.1987. The employees of the Orissa Administrative Tribunal, including the petitioner and opposite party no.4 had filed an original application being O.A. No.37 of 1994 before the Orissa Administrative Tribunal for their absorption and regularization of their services in the Tribunal, the Tribunal vide order dtd.27.08.1998 had disposed of the original application directing opposite party no.1 to 3 to absorb the entire deputationists, including the petitioners and opposite party no.4 with the observation that on absorption, their past services shall be reckoned for the purpose of seniority.
The Tribunal absorbed all the deputationists, including the petitioners and opposite party no.4 in the Tribunal vide order dtd.29.12.1995. The Tribunal had issued a gradation list of the cadre of Jr. Assistant including the petitioners and opposite party no.4 on 6.2.1998 and in the year 1999 the recruitment rules of the Tribunal were notified. The petitioner no.1 and opposite party no.4 respectively filed O.A. Nos.197 of 1999 and 1962 of 1998 wherein the orders dtd.29.12.1985 and 06.02.1998 had been challenged. In O.A. No.1962 of 1998, the opposite party no.4 had prayed for counting his seniority w.e.f.01.03.1982, i.e. the date when he had entered into service as Jr. Assistant, temporarily on trial basis in the Registry of Orissa High Court, the learned Tribunal disposed of all those original applications with the directions that annexure-6 dtd.29.12.1995, annexure-7 dtd.29.12.1995 and annexure-12 dtd.06.02.1998 are quashed 4 in so far as these apply to the deputationists including the petitioners and private party - respondents, all the persons other than the direct recruits to the Tribunal who came from different departments will have to go through the fresh process of absorption, they would be asked for their willingness for absorption, they would be given terms and conditions as contained in Orissa Administrative Tribunal (Recruitment and Conditions of Service of Officers and Staff) Rules, 1999 (herein after referred to as the Rules, 1999) and thereafter, on the basis of their option, they would be considered for absorption in the Tribunal.
The order of the Tribunal has been challenged before this Court vide W.P.(C) No.10114 of 2007 while the petitioner no.1 has also challenged the order in W.P.(C) No.10717 of 2007 and this Court vide orders dtd.21.4.2011 and 09.03.2011 upheld the orders of the Tribunal by taking into reference the order passed in O.A. No.37 of 1994 and thereafter the matter has been remanded to be considered the matter of absorption in accordance with rules, the said order was subsequently been modified on an miscellaneous application being Misc. Case No.15196 of 2012 and while disposing of the miscellaneous case vide order dtd.17.10.2012 time limit has been framed for disposal of the application by the Tribunal on remand.
The Tribunal, in pursuance of the order passed by this Court in W.P.(C) Nos.10114 of 2007 and 10717 of 2007 and order dtd.13.4.2007 passed by the Orissa Administrative Tribunal in O.A. No.1962 of 1998 and two other O.As. prepared a provisional gradation list of the employees of the 5 Orissa Administrative Tribunal which had been published for information of all concerned for filing of objection within two weeks, and after consideration of the objection, the final gradation list as contained in Annexure-9 i.e. the seniority list dtd.10.10.2013 has been challenged in an original application being O.A. No.2152(C) of 2013. The Orissa Administrative Tribunal vide order dtd.11.3.2015 has quashed the impugned orders taking into consideration the fact that the past service of the applicant, i.e. opposite party no.4 herein has not been taken into consideration while preparing the seniority list being contrary to the provision of Rule 5(2) of the Rules 1999. The order is impugned in this writ petition by the petitioners on the ground that the opposite party no.4 admittedly was appointed under the Registry of Orissa High Court on 01.03.1982 temporarily on trial basis, he was offered appointment under the judgeship of Puri vide order dtd.12th February 1982, joined on 1.3.1982 temporarily on trial basis as lower Division Assistant in the scale of pay of Rs.255 - 360/-, thereafter he was absorbed under the judgeship of Puri with a condition that he shall not claim seniority and he would be treated as junior most clerk in the judgeship, in view thereof he was relived from the Registry of Orissa High Court to join his new appointment in the judgeship of Puri as Jr. Clerk vide order dtd.17.12.1985, in terms thereof, he has joined under the judgeship of Puri w.e.f. 18.12.1985 and as such his services rendered before the Registry of Orissa High Court w.e.f.01.03.1982 till 17.12.1985 cannot be taken into consideration for the purpose of determining his seniority before the Orissa Administrative 6 Tribunal, but this aspect of the matter has not been appreciated by the Tribunal and as such the seniority list has been quashed by the Tribunal which is absolutely illegal for the reason that when the services rendered by opposite party no.4 before the Orissa High Court was on trial basis, hence his services cannot be said to be under the regular establishment, rather it is purely temporary and it is settled that the services rendered under on temporary basis cannot be taken into consideration for the purpose of determining seniority of the said employee.
