Dinesh Kumar Shukla vs State of U.P.and Others

R. B. Misra, J.—Heard Smt. Anita Tripathi, learned Counsel for the petitioners as well as Sri S.S. Sharma, learned Standing Counsel along with Sri Raj Kumar, learned Standing Counsel for the respondents.

In this petition the order dated 3071999 (Annexure8 to the writ petition) has been challenged whereby the representation dated 1931999 of the petitioner was rejected. Further prayer has been made seeking mandamus directing the respondents not to interfere in the working and functioning of the petitioner.

It appears that the petitioner was initially appointed on 16 51988 as a Junior Clerk in the office of Zila Nirvachan Adhikari/District Magistrate, Gorakhpur temporarily for some period. The petitioner has requisite qualification as required under Uttar Pradesh Election Department District Level (Ministerial)Service Rules 1992 and as contemplated under Rule, 8 of (First Amendment) Rules, 1995 on 15111995. The above Rules shall be called hereinafter as ''Rules 1995''. The petitioner was also allowed three increments and has unblemished satisfactory service, even the District Election Officer and Dy. Election Officer have issued letter of appreciation to the petitioner on many occasions which are clearly indicative that the work and conduct of the petitioner had all along been satisfactory. The petitioner was also allowed participation in the Lok Sabha General Election of the year 1997, however on being deprived from the work the petitioner filed a Writ Petition No. 3204 of 1999 before this Court with prayers for issuance of a writ, of mandamus directing the respondents to permit the petitioner to work as Junior Clerk after 3061998 and to regularise the petitioner as junior clerk. It was also averred by petitioner in above Writ Petition No. 3204 of 1999 that the number of posts were still lying vacant and the Chief Election Commissioner had issued notification dated 7121998 whereby several junior clerks in the election department were been promoted to the post of senior clerk, therefore, the petitioner had claimed for preference in respect of giving appointment to the post of junior clerk by virtue of having requisite experience. The Writ Petition No. 3204 of 1999 was allowed on 19 21999 with the observations which reads as below:

�In view of what has been said above, the present writ petition is allowed and a writ in the nature of mandamus is issued directing Mukhya Nirvachan Adhikari, Government of Uttar Pradesh, Lucknow, Respondent No. 2 to consider the case of the petitioner in the list of the division bench judgment dated 2491992 passed in Civil Misc. Writ Petition No. Nil of 1992 (Behraichi Prasad and others v. Mukhya Nirvachan Adhikari, Lucknow and others). The petitioner shall file a representation before Respondent No. 3 Zila Nirvachan Adhikari, District Magistrate, Gorakhpur within a period of one months from today provided a certified copy of this judgment is applied by him within a week from today, which if applied, shall be given to learned Counsel for the petitioner within two weeks from today on payment of usual charges. The petitioner shall furnish his address to the concerned authority so as to enable him to communicate the decision. Respondent No. 2 is directed to decide the representation within three months from today taking into account all the relevant facts as well as relevant decision dealing with the subjectmatter and pass a reasoned and speaking order, which shall be communicated to the petitioner by registered acknowledgement due post within two weeks of passing of the order.

No costs.�

In order to appreciate the issue in question it is pertinent to refer para 4 and 5 of the judgment dated 2532003 passed in Writ Petition No. 46347 of 1999 Rakesh Kumar Srivastava v. Mukhya Nirvachan Adhikari and Ors., and Writ Petition No. 46349 of 1999 Hanshraj v. The Mukhya Nirvachan Adhikari and Ors., which reads as below:

�(4) In order to appreciate the facts and circumstances of this case it is pertinent to refer the facts of similarly situated persons including Bahraichi Prasad and others v. Mukhya Nirvachan Adhikari and others, who challenged the Uttar Pradesh Election Department District Level (Ministerial) Service Rules, 1992 in Writ Petition No. 42052 of 1992 and sought the writ of mandamus for regularisation of their service. This Court (D.B.) by its order dated 2491992 while upholding the validity of Rules 1992 has been pleased to direct in the operative part which reads as bellow:

�This being so, we direct the authority concerned to consider the claim of the petitioners for regularisation on the basis of their past service and performance. The petitioners shall make suitable representation jointly or individually to the authority concerned within two weeks from today and the authority concerned shall decide the same within three months from the date of its shall not appear in the interview.�

