JUDGMENT By the Court.—The petitioners Union of India through General Manager, North Central Railway, Head Quarter Office, Nawab Yusuf Road, Allahabad (hereinafter referred to as ‘NCR’) and two others aggrieved by the order dated 13.4.2005 passed by Central Administrative Tribunal, Allahabad have filed this writ petition under Article 226 of the Constitution. 2. The Tribunal has allowed Original Application No. 1605 of 2004 filed by Hub Lal Saroj, respondent No. 2. The order dated 1.11.2005 impugned in the Original Application has been quashed with the direction to the petitioners in this writ petition to retain lien and seniority of respondent No. 2 in Ministerial Cadre, Engineering Department of North Central Railway Head Quarter, Allahabad and to allow him to continue in the said Railways with a further direction to consider him for promotion to higher grade post in accordance with law. 3. Sri B.B. Paul, learned Counsel appearing for the petitioner has strongly assailed the order of Tribunal on the ground that the respondent No. 2 had earlier approached the Tribunal in O.A. No. 730 of 1996 against repatriation order dated 22.5.1996 and 31.12.1996 wherein the Tribunal vide judgment dated 10.12.2000 upheld repatriation order and rejected Original Application. The authorities passed order on 1.11.2004 as a consequence of earlier litigation and, therefore, it could have not given rise to any new cause of action. The subsequent Original Application, therefore, was barred by the principle of res judicata inasmuch for the same cause of action, successive petition is not maintainable and placed reliance on Daryao and others v. State of U.P. and others, AIR 1961 SC 1457 ; Aajeet Prasad Gupta v. State of U.P., AIR 1997 SC 3425 ; Rakesh Kumar Agarwal v. State Bank of India, 2003 (3) ESC 1333; and Bhula Singh v. State of Punjab, 2004 (6) SCC 126 . 4. He further contended that the respondent No. 2 was guilty of playing fraud and misrepresentation and has obtained order by concealment of fact, therefore, the order of Tribunal is a nullity since fraud and justice do not dwell together. He also placed reliance on S.P. Chengal Varya Naidu v. Jagannath, 1994 ACJ 355 and JT 1996 (7) SC 135, Indian Bank v. M/s Satyam Fibres (India) Pvt. Ltd. (Head Note ‘2’ para 20, 22, 23). 5. He also placed reliance on S.P. Chengal Varya Naidu v. Jagannath, 1994 ACJ 355 and JT 1996 (7) SC 135, Indian Bank v. M/s Satyam Fibres (India) Pvt. Ltd. (Head Note ‘2’ para 20, 22, 23). 5. Lastly, he contended that respondent No. 2 was never appointed/promoted on the post of Head Clerk, but his alleged promotion was on stop gap basis conferring no right upon him to continue on the said post and, therefore, he was wrongly allowed to be taken in Head Quarter of NCR on the post of Head Clerk, but when this fact came to the notice, he was rightly sought to be repatriated. The learned Tribunal erred in law in not appreciating these facts and, therefore, the order impugned in the writ petition is illegal. 6. Sri Sudama Ram, on the other hand, appearing for respondent No. 2 opposed the writ petition and contended that the cause of action in the Original Application before the Tribunal was totally different and new one, which has nothing to do with the earlier case and the petitioners are trying to mislead the Court. He further contended that he was working as Head Clerk/Head Time Keeper at Concrete Sleeper Plant, Subedarganj, which was a non-selection post at the relevant time and after working for more than six months, he acquired temporary status to and was rightly taken on the same post at the NCR Head Quarter but subsequently in an illegal manner, the petitioners passed order dated 1.11.2004 whereagainst he filed Original Application before the Tribunal which has been allowed rightly and the judgment of the learned Tribunal needs no interference. 7. Both the learned Counsels have also filed written submissions raising above mentioned grounds, which have also been considered. 