The other ground taken that Rule 5 of the Rules, 1999 is specific which provides that the seniority of the employees who joined their services under the Tribunal by virtue of absorption and the services rendered by them under the erstwhile employer shall not be taken into consideration, provided that if two or more persons are absorbed in a particular cadre on the same day, their inter se seniority would be decided by taking into consideration their past services rendered in the department / offices and further provided that the services rendered by an officer / employee in the Tribunal before the commencement of this rule shall be reckoned towards counting of seniority and eligibility for promotion to the next higher grade in the Tribunal, according to the petitioners, as per provision of Rule 5 of Rules, 1999 the services rendered by opposite party no.4 before the Orissa High Court cannot be considered, rather his past services only be considered so far as it relates to services rendered by him 7 under the Puri Judgeship, but the Tribunal has not taken into consideration this aspect of the matter.
The further ground has been urged that the Tribunal has got no jurisdiction to reopen the issue which has already been decided by the Tribunal itself.
3. While countering the argument advanced on behalf of learned counsel for the petitioners, the learned counsel representing opposite party no.4 has vehemently opposed the argument by submitting that the Tribunal has committed no error in passing the order on the ground that Rule 5 of Rules 1999 is very specific which provides provision for reckoning the inter se seniority of the employees of the same cadre. The opposite party no.4, after following the regular process of recruitment, has been appointed by an order passed under the signature of Deputy Registrar, Orissa High Court on 12th February, 1982 as Lower Division Assistant in the Court's establishment in a particular pay scale temporarily on trial basis, the opposite party no.4 has joined his service under the Orissa High Court w.e.f. 01.03.1982 and while rendering services here, he has accepted the offer of appointment by way of absorption under the judgeship of Puri as a Jr. Clerk by virtue of a decision taken by the District and Sessions Judge, Puri on 09.12.1985, the opposite party no.4 had accepted the offer and thereafter he was relieved from this Court vide order dtd.17.12.1985 to join his new appointment in the Judgeship of Puri as Jr. Clerk and in view thereof he has joined vide order dtd.18.12.1985 and as such the contention 8 raised by the petitioners that his services rendered under the Orissa High Court is not fit to be taken into consideration for the purpose of counting inter se seniority amongst the employees of the cadre, working under the Orissa Administrative Tribunal is not fit to be accepted for the reason that he was appointed on substantive post under the Orissa High Court and from there he was appointed by way of absorption under the judgeship of Puri and from there he has opted to resume his duty under Orissa Administrative Tribunal by virtue of a process having been initiated by the Tribunal, hence the services rendered by opposite party no.4 before the Orissa High Court has also to be taken into consideration on the ground that it is appointment by way of absorption in the judgeship of Puri and the definition of absorption is settled that the services rendered by an employee under the establishment will also be taken into consideration for all practical purposes.
He further submits that the provision of Rule 5 of the Rules 1999 stipulates that services rendered by an employee under the Government departments and the offices will be taken into consideration and as such the services rendered by him under the Orissa High Court as well as Puri Judgeship have not been taken into consideration while preparing the seniority list and the learned Tribunal after taking into consideration this aspect of the matter has quashed the same, hence there is no infirmity in the same.
