- (1.) BY means of this writ petition, the petitioner has prayed for a writ in the nature of mandamus commanding the opposite parties to pass appropriate order in pursuance to the Dying in Harness Rules for adjusting the petitioner on a regular post of Junior Clerk and grant him seniority from the date of his initial appointment on the post of Junior Clerk in the Directorate of Ayurvedic & Unani Services, with consequential benefits.
(2.) SUBMISSION of learned counsel for the petitioner is that petitioner's father was a Medical Officer in the Ayurvedic and Unani Services, U. P. who died on 24.6.1984 during service. The petitioner applied for appointment in the Department under Dying in Harness Rules. The petitioner was given appointment on 24.5.1995 on the post of Junior Clerk on a supernumerary post in the pay-scale of Rs. 950-1500 vide order dated 02.8.1996 the petitioner alongwith the post was transferred to the Head Office in the Directorate. Sub-clause (3) of Rule 8 of Dying in Harness Rules provides that in case no post is available then supernumerary post shall be created and the same shall continue till the availability of a regular post meaning thereby that a person appointed under Dying in Harness Rules on a supernumerary post shall be adjusted against the first available regular vacancy in the Department. The services of the petitioner are governed by the U. P. Ayurvedic and Unani Department Clerical Cadre Service Rules, 1991. The petitioner has been working since 1996 in the Directorate on the supernumerary post. Learned counsel further submitted that the seniority list of clerical cadre in the subordinate office under the Directorate was released on 11.11.2003 and a fresh list was released on 22.9.2009 in which petitioner's name did not find place as the petitioner belongs to the Directorate. It is also submitted by the learned counsel that till date the opposite parties have not released the tentative seniority list of the clerical cadre of the Directorate. The petitioner is working regularly since 1996 in the Directorate. Grievance of the petitioner is that two posts of junior clerk fell vacant due to promotion of Smt. Uma Bajpai and Sri Shiv Mangal Yadav to the post of Senior Clerk on 14.5.2003. The petitioner made representation for adjustment against one of the said vacancies in pursuance of the sub rule (3) of Rule 8 but petitioner's claim was ignored just to adjust one Km. Audrey Massey against the regular post who was appointed on the post of junior clerk vide order dated 01.12.1999 and was transferred from Govt. Ayurvedi and Unani Pharmacy, Lucknow vide order dated 24.5.2003 and posted as Junior Clerk in the Directorate. Neither the petitioner has been adjusted against a regular post nor his representations have been decided so far and as a result of which the prospects of confirmation and further promotion and other benefits like regular employee are being prejudicially affected. On the other hand, Km. Audreyh Massay (Daily Wages), Adarsh Veer Airya (Apprentice), Suman Agnihotri (Daily Wages), Bharat Bhushan (Class IV), Mohan Lal (Class IV), Chandrika Tripathi (Adhoc), Praveen Kumar Misra (adhoc), Subhash Kumar Pathak (adhoc) have been regularised between the year 2003 to 2008 in the Directorate ignoring the claim of the petitioner. Learned counsel for the petitioner very fairly submitted that he has no grievance against any person who have already been regularised but his case be considered for adjustment against the future post.
(3.) HEARD learned counsel for the parties and perused the record.;