In view of the order the representation of Bahraichi Prasad and others were rejected by District Election Officer, Basti on 31 121992 which was again challenged before this Court by way of Writ Petition No. Nil of 1993 Bahraichi Prasad and others v. Zila Nirvachan Adhikari, Basti and others, and the same was dismissed with directions on 2491992 passed above, against which a Special Appeal No. 834 of 1992 Bahraichi Prasad and others v. State of U.P. and others, was preferred. The Division Bench of this Court on 27 91994 while allowing the special appeal has noted down the observation of this Court (D.B.) passed on 2491992 in Writ Petition No. 42052 of 1992 and set aside the order dated 249 1992 of High Court (Single Judge) as well as the order dated 31 121992 of District Election Officer, Basti and directed the authorities including District Election Officer and Mukhya Nirvachan Adhikari to consider the cause of the writ petitioners for regularisation of their service strictly of the judgment of this Court passed on 2491992 in Writ Petition No. 42052 of 1992.�

�(5) In view of the above observations made in Bahraichi Prasad (supra) it is clear that Bahraichi Prasad and other similarly situated persons were not to face written examination or interview for regularisation as junior clerk under District Election Officer.�

In the light of the order dated 1921999 passed in present Writ Petition No. 3204 of 1999 the petitioner in his representation dated 1931999 submitted that he has worked for 4 years, 1 months and 25 days from 1651988 of 3061998 in different periods within a span of 10 years and the petitioner was to be considered according to the order dated 2491992 High Court passed in Writ Petition No. 42052 of 1992 as well as the order dated 2791992 passed in special Appeal No. 834 of 1993. The representation of the petitioner was dismissed on 30th July 1999 against which the petitioner has filed the present writ petition.

It has also been contended on behalf of the petitioner that the petitioner was appointed through a selection process including the written examination, typing test and interview and his work and conduct was found satisfactory by the respondents, therefore, he was not again expected to undergo the written examination, interview or to get his name sponsored by the employment exchange again for securing the deployment. While regularising the services of the petitioner, the respondents have only to see the past conduct and performance of the petitioner which was satisfactory too as appeared from the letter of appreciation issued by the respondents from time to time. The petitioner has further contended that the respondent No. 2 has thus no authority under law to review the judgment of this Court by ignoring to consider the aspects of past conduct and experience of petitioner and by taking altogether a different parameter other than what was prescribed by this High Court. According to the petitioner the respondent No. 2 instead of adopting fair policy of appointment, in order to extend benefit to the persons of his choice, is making illegal appointment surreptitiously in utter disregard of the Rules 1995 and also guide lines framed by this Hon''ble Court in the case of Bahraichi Prasad.

The petitioner has stated in paras 40 and 41 of the writ petition which reads as below:

�Para 40: That the petitioner in this context may mention the name of the Mohd. Salim son of Sri Hasan Raza, placed at Serial No. 9 in the Order dated 30th March, 1996, his services have been regularised and his service book has been prepared whereas the petitioner who has placed at Serial No. 2 his claim has been ignored. The reasons behind regularisation of Services of Mohd. Salim is that he is brother of Noor Mohammad, the Respondent No. 2, who in utter violation of the Judgment of this Hon''ble Court has rejected the claim of the petitioner for being regularised on the post of Junior Clerk.�

�Para 41: That by the above act of the respondents the petitioner''s fundamental rights have been violated which is guaranteed under Article 14 of the Constitution of India,1950. It is the fact that a person who has worked only for 11 months has been given job on regular basis but petitioner''s claim has been ignored by the respondents though he is one of the senior most employees of the department and in the seniority list only one person is placed over and above the petitioner.�

The counteraffidavit and rejoinder affidavit have been exchanged. The contents of above paragraphs 40 and 41 were replied in para 24 of the counteraffidavit by saying that the services of Mohd. Salim was regularised through the competitive typing test made in accordance to the rules and these aspects have successfully been denied by the petitioner in para 19 of the rejoinder affidavit by asserting that since no selection process was ever made and therefore, no question and substance in the assertions of the Chief Election Commissioner that Mohd. Salim was appointed after declaring successful in the selection process. According to the petitioner it was not denied that Mohd. Salim is the brother of Sri Noor Mohammad of the then Chief Election Commissioner. It has also been contended on behalf to the petitioner that the Chief Election Commissioner being the appointing authority of Junior Clerks by notification dated 712 1998 promoted twenty five persons to the post of Senior Clerk (Annexure12 to the writ petition) and the vacancies were created by virtue of such promotions the availability of the vacancy of 25 vacancy as averred in para 38 of writ petition have not been denied by the respondents in the counteraffidavit. It has also not been denied by the respondents that Mohd. Salim is real brother of Noor Mohammad the Chief Election Commissioner.