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4. Heard the learned counsels for the parties and perused the documents available on record.
The fact which is not in dispute in this case is that the petitioner no.1 had entered into service as a Jr. Assistant on regular basis in the Registry of Orissa High Court w.e.f. 03.09.1984, the petitioner no.2 had entered into service as Jr. Clerk under the Directorate of Consolidation on 09.07.1984, the opposite party no.4 had entered into service as Jr. Assistant, temporarily on trial basis in the registry of Orissa High Court w.e.f. 01.03.1982 by virtue of order passed by the competent authority on 12.02.1982. The District Judge, Puri has issued a communication on 9.12.1984 entertaining the application of opposite party no.4 to the effect that he has offered himself to be absorbed in the services of Judgeship of Puri as Jr. Clerk which has been accepted with the condition that he shall not claim seniority and he would be treated as junior most Clerk in the Judgeship of Puri, accordingly he has been relieved by the Orissa High Court vide order dtd.17.12.1985, thereafter he joined as Jr. Clerk under the Judgeship of Puri on 18.12.1985. The Registry of Orissa Administrative Tribunal, on 20.09.1986, informed the District Judge, Puri that opposite party no.4 has been selected as Jr. Assistant to work in the Orissa Administrative Tribunal for a period of two years on deputation basis and if found suitable, he would be permanently absorbed. The opposite party no.4 was relieved from the office of District Judge, Puri, w.e.f. 30 November, 1986 with a direction to join his new appointment as Jr. Assistant in the 10 office of Orissa Administrative Tribunal, Bhubaneswar on 01.10.1986 positively, the opposite party no.4 has joined there and started discharging his duty.
All the employees, while working under the Orissa Administrative Tribunal, including the petitioners and opposite party no.4, when not regularized, had filed original application being O.A. No.37 of 1994 before the Orissa Administrative Tribunal for their absorption and regularization in service, the Tribunal has disposed of the original application directing opposite party nos.1 to 3 to absorb the entire deputationists, including the petitioners and opposite party no.4 with the observation that on absorption their past services shall be reckoned for the purpose of counting seniority, accordingly the Tribunal had absorbed all the deputationists including the petitioners and the opposite party no.4 in the Tribunal vide order passed in this regard on 29.12.1985. The Tribunal had published a gradation list of the Jr. Assistants including the petitioners and opposite party no.4 on 06.02.1998. Thereafter State Government come out with the Rules 1999.
The petitioner no.1 and opposite party no.4 had filed original applications being O.A. Nos.197 of 1999 and 1962 of 1998 challenging the orders dtd.29.12.1995 and 06.02.1998 whereby and where under the Tribunal has absorbed all the deputationsists including the opposite party no.4 and the petitioners and had published a gradation list wherein the sole question raised by the parties as to whether the entire service rendered 11 under the Registry of Orissa High Court and then in the office of District Judge, Puri can be taken as regular service and the Tribunal while answering the issue has passed the following directions:-
(i) Annexures-6 (dated 29.12.1995), 7 (dated 29.12.1995) and 12 (dated 06.02.1998) are quashed in so far as these apply to deputationists including the applicants and private party respondents.
(ii) All the persons other than direct recruits to the Tribunal who came from different departments will have to go now through the fresh process of absorption. They would have to be asked for their willingness for absorption; they would be given terms and conditions as contained in the Rules and thereafter on the basis of their option they would be considered for absorption in the Tribunal Surviving liens on the date of absorption which were unilaterally terminated by the borrower would stand revived if an employee is not willing to be absorbed in the Tribunal and wishes to revert to his parent department at his own risk. The modalities of revival of lien will however be settled in consultation with the lending Department. The date of absorption in respect of the members of a cadre at the entry grade in the Tribunal would be one single date. Their inter se seniority would be in accordance with the Rules.
(iii) A gradation list will be published on the basis of seniority so determined. Promotions already made be reviewed in the light of this decision.