8. Before considering rival submissions, it would be appropriate to have a brief perview of the facts giving rise to the dispute in question as is apparent from material on record. The respondent No. 2 was initially engaged as Gangman on 25.9.1975 at Allahabad Division of Northern Railway (in short ‘NR’). He was transferred and appointed as Khalasi at Concrete Sleeper Plant, Subedarganj, Allahabad (hereinafter referred to as ‘CSP’) on 3.12.1979 in the grade of 196-232. The respondent No. 2 was initially engaged as Gangman on 25.9.1975 at Allahabad Division of Northern Railway (in short ‘NR’). He was transferred and appointed as Khalasi at Concrete Sleeper Plant, Subedarganj, Allahabad (hereinafter referred to as ‘CSP’) on 3.12.1979 in the grade of 196-232. On 13.11.1981, he was appointed as Material Checker (in short ‘MC’) in the grade of 225-308, promoted as Material Checker Clerk (hereinafter referred to as ‘MCC’) in the scale of 260-400 revised to 950-1500 on 16.7.1983. His promotion on the post of MCC was temporary and ad hoc conferring no right upon him to claim seniority over his seniors either in open line or in the said organization, i.e., CSP. Vide order dated 31.10.1985 (Annexure-2 to the writ petition), the petitioner was promoted to the post of Senior Clerk in the scale of Rs. 330-560 (revised to 1200-2040) again on purely temporary and ad hoc basis. Subsequently, vide order dated 29.11.1985 (Annexure-1 to the counter-affidavit), the petitioner was promoted on the post of Head Time Keeper in the grade of 425-700 (revised to 1400-2300). The petitioner was regularized vide order dated 1.12.1987 (Annexure-5 to the writ petition) on the post of Clerk in the scale of 950-1500 after qualifying in written test and interview held on 31.10.1987 and 29.11.1987. Further, after declaring him suitable in suitability test held on 17.11.1990, or the post of Senior Clerk, he was regularized in the said cadre vide order dated 29/31.12.1990 (Annexure-3 to the counter affidavit) and was placed in the seniority list of Senior Clerks at SI. No. 9 (Annexure-4 to the counter affidavit) published on 11.7.1991. A perusal of the order dated 29/31.12.1990 shows that the petitioner was at that time working as Head Clerk at CSP. Subsequently, CSP was closed. Since, the petitioner was not initially recruited in CSP, but was appointed in NR in 1975 and was transferred to CSP in 1979, hence, he was maintaining his lien in Engineering Branch under Divisional Supt. Engineer (Coordination), NR, Allahabad vide order dated 22.5.1996. He was repatriated to his parent department, i.e., Allahabad Division, NR, Allahabad and was directed to report to DSE (Coordination), NR, Allahabad. In the aforesaid order, the present designation of the respondent No. 2 was shown as Head Clerk working in the scale of 1400-2300. Engineer (Coordination), NR, Allahabad vide order dated 22.5.1996. He was repatriated to his parent department, i.e., Allahabad Division, NR, Allahabad and was directed to report to DSE (Coordination), NR, Allahabad. In the aforesaid order, the present designation of the respondent No. 2 was shown as Head Clerk working in the scale of 1400-2300. It appears that against the aforesaid order of Transfer from CSP to Allahabad Division of NR, the respondent No. 2 and some others filed Original Application No. 730 of 1996 before the Tribunal under Section 19 of the Administrative Tribunal Act, 1985 expressing their apprehension that after repatriation they may be reverted to lower post. The Tribunal passed an interim order on 19.7.1996 directing to maintain status quo. The respondent No. 2, however, having joined at parent department was posted as Head Clerk, Civil Engineering Training Academy, NR, Kanpur (hereinafter referred to as ‘CETA’). The Original Application No. 730 of 1996 came up for final hearing before the Tribunal and it rejected contention of respondent No. 2 that having worked for more than a decade at CSP, he was not entitled to repatriate in his parent department but ought to have been absorbed permanently at CSP. The Tribunal held that the respondent No. 2 continued to maintain his lien at Allahabad Division, NR, Allahabad. It also held that a person working on deputation would have no right to continue as such and his repatriation to parent department is neither illegal nor contrary to rules. It further held that promotion in CSP on local or ad hoc basis did not confer any right upon the promotee to claim seniority on the basis thereof. Consequently, Original Application was dismissed vide order dated 10.11.2000 with the following findings : “For the above, it is found that the applicants were transferred to C.S.P. Subedarganj while they were holding substantive permanent post in their parent establishment and the lien of the applicants persists there and, therefore, they can be repatriated by transfer to their parent establishment and under the circumstances, the relief sought for, cannot be granted to the applicants." 