IN THE HIGH COURT OF UTTARAKHAND, NAINITAL Writ Petition No. 1015 of 2009 (S/S) Smt. Parwati Devi W/o late Shri Indra Singh ……… Petitioner Versus State of Uttarakhand and others ……… Respondents. Dated:- 16th June, 2010 Hon’ble Tarun Agarwala, J. Heard Mr. Siddharth Bisht, the learned counsel holding the brief of Mr. Hari Om Bhakuni, the learned counsel for the petitioner and Mr. Paresh Tripathi, the learned brief holder for the State. 2. The petitioner’s husband was appointed as a Seasonal Collection Peon and, having worked for more than eight years, died on 16.12.2008. In the meanwhile, the petitioner’s husband had filed a writ petition no.301 of 2004 (S/S) in which an interim order dated 31st March, 2004 was passed restraining the respondents