I have heard learned Counsel for the parties and have perused the impugned order dated 3071999 in question under challenged and the following points could be high lighted:

(A) The impugned order though passed in detail however, while rejecting the representation, the Chief Election Officer under misconception had centred round by saying that if the petitioner is given appointment it shall open flood gate for the large number of persons and more than 100 such persons are to be given job those who have worked for short period only. Another ground of rejection of representation was that the petitioner is over age and has worked only for four years two moths and one day in past and the deployment of the petitioner was only for the special purpose during the election period and when the purpose and the work is over, the deployment of the petitioner was to be automatically come to at an end. It has also been indicated in the impugned order dated 3071999 that the petitioner has not rendered continuous service of three years which may be necessary for regularisation and the service of four years two months and one day rendered by the petitioner separately in the different period on absolutely temporary basis was not sufficient for regularisation.

(B) Sri Bahraichi Prasad and others similarly situated persons were also over age and the Uttar Pradesh Election Department District Level (Ministerial) Service Rules, 1992 was also considered by this Court while disposing the case of Bahraichi Prasad (supra) and the apprehension which prevailed in the mind of Chief Election Commissioner in reference to the facts of present case was also prevailing at that time in the same way and in similar terms in respect to the fact of the case of Bahraichi Prasad that many more persons might claim and come forward for regularisation. It is pertinent to note that Sri Bahraichi Prasad and similarly situated persons have also served intermittently in the past years in a span of decade in different periods, as such the cause of the petitioner cannot be said to be different from the case of Bahraichi Prasad (supra). When this Court had specifically observed in order dated 1921999 that the claim of the petitioner is similar to that of Bahraichi Prasad. It was argued on behalf of the State Government that when the ''Rules 1992'' is in existence no direction for recruitment or regularisation by this Court could be given de hors, the provisions and norms provided in the said ''Rules 1992''. Such submission may not be incorrect, be that it may, the issue in question was to be resolved in the light of decision of this Court given in Bahraichi Prasad (supra). The contention of learned Standing Counsel for the State that post is not available has been denied by the petitioner by saying that post are existing. It is remarkable to mention that the ''Rules 1992'' brought on 3061992, was already in existence at the time of passing of the order dated 2491992 in Writ Petition No. 42052 of 1992 of Bahraichi Prasad and others and after considering the ''Rules 1992'' the directions by this Court was passed in Bahraichi Prasad (supra).

Similar controversy arose in the above two Writ Petition No. 46346 of 1999 Rakesh Kumar Srivastava v. Mukhya Nirvachan Adhikari and others, and Writ Petition No. 46349 of 1999 Hanshraj v. Mukhya Nirvachan Adhikari were also decided by this Court on 2532003 with the following objections in paras 6 and 7 which reads as below:

�It is settled law that when the rules is in existence for recruitment, no regularisation or appointment could be made de hors the `Rules'', however, the present case in peculiar facts and circumstances is similar to that of Bahraichi Prasad and others and decision dated 2491992 in Writ Petition No. 42052 of 1992 and order dated 2791994 of special Appeal No. 834 of 1992 are binding on this Curt and in light of the directions given in case of Bahraichi Prasad (supra). The petitioner''s case was to be considered by respondents on the basis of his past performance in service. However, in the impugned order, the respondent (the Chief Election Commissioner) has not indicated anything about the quality of past service of petitioner e.g. satisfactory or unsatisfactory and has simply rejected the representation on irrelevant points by non application of mind in derogation to the directions given by this Court on 3131999 and has overlooked the observations in case of Bahraichi Prasad (supra). From this point of view the order dated 3071999 is set aside and the respondents are directed to consider the case of the petitioner for regularisation and pass appropriate order in view of the above observations made above within three months from the date of filing of the certified copy of this order before the respondents.�

It cannot be allowed to say by Chief Election Commissioner while rejecting the representation recruitment against certain vacancy was made in consonance to the ''Rules 1995'' however the petitioner did not apply and had not appeared. The applicability of the ''Ruels 1995'' has no relevance in the present case. More so, when the Chief Election Commissioner has done facouritism in appointing his own brother Mohd. Salim by a designed method in disregard to the judgment of this Court made on 2491992 in Writ Petition No. 42052 of 1992 and the order dated 2791994 of this Court passed in special Appeal No. 834 of 1992 and has adopted discriminatory attitudes. The order dated 30th July, 1999 is discriminatory devoid of merits illegal and in derogation to the directions of this Court has observed above.

In view of the observation made above the action of the Chief Election Commissioner is peculiar, unusual and disregard to the direction of this Court not legally sustainable and therefore, the order dated 3071999 is set aside and the respondents are directed to consider the case of the petitioner for regularisation and to pass appropriate order in view of the above observations made above before December 2003 provided the certified copy of this order is filed before the respondents within two months from today.

In view of the above observation the writ petitions are allowed. No order as to costs.