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Smt. Rajbala v. State Of U.P. & Others - WRIT - A No. 7592 of 2003  RD-AH 3532 (24 September 2005)
Civil Misc. Writ Petition No. 7592 of 2003
State of U.P. and others..................................................Respondents.
The petitioner's husband was appointed as a part time Tube-well Operator on 6.7.1998 and continued to work in that capacity till he died on 11.1.2002. This Court in the case of Sichai Mazdoor Sangh vs. State of U.P. and others, 1996(1)UPLBEC 9, held that a part time Tube-well Operator was entitled to be given the regular pay scale of a full time Tube-well Operator on the principle of equal pay for equal work. Based on this judgement, the petitioner's husband was receiving a regular salary as that paid to a full time Tube-well Operator.
Upon the death of the petitioner's husband, the petitioner applied for an appointment under the Dying-in-Harness Rules, which was rejected by the Executive Engineer by an order dated 27.3.2002. The petitioner also made a representation to the District Magistrate, inasmuch as, in the meanwhile, part time Tube-well Operators were posted by the District Magistrate as Gram Panchayat Vikas Adhikari. It transpires, that the District Magistrate also rejected the representation which was communicated by an order of the Superintending Engineer dated 15.7.2002. Consequently, the petitioner has filed the present writ petition.
The sole ground for the rejection of the claim for an appointment under the Dying-in-Harness Rules is, that the petitioner's husband was employed as a part time Tube-well Operator and the Rules of 1974 are not applicable to a part time employee. In Vijai Yadav vs. State of U.P. and others, decided on 25.7.2005, in Civil Misc.Writ Petition No.51469 of 2005 this Court held, that a part time Tube-well Operator working on a temporary post continuously for 18 years was deemed to have been working on a vacant post and that he would be deemed to be treated as a Government Servant and, therefore, his dependants were entitled to be given an appointment under the Dying-in-Harness Rules. The aforesaid decision is squarely applicable to the facts and circumstances of the present case. In view of the aforesaid, I hold, that since the petitioner's husband was working continuously for more than 14 years, he had worked in a regular vacancy and the petitioner's husband would be deemed to be treated as a Government servant. Consequently, the petitioner, being the widow, was entitled to be considered for an appointment on compassionate ground.
Accordingly the writ petition is allowed. The impugned orders dated 15.7.2002 and 27.3.2002 passed by respondent nos.3 and 4 are quashed. The matter is remitted back to the authority to reconsider the matter afresh and pass appropriate orders within two months from the date of production of a certified copy of this order in the light of the observation made above.
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