R.B.MISRA, J. - (1.) 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.
(2.) IN this petition the order dated 30-7-1999 (Annexure-8 to the writ petition) has been challenged whereby the representation dated 19-3-1999 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- 5-1988 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 15-11-1995. 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 30-6-1998 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 7-12-1998 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- 2-1999 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 24-9-1992 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 subject-matter 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.”
(3.) IN order to appreciate the issue in question it is pertinent to refer para 4 and 5 of the judgment dated 25-3-2003 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 24-9-1992 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- 12-1992 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 24-9-1992 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- 9-1994 while allowing the special appeal has noted down the observation of this Court (D.B.) passed on 24-9-1992 in Writ Petition No. 42052 of 1992 and set aside the order dated 24-9- 1992 of High Court (Single Judge) as well as the order dated 31- 12-1992 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 24-9-1992 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.” ;