(iv) Those who have already retired and have got any benefit out of the absorption orders now quashed, their cases would not be reopened.
(v) This entire exercise be completed within a period of three months from the date of receipt of a copy of these orders. Until then, status quo as on date be maintained.
12The order passed by the Tribunal in O.A. Nos.1962 of 1998 and 197 of 1999 had been challenged before this court in W.P.(C) No.10114 of 2007 and this Court vide order dtd.9th March, 2011 has passed order holding therein that the earlier regularization / absorption orders passed by the Chairman of the Tribunal not being in consonance with the orders of the Tribunal in O.A. No.37 of 1994, as such the same has been quashed and this Court has remitted the matter before the authority to reconsider the matter of regularization / absorption in accordance with Rule 5 of the Rules, 1999. The Chairman of the Orissa Administrative Tribunal has passed an order on 05.04.2012, published the provisional gradation list asking for filing objection, if any, from the concerned employee within two weeks for finalization of the gradation list and accordingly the final gradation list had been published on 14.12.2012 wherein the opposite party no.4 has been shown below in comparison with the petitioners hence the same has been challenged by opposite party no.4 before the Tribunal in O.A. No.2152(C) of 2013, the Tribunal after taking into consideration the earlier order passed by the High Court and in O.A. No.37 of 1999 has quashed the gradation list with a direction upon the opposite parties to prepare the same afresh following Rule 5(2) of the Rules 1999 within a period of two months from the date of receipt of copy of the order and place opposite party no.4 at appropriate position taking into consideration his past services in the High Court w.e.f.01.03.1982 and extend all consequential service and financial benefits from the date his juniors got such benefit, within a period of two months thereafter. This 13 order is under challenge in this writ petition. The sole ground raised by the petitioners is that the period of service rendered by opposite party no.4 from 01.03.1982 cannot be considered for the purpose of counting his seniority since the petitioner was appointed under Orissa High Court temporarily on trial basis and since he was not posted against substantive post, rather on trial basis, hence his services cannot be taken into consideration for the purpose of counting his seniority.
His further argument is that the Tribunal has observed that at best his seniority can be considered w.e.f. 20.12.1985, i.e. the date when the opposite party no.4 had joined his services under the Judgeship of Puri, then only it can be said that the provision of Rule 5 of the Rules, 1999 has been followed.
The sole question which is to be determined in this case is as to whether the period of service rendered by opposite party no.4 w.e.f. 01.03.1982 till 18.12.1985 can be considered for the purpose of counting the seniority of opposite party no.4 while fixing his seniority position in pursuance to the provision of Rule 5 of the Rules, 1999.
There is no denial about the fact that the services of an employee will be counted for the purpose of determining seniority only when the said employee has been appointed against the substantive post. The services rendered by the said employee under the post which is not 14 substantive or by way of irregular appointment or under the D.L.R. or N.M.R. cannot be considered for the purpose of counting seniority.
In the light of this settled proposition we have examined the facts of the case and found that opposite party no.4 had been engaged initially before the Registry of Orissa High Court vide office order dtd.12th February 1982 whereby and where under he was appointed temporarily on trial basis as Lower Division Assistant in the Court's establishment in the pay scale of Rs.255 - 360/- with usual D.A. and A.D.A. as admissible under the rules. The appointment has been made purely on temporary basis with the condition that it will be terminable at any time without notice and without assigning any reason thereof. He was directed to join on 24.2.1982, the opposite party no.4 had joined his services w.e.f.01.03.1982.
