IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 312 (SB) of 2005 State of Uttaranchal and another …Petitioners Versus Meera Devi and another …Respondents Shri Subhash Upadhyay, learned Brief Holder for the State/petitioners. Shri M.C. Pant, learned counsel for the respondent no. 1. Hon’ble B.C. Kandpal, J. Hon’ble V.K. Bist, J. (Per B.C. Kandpal, J.) By way of this petition, the State of Uttarakhand has sought the relief for issuing a writ in the nature of certiorari quashing the award-dated 17.03.2005, which is contained as Annexure-1 to the writ petition, passed by the State Public Services Tribunal in Claim Petition No. 100/T/02 Meera Devi Vs. State & others. Brief facts of the case gave rise to the present petition are that husband of respondent no. 1 (Meera Devi) was engaged as daily wager in Construction Division, P.W.D. Khatima, Nainital and expired in an accident on 08.02.1995 and after his death, the respondent no. 1 applied for the job under the U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974. Respondent no. 1 was given appointment in place of her husband by way of an oral order as ‘Beldar’ and she continued on that post for sometime. Thereafter her services were terminated by an oral order dated 25.01.1996. Hence claim petition was filed by respondent no. 1 challenging the oral order of termination dated 25.01.1996. Learned Tribunal after having considered the entire material available on record and after hearing learned 2 counsel for the parties allowed the claim petition and observed that the services of the respondent no. 1 (Meera Devi) were wrongly terminated. The Tribunal further observed that respondent-Meera Devi is entitled to be appointed under the U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 and directed the State Government to provide the employment to Meera Devi accordingly vide judgment and order dated 17.03.2005. Feeling aggrieved by the aforesaid judgment and order-dated 17.03.2005, the State has preferred this writ petition before this Court, which has been placed before us for final determination. Heard Shri Subhash Upadhyay, learned Brief Holder for the State/petitioners and Mr. M.C. Pant, learned counsel for the respondent no. 1 and perused the record. Learned Brief Holder for the State at the very outset has referred the judgment of the Division Bench of this Court passed in Special Appeal No. 153 of 2006, State of Uttarakhand and others Vs. Smt. Brijesh Kumari dated 12.09.2008, thereby observing that the deceased being a daily wager could not come within the definition of Government Servant as occurring in Rule-2 of the U.P. Recruitment of Dependants of Government Servants Dying-in-Harness Rules, 1974. The Division Bench has categorically observed in the aforesaid referred judgment in paragraph-5 as follows: “The clear and unambiguous language employed in Clause (iii) suggests that the person 3 concerned should have put in at least three years’ continuous service in a regular vacancy. A regular vacancy by the very nature of its connotation is a substantive vacancy against which a person may be employed even though not on permanent or temporary basis. A Daily Wager, by the very nature of his appointment, cannot be termed to be working or employed on the regular vacancy because the very nature of appointment of Daily Wager is not having any nexus or relation with any vacancy as such, what to speak of a regular vacancy. In none of the cases referred in the impugned judgment, has the aforesaid aspect been taken into consideration.” It is, therefore, quite clear that the Division Bench of this Court has categorically held that the daily wager does not come within the definition of Government Servant in view of the definition occurred in Rule-2 under the Dying in Harness Rules. Therefore, there was no question for issuing any direction by the Tribunal for appointment of respondent- Meera Devi on compassionate ground under the U.P. Recruitment of Dependants of Government Servants Dying-in- Harness Rules, 1974. The direction issued by the Tribunal to the State Government for providing the job to respondent- Meera Devi under the Dying in Harness Rules is absolutely against the settled principles of law. The Public Service Tribunal has also ignored the provisions of Rule-4 (1) of the U.P. Public Services Tribunal Act, 1976, which is quoted below:- “4. Reference of claim to Tribunal.-(1) Subject to the order other provisions of this Act, a person who is or has been a public servant and is aggrieved by an order pertaining to a service matter within the jurisdiction of 4 the Tribunal, may make a reference of claim to the Tribunal for the redressal of his grievance. Explanation.- For the purpose of this sub-section “order” means an order made by the State Government or a local authority or any other Corporation or company referred to in clause (b) of Section 2 or by an officer, committee or other body or agency of the State Government or such local authority or Corporation or company: Provided that no reference shall, subject to the terms of any contract, be made in respect of a claim arising out of the transfer of a public servant.” It is quite clear from the perusal of Rule-4 that the Tribunal does not have any jurisdiction to proceed with the matter for granting the relief under the provisions of U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 and thus does not have any power to issue the direction to the State Government for providing the job to respondent-Meera Devi under the Dying in Harness Rules. The direction issued by the Tribunal being against the absolute provisions of law cannot be said to be sustainable in the Eye of Law. For the reasons stated above, we set aside the impugned judgment and order dated 17.03.2005 passed by the Public Services Tribunal. Consequently, the claim petition filed by Meera Devi stands dismissed. However, respondent-Meera Devi is at liberty to seek the redress of her grievance by approaching appropriate authority as per the law against her oral termination. (V.K. Bist, J.) (B.C. Kandpal, J.) VKG 17.12.2009