R.R.K.Trivedi - (1.) IN this petition by order dated 19-11-1990 learned Standing Counsel was granted six weeks' time to file counter affidavit. However, no counter affidavit was filed. The case came up before the Court on 20-1-1992 on which date respondents nos. 6 to 10 were allowed to be deleted from the array of the parties and learned Standing Counsel was granted three week's further time to file counter affidavit by a stop order. However, no counter affidavit could be filed. The case was listed before me on 28-4-1993 and on the request of learned Standing Counsel, it was again adjourned for 4-5-1993 but in spite of this last opportunity granted, no counter affidavit has been filed. A supplementary affidavit was filed by petitioner annexing therewith the list of seniority prepared for the applicants-Amins on the basis of the first appointment. Learned Standing Counsel has not requested for any opportunity to file counter affidavit to this supplementary affidavit. A questionnaire obtained from Tahsildar Sadar, Tahsil Mirzapur has also been filed showing that Vijai Tiwari and Vishwanath Singh, Collection Amins, did not work in the year 1986 on their post. Learned counsel for petitioner and learned Standing Counsel have agreed that petition may be decided finally on merits at this stage,
(2.) FACTS giving rise to this petition are that in Mirzapur district proceedings for selecting Collection Amins were initiated and applications were invited. Petitioner also applied and appeared in the written test in which it is claimed that he qualified and thereafter he was called for interview by letter dated 29-11-1976, which is Annexure I to the writ petition. Under this letter, petitioner was to appear before the Selection Committee on 3-12-1976. Petitioner appeared before the Selection committee and thereafter he was appointed as Amin and posted in Tahsil Sadar with effect from 20-12-1976. It has also been stated that petitioner was already working on the post of Collection Amin with effect from 7-1-1976. On the basis of the aforesaid written test and interview a seniority list was prepared of all the persons who were selected In this list petitioner stood at serial no. 38. Seniority was determined on the basis of the date of joining the past before selection proceedings. Respondents nos. 3 to 5, however, on 19-10-1986, issued appointment letter appointing eleven persons, including Vidya Bhan Upadhyaya, mentioned at serial no. 40, and Brigunath Upadhyaya, mentioned at serial no. 74. The order dated 19-10-1986 has been filed as Annexure 3 to the writ petition. The petitioner being senior to aforesaid two persons filed a claim petition before respondent no,. 1 alleging discrimination and challenging action of the respondents in appointing juniors on regular basis and ignoring the claim of the petitioner illegally., This claim petition was registered as Claim no. 226/1 of 1989. The claim of petitioner was contested by the respondents nos. 2 to 5.The U. P. Public Services Tribunal, by its judgment dated 9-8-1990, rejected the claim of the petitioner, aggrieved by which the present petition has been filed. Before petitioner filed his claim petition, twelve persons similarly situated had already filed claim petition! no. 16/? of 1987. In this claim petition the grievance raised was the same that persons who were mentioned below the petitioners of that claim petition, were illegally regularised by order dated 19-10-1986. The Tribunal, by order dated 31-8-1990, allowed the claim petition and directed to appoint the twelve petitioners in that claim petition on regular basis. Learned counsel submitted that the same Tribunal by the impugned order illegally rejected the claim of the petitioner though there was no difference in the facts of the two claim petitions. Learned counsel has submitted that the order dated 31-8-1990 was binding on the respondents and the claim of petitioner ought to have been allowed. It has been further submitted that the learned Tribunal has illegally distinguished the case of petitioner on the ground that petitioner was not in service in 1986 for at least three years and hence there was no question of regularisation of his services. Learned counsel for petitioner has submitted that the Tribunal committed a manifest error of law in rejecting the claim of the petitioner on the aforesaid ground The petitioner and all other persons mentioned in the list were seasonal Collection Amins and they were not working on their post on regular basis., They were at the mercy of the authorities who were free to take or not to take work from them. Learned counsel for petitioner has submitted that there is nothing on record that petitioner was asked to work and he refused to work on his post: No order was ever passed deleting his name from the seniority list or directing that he is not available to work on his post and in these circumstances the distinction drawn by the learned Tribunal is wholly artificial and non-existent. Learned counsel has also relied on the questionnaire filed as Annexure 2 to the supplementary affidavit for showing that even other Collection Amins who could not work in the year 1986 have been regularised on the post. The names of the Collection Amins mentioned in the Questionnaire are Vijai Tiwari and Vishwanath Singh who were petitioners nos. 10 and 12 before the Tribunal in the earlier case. It has been submitted that petitioner has been illegally discriminated in the matter of employment and the action of the respondents is illegal and violative of Articles 14 and 16 of the Constitution of India.
(3.) LEARNED standing counsel, on the other hand, has justified the order of the Tribunal and has placed reliance in case of Zakir Husain v. Engineer in chief Irrigation Department, U. P. Lucknow, (1993) 1 UP LB EC 15. I have thoroughly considered the submissions of the learned counsel for parties and perused the material on record. There is no dispute that the claim of petitioner before the Tribunal was identical to that of the 13 petitioners in claim petition no. 16 of 1987 but for the alleged ground that petitioner was not working in the year 1986, he could not be refused the relief which was already granted in the earlier claim petition, hence the only question for consideration is about the fact as to whether the respondents were justified in not appointing petitioner on regular basis on account of the fact that he was not working in the year 1986.;