It further transpires from the record that opposite party no.4 had made an application while he was working as Jr. Assistant under the Registry of Orissa High Court for his absorption as Jr. Clerk under the Judgeship of Puri, the said application was forwarded through his employer, i.e. through Registry of Orissa High Court vide letter as contained in letter dtd.30.07.1984, the District and Sessions Judge, Puri, in response to the said letter, has communicated vide communication dtd.09.12.1985, addressed to the Registry Orissa High Court stating therein that the a vacancy arose and since the opposite party no.4 had sufficient experience and is suitable, there is no objection to absorb him in his judgeship as Jr. 15 Clerk and as such it was requested to place the matter before the Hon'ble Court and obtain orders relieving opposite party no.4 so as to enable him to join in his judgeship, with the condition that he shall not claim seniority and he would be treated as junior most clerk of the Judgeship, the said order was received by the High Court on 11.12.1985 and was placed before the competent body to take decision, accordingly decision was taken to relieve him to resume his new appointment, in view thereof he was relieved w.e.f. 17.12.1985, resumed his duty as Jr. Clerk in the Judgeship of Puri as would be evident from the order dtd.17.12.1985 as contained in Memo No.27650, the opposite party no.4 has joined his service as Jr. Assistant under the Judgeship of Puri on 18.12.1985 and started discharging his duty there.
We have also verified from the original service book in which the date of entry in service is reflected as 01.03.1982, after taking into consideration the fact that the petitioner was appointed before the Orissa High Court on substantive basis, although temporarily on trial basis, but subsequently he was relieved to be absorbed as Jr. Assistant in the Judgeship of Puri and thereafter he having been relieved, has joined under the judgeship of Puri.
The objection raised by the petitioners that the services rendered by opposite party no.4 w.e.f. 01.03.1982 till 18.12.1985 cannot be taken into consideration for the purpose of counting seniority in view of the provision of Rule 5 of the Rules, 1999 is not acceptable to us for the reason 16 that the services of opposite party no.4 cannot be held to be illegal, rather from the letter dtd.09.12.1985 it is evident that no objection was sought for absorption of opposite party no.4 in the Judgeship of Puri as Jr. Clerk, meaning thereby the decision was taken to absorb the services of opposite party no.4 in the Judgeship of Puri as Jr. Clerk and the meaning of absorption is that the services rendered by the employee before the erstwhile employer will be taken into consideration for all practical purposes, otherwise there will be no difference in between absorption and fresh appointment.
Taking into consideration the concept of absorption which is not in dispute as per letter dtd.09.12.1985 issued by the District and Sessions Judge, Puri, addressed to the Deputy Registrar, High Court of Orissa, we are not in hesitation to hold that when there is absorption, the services rendered under the erstwhile employer will be taken into consideration for all practical purposes of an employee.
The Tribunal has passed the order considering this aspect of the matter and if the period will not be considered, the services of opposite party no.4 will be said to be initiated w.e.f. 18.12.1985 and admittedly at the time of entry in the service under the Judgeship of Puri no process of recruitment had been initiated and as such the entry in service of the opposite party no.4 before the judgeship of Puri on 18.12.1985 cannot be said to be original appointment since there was no recruitment process for that and further the opposite party no.4 had participated in the regular 17 recruitment process in the year 1982 by virtue of a recruitment process having been followed by the Orissa High Court, hence it will be said to be continuity of service from 1.3.1982 till 18.12.1985.
Moreover, the Tribunal in earlier round of litigation, i.e. in O.A. No.37 of 1994, while disposing of the said O.A. has passed the directions that
(i) they shall be deem to be employees of the Tribunal from the date of their initial appointment; and
(ii) their past services working in different offices shall count towards their seniority and other consequential benefits. These directions even been approved by the Division Bench of this Court in W.P.(C) No.10114 of 2007.
5. We found from the provision of Rule 5 of Rules 1999 which stipulates as follows:-
" Rule-5: Appointment by way of Deputation.
(1). The officers or employees who come to the Tribunal on Deputation from different Departments of the Government, State Government Undertakings, High Court or the Sub-ordinate Judiciary may be absorbed in the Tribunal on exercising option on the order of the Chairman passed in consultation with the concerned lending authority. The Officers or employees so absorbed in any post or the service shall not claim seniority accrued to them in their parent Department or Offices.
