Sudhir Agarwal, J. - (1.) SRI A.P. Singh, learned counsel appearing for the respondents stated that supplementary counter affidavit filed on 08.12.2011 be ignored and is not placing reliance thereon. The Court thus proceeded by ignoring the said supplementary counter affidavit. Heard Dr. L.P. Mishra, learned counsel for the petitioner and Sri A.P. Singh learned counsel for the respondents.
(2.) THE writ petition is directed against the order dated 22.4.1991 (Annexure 7 to the writ petition) and also decision dated 25.3.1989 taken by U.P. Avas Evam Vikas Parishad, Lucknow (hereinafter referred to as "Parishad") referred to in the order dated 22.4.1991. The petitioner has also sought a mandamus commanding the respondents to treat the petitioner as a regular Class -III employee in the establishment of Parishad and to pay salary admissible to a Clerk i.e. in the Scale of 950 -1500 w.e.f. 1.1.1986 and 360 -550 w.e.f. 1.10.1983 and also as revised from time to time and not to appoint any person in the establishment of Parishad either in the Circle or Division or Sub Division before regularizing the petitioner as Clerk. Admittedly, petitioner was not engaged initially by any written order of appointment. He appears to have been engaged on daily wage basis without following the procedure prescribed in law. The petitioner claimed in para 1 of the writ petition that he was engaged as a Muster roll employee which fact has been admitted by the respondents in the counter affidavit, as is evident from para 7 of the counter affidavit. The respondent, however, further says that the petitioner was employed according to the availability of work and need.
(3.) THE case set up by the petitioner is that there is one post of Camp Clerk in each Sub -Division of the Parishad. The then Assistant Engineer -II, Basti wrote a letter on 3.12.1984 to respondent No. 5 intimating that there was no Camp Clerk in the said Sub -Division and therefore one Camp Clerk may be made available. The Superintendent of Works, Faizabad vide letter dated 11.4.1983 directed that one Vinod Kumar Srivastava, who was Store Keeper working in Sub -Division be deployed to perform duties of Camp Clerk. However, Sri Vinod Kumar Srivastava did not join to perform the duties of Camp Clerk and thereafter the petitioner was posted as Camp Clerk under Assistant Engineer -II, Basti w.e.f. 1.10.1983. He functioned as such till July, 1987 without any break. In support of the aforesaid averments, reference has been made to the then Assistant Engineer's letter dated 21.5.1986 (Annexure 2 to the writ petition) wherein it has been mentioned that in absence of any other employee, work of Office Clerk was taken from the petitioner and therefore, he is recommended for appointment as Assistant Grade III. Besides, in the office order dated 30.8.1990 issued by Sub Divisional Officer Basti, petitioner's duties were shown as Pairokar in Court cases. He also refers to a letter dated 7.6.1984 (Annexure 5 to the writ petition) whereby Assistant Engineer II, Katra Yojna Basti has given details of petitioner as Clerk working w.e.f. 1.10.1983 on daily wage basis. The petitioner requested the Superintendent Engineer to appoint him on routine grade clerk since has performed duties of Clerk on daily wage basis and the said application was duly recommended by the then Assistant Engineer -II. However, ignoring the claim of the petitioner for appointment on a Class III post, by means of the impugned order dated 22.4.1991, petitioner has been appointed as non regular work charged employee in the scale of 305 -390, which is a scale applicable to Class IV employee and the petitioner has been transferred and posted from Gorakhpur to Agra.;