9. In the year 2001-02, North Central Railway (in short ‘NCR’), a new zone was created having its Head Office at Allahabad. The employees working in various divisions under new zone were required to exercise their option for being posted at NCR Head Quarter. In the year 2001-02, North Central Railway (in short ‘NCR’), a new zone was created having its Head Office at Allahabad. The employees working in various divisions under new zone were required to exercise their option for being posted at NCR Head Quarter. Pursuance thereto, respondent No. 2, it appears, submitted his option on 11.9.2002, which was duly countersigned/forwarded by Principal, CETA. The present post on which the respondent No. 2 working was shown as Head Clerk in the pay scale 5000-8000. Accepting option submitted by respondent No. 2, the Divisional Personnel Officer, Allahabad vide order dated 22.4.2003 (Annexure-9 to the Counter-Affidavit) posted him as Head Clerk in Engineering Branch in NCR. Condition No. 3 provided that the lien of the staff transferred and posted under the said order shall be maintained in the division till they are finally absorbed in NCR Head Quarter. In Column-4 under the title date of working on present grade on regular basis, while in respect to other employees specific dates were mentioned, against respondent No. 2, the order stated that he is working in Head Clerk’s Grade 5000-8000 against special supernumerary post of CSP. Pursuant to the said order, the respondent No. 2 joined at NCR Head Quarter and since then, has been working thereat. On 1.11.2003/1.12.2004, the General Manager (Karmic) NCR passed order repatriating the respondent No. 2 to CETA, Kanpur stating that he was posted in NCR Head Quarter on the post of Head Clerk under the impression that he was appointed on regular basis, but after scrutiny of his service record, it has come to notice that he was posted against a supernumerary post and, therefore, is being repatriated. It also said that as per Railway Board’s Circular dated 6.12.1986, only regular employees could have been transferred to NCR and not ad hoc or temporary. It appears that against this order of 1.11.2003/1.12.2004, the respondent No. 2 filed Original Application No. 1605 of 2004. 10. From the facts as discussed above, it cannot be said that the dispute raised in the Original Application No. 1605 of 2004 was same as involved in earlier Original Application. It appears that against this order of 1.11.2003/1.12.2004, the respondent No. 2 filed Original Application No. 1605 of 2004. 10. From the facts as discussed above, it cannot be said that the dispute raised in the Original Application No. 1605 of 2004 was same as involved in earlier Original Application. Earlier, respondent No. 2 has come to the Tribunal against the repatriation from CSP to his parent department, i.e., Engineering Branch, NR, Allahabad, which was repelled by the Tribunal and in our view, rightly, since a deputationist has no right to continue on deputation how so long he has been allowed to continue unless he is absorbed thereat. It is not the case of respondent No. 2 that he was ever absorbed at CSP. In the subsequent original application, the order under challenge was though of repatriation, but this time, it was from NCR Head Quarter to CETA, Kanpur where the respondent No. 2 after repatriation from CSP was posted. Thus, the contention of the petitioners that the subsequent application was barred by principle of res judicata and that it was a successive and second application for the same cause of action cannot be accepted. 