Hon'ble Shashi Kant Gupta, J. - (1.) THIS writ petition has been filed by the petitioner for the following relief: "to issue a writ of mandamus directing the respondents to accommodate the petitioner on the post of Class IV employee existing in the department in pursance of the order passed by this Hon'ble Court. "
(2.) THE brief facts emerging from the writ petition are as follows:- The petitioner was engaged as waterman on daily wages in the Sub Registrar Office, Dhampur, District Bijnor on 1.1.1983 and since then he was discharging his duties as waterman in the said office. The petitioner from time to time had also worked against the leave vacancy of Class, IV employee occurred in the department. The respondent no.1 issued a Circular dated 12.08.1998 whereby all concerned authorities were directed not to engage any outsider as waterman or for any other purpose, however, if any such person was already working he should be immediately. discontinued. In pursuant to the said order, respondent no. 4 discontinued the engagement of the petitioner as waterman in Sub Registrar Office, Dhampur, hence the petitioner filed a Writ Petition No.35179 of 1998 and this Hon'ble Court passed the following order:- "Heard the parties counsel and I have gone through the record. It has been admitted by the learned counsel for the petitioners that the petitioner no. 1 has been working as Water-man in the establishment of the respondents fr4om January 1983 while the petitioner no.2 had been working from September, 1990. It is not disputed that the petitioners are not Government servants and they are not on regular establishment of Sub Registrar. They are casual workers appointed on fixed wages. Their services have been terminated on the ground that no such appointment be made in future from outside and those who are already working may be ceased to work. It has been submitted by the the learned counsel for the petitioner that the post of Water man still exists in the department and it is, therefore, directed 1 All] Rafi Abbas V. State of U.P. and others that in case such post exists in the Department, the petitioner shall be accommodated in the view of the fact that they have served for a long time in the department. With these observation, petition is disposed of finally" It is further pleaded in the writ petition that despite the order passed by this Court the authority concerned did not accommodate the petitioner. Hence this writ petition.
(3.) IN para 5 of the counter affidavit it has been stated that the petitioner was only engaged on casual basis as a waterman on fixed wages and it was further pleaded that petitioner did not work continuously but was engaged on casual basis from time to time as and when necessity arose. It was further pleaded that petitioner never worked or treated as daily wager on the post of Class IV employee and in the year 1998 when the necessity of engaging him ceased, he was discontinued. It was further pleaded in para 4 of the counter affidavit that there is no post of waterman existing as such the order dated 10.4.2002 can not be implemented. The supplementary counter affidavit was also filed by the respondents and in para 3 and 4 it was stated as follows:- "3- The petitioner has made a prayer for directing the respondents to accommodate the petitioner on class IV posts of the department. It is submitted that the petitioner was actually a part time casual worker and engaged for few hours in a day for filling water pot. This engagement was never made against any substantive vacancy of the department and never made adopting the selection procedure in any of the provisions of the existing service rules. 4- The petitioner's prayer made in the writ petition are not admitted as separate provisions have been provided for appointment on the Class IV posts of the department and the petitioner can apply in case of vacancy if eligible and he fulfills the criteria." In reply to para 3 and 4 of the supplementary counter affidavit, petitioner filed supplementary rejoinder affidavit and in para 4 and 5 it was stated as follows:- "4- That in reply to averments made in para-3 of the affidavit it is submitted that the petitioner had worked continuously as an Class IV employee in the department since 1983 till 1998. It is further submitted that the respondents are still adopting the pick and choose policy for regularizing the services of the workers who were engaged in the same capacity as of the petitioner. Therefore, the averments made to the contrary in the para under reply are not correct and they are denied. 5-That in reply to the averments made in para-4 of the affidavit, it is submitted that the petitioner as stated above, has continuously worked for last 15 years. Therefore, in view of the said fact he is eligible for being appointed and to get regularized his services as class IV employee in the department." ;