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Ram Autar v. State Of U.P. And Others - WRIT - A No. 57024 of 2003  RD-AH 3644 (28 September 2005)
Civil Misc. Writ Petition No. 57024 of 2003
State of U.P. and others..................................................Respondents.
Heard Sri B.S.Pandey, the learned counsel for the petitioner and the learned Standing Counsel appearing for the respondents.
The father of the petitioner was employed as a daily wager in the year 1982 and worked in that capacity till he died-in-harness on 8.3.2003. The petitioner applied for an appointment on compassionate ground under the Dying-in-Harness-Rules. This application remained pending and consequently, the petitioner approached this Court by filing the present writ petition for a writ of mandamus commanding the respondents to appoint the petitioner on a Class-IV post.
A counter affidavit has been filed by the respondents stating that the petitioner's father worked as a daily rated employee and that his services was not regularised and therefore the petitioner's father was not a Government servant as contemplated under the Dying-in-Harness Rules, 1974. Consequently, the benefit under the Dying-in-Harness Rules could not be given to a dependent of a daily wager. In my opinion the stand adopted by the respondents is patently erroneous.
Section 2(a) of the U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 states as under:-
"(a) Government Servant" means a Government servant employed in connection with the affairs of Uttar Pradesh who--
(i) was permanent in such employment; or
(ii) though temporary had been regularly appointed in such employment; or
(iii) though not regularly appointed, had put in three year' continuous service in regular vacancy in such employment.
Explanation- "Regularly appointed" means appointed in accordance with the procedure laid down for recruitment to the post or service, as the case may be.
From the aforesaid, it is clear, that if an employee who had not been regularly appointed but had put in three years' of continuous service in a "regular vacancy", the dependent of such an employee would be entitled to the benefit under the Rules of 1974. The question is, what meaning should be attributed to the words 'regular vacancy'. If a daily wager is engaged and that work is of a perennial nature, the presumption would be that such a daily wager would be entitled to be treated as working in a regular vacancy.
In Smt. Pushp Lata Dixit vs. Madhyamik Shiksha Parishad and others, 1991(2)ALR 509, the person had worked for 17 years as a paid apprentice. This court held that he was entitled to be appointed on compassionate ground under the Dying-in-Harness Rules.
In Smt. Maya Devi vs. State of U.P. and others, 1998(79) FLR 608, it was held that an employee working on daily wages for 10 years, his widow was entitled to be given an appointment on compassionate ground.
In Saroj Devi(Smt.) vs. State of U.P.and others 1999(3) ESC 2187, it was held that a dependent of a temporary employee working for 11 years was entitled to the benefit of the Dying-in-Harness Rules.
In Santosh Kumar Misra vs. State of U.P. and others, 2002(1)UPLBEC 337, it was held that a daily wager working for 13 years would be treated to have been continuing against a regular vacancy.
In Sunil Kumar vs. State of U.P. and others, (2003)1 UPLBEC 480,the employee had worked for 13 years as a daily wage employee against permanent requirement of the work, his dependants were entitled to the benefit of an appointment under the Dying-in-Harness Rules.
In the case of Vijai Yadav vs. State of U.P. and others, decided on 25.7.2005, in Civil Misc. Writ Petition No.51469 of 2005, it was held that a dependant of a part time Tube-well Operator was eligible for being appointed on compassionate ground under the Dying-in-Harness Rules inasmuch as a part time Tube-well Operator having worked continuously for several years would be deemed to have been worked in a regular vacancy and would be a Government Servant. The said decision squarely applies to the present facts of the case.
In the present case the petitioner's father had worked for 20 years as a daily rated workman, therefore, he would be deemed to have worked in a regular vacancy. The petitioner's father would be treated to be a Government servant as defined under Section 2(a) of the Dying-in-Harness Rules, 1978. Consequently, the petitioner would be entitled to the benefit of the Rules of 1974.
In view of the aforesaid, the writ petition is allowed. A mandamus is issued to the respondents to consider the appointment of the petitioner on compassionate ground in the light of the observations made above.
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