11. But the matter does not rest here itself. It appears that the respondent No. 2 was claiming regular status and appointment as Head Clerk and consequently, seniority and right to be considered for further promotion on the basis thereof. There is no material on record to show that at any point of time that the petitioner’s services were regularized on the post of Head Clerk on account of regular vacancy in the cadre and his consequential appointment/promotion on the said post in accordance with rules. The promotion order dated 29.11.1985 makes it clear that he was promoted as Head Time Keeper purely on ad hoc basis. On that date, the petitioner was working on ad hoc basis in the next two lower posts, i.e., Clerk and Senior Clerk and Clerk. He was regularized on the post of Clerk vide order dated 1.12.1987 and on the post of Senior Clerk vide order dated 29/31.12.1990. Therefore, in CSP where he worked for more than 15 years, he was given promotions and regularized on the promotional posts only up to the stage of Senior Clerk and not beyond that. He was regularized on the post of Clerk vide order dated 1.12.1987 and on the post of Senior Clerk vide order dated 29/31.12.1990. Therefore, in CSP where he worked for more than 15 years, he was given promotions and regularized on the promotional posts only up to the stage of Senior Clerk and not beyond that. On the post of Head Clerk by no stretch of imagination, the petitioner can claim regular status earlier to his appointment on the post of Senior Clerk on regular basis inasmuch unless he becomes regular in feeder post, question to give him regular appointment on higher post would not have arisen. After repatriation to his parent department, namely, Engineering Section of Northern Railway, Allahabad Division, the petitioner at the best could have been given all the benefits treating him Senior Clerk from the date of regular appointment and in case any person junior to him on the post of the Senior Clerk would have further been promoted, from that date or from the date vacancy of Head Clerk is available in the Division whichever is later. This has one more exception. If in NR, as per his original seniority, his senior is still not regularized or has been considered for regularization as Clerk or Senior Clerk, the respondent No. 2 would have to wait further since promotion in deputation if accelerated would not give extra advantage over the seniors in present department and on repatriation, the incumbent will get his due place as it would have been, had he not gone on deputation. It appears that while passing the impugned order dated 1.11.2003/1.11.2004 this aspect has neither been considered by the authorities nor by the Tribunal. From the record, it appears that neither of the parties placed on record relevant material and pleadings which could have been considered by Tribunal to look into this aspect of the matter. It appears that while passing the impugned order dated 1.11.2003/1.11.2004 this aspect has neither been considered by the authorities nor by the Tribunal. From the record, it appears that neither of the parties placed on record relevant material and pleadings which could have been considered by Tribunal to look into this aspect of the matter. If the respondent No. 2 would not have been entitled for regular appointment on the post of Head Clerk from date prior to his exercising option for appointment in NCR Head Quarter, in that case the petitioners would have been justified in repatriating respondent No. 2 on the ground that he was not a regular Head Clerk but if the respondent No. 2 have got regular appointment on the post of Head Clerk in the manner discussed above, the order impugned in the Original Application would be illegal or incorrect. 12. In the result, the writ petition partly succeeds and the order of Tribunal impugned in the writ petition is modified with the direction to the petitioners to consider as to whether the respondent No. 2 would have been entitled for regular appointment on the post of Head Clerk or Senior Clerk treating him as a regular Senior Clerk or Clerk with effect from 29/31.12.1990 or 1.12.1987 and on the basis thereof, consider his seniority in Engineering Section, Allahabad Division of Northern Railway and in case any person junior to him is found to have been promoted to the post of Head Clerk/Senior Clerk, or the vacancy was available whichever is later, the respondent No. 2 shall be considered for regular promotion to the respective post from such date and in case, he does not get regular appointment in the manner stated above, his repatriation in division may be maintained in the discretion of the competent authority. The petitioners are directed to consider the matter afresh in the light of the discussions made hereinabove and to pass a fresh order within three months from the date of production of certified copy of this order. 13. No order as to costs. ————