Provided that the seniority inter se of the Officers or the employees so absorbed in the service shall count from the date of their absorption in any cadre of the service and if two or more persons are absorbed in a particular grade on the same day, their inter se seniority shall be decided by taking into consideration the period their past services rendered in their Departments/Offices. 18
Provided further that the services rendered by an Officer/employee in the Tribunal before the commencement of these rules shall be reckoned towards counting of seniority and eligibility of promotion to the next higher grade in the Tribunal." From perusal of the provision of Rule 5 of Rules 1999 it is evident that there are three conditions for determining inter se seniority i.e.
(a) the officers or employees who come to the Tribunal on absorption from different departments of the Government, State Government Undertakings, High Court or the Sub-ordinate Judiciary may be absorbed in the Tribunal on exercising option on the order of the Chairman passed in consultation with the concerned lending authority. The Officers or employees so absorbed in any post or the service shall not claim seniority accrued to them in their parent Department or Offices.
The condition pertains to the officers or the employees who come to the Tribunal on deputation from different departments, can be absorbed but they shall not claim seniority accrued to them in their parent department subject to conditions that the seniority inter se of the officers or the employees so absorbed in the service shall count from the date of their absorption in any cadre of the service and if two or more persons are absorbed in a particular grade on the same day, their inter se seniority shall be decided by taking into consideration the period their past services rendered in their Departments/Offices. It is very evident from this provision that while determining inter se seniority the past services rendered by one or other employee in one or more department or offices shall be taken into consideration.
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(b) the second proviso stipulates that the services rendered by the employee in the Tribunal before the commencement of these rules shall be reckoned towards counting of seniority and eligibility of promotion to the next higher grade in the Tribunal.
The second proviso stipulates a provision to fix the inter se seniority of the employees who were working under the Tribunal before commencement of these rules.
The Tribunal while passing the order in O.A. No.37 of 1994 has passed direction to count their past services working in different offices for fixation of inter se seniority and other consequential benefits and as such from the order passed by the Tribunal in O.A.37 of 1994 if read together with the provision of Rule 5, we find that the Tribunal while delivering judgment in O.A.37 of 1994 has taken the view which subsequently been found support from the provision of Rule 5 of Rules 1999.
We, on examination of the order impugned, have found that the gradation list has been prepared wherein the date of entry in the Govt. service in the parent department of opposite party no.4 has been reflected as 20.12.1985, but in view of the observation made by us herein above, the same cannot be said to be just and proper.
We, also after going through the order passed by the Tribunal, have found that this aspect of the matter has been taken into consideration 20 apart from the other aspects and as such the Tribunal has came to definite finding that the authorities have taken a wrong decision which is contrary to the order passed by the Tribunal in O.A. No.37 of 1994 and the provision of Rule 5 of Rules 1999 and accordingly quashed the impugned order with a direction to prepare a fresh gradation list.
So far as the argument advanced on behalf of learned counsel for the petitioners that the principle of resjudicata will come into play and as such the Tribunal should not have entertained the claim of the petitioners by subsequent original application which is subject matter of this writ petition, but this argument is not acceptable to us for the reason that the Tribunal has passed the order, which is impugned, in compliance to the order passed by this Court in W.P.(C) No.10114 of 2007, disposed of on 09.03.2011 whereby and where under the matter has been remitted to consider the matter of regularization and absorption in accordance with rules and in terms thereof the fresh list was prepared on 14.12.2012, being aggrieved with the same, opposite party no.4 has filed a fresh original application and as such we are not in hesitation to hold that the opposite party no.4 has approached the Tribunal being aggrieved with the fresh cause of action that has been accrued to him after publication of order dtd.14.12.2012 and as such there is no question of applicability of principle of resjudicata.
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In view of discussions made herein above, we are of the view that the Tribunal has not committed any error in passing the order. Accordingly we find no merit in this writ petition.
In the result the writ petition stands dismissed.
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S. N. Prasad, J. Sanju Panda, J. Orissa High Court, Cuttack, Dated the 3rd December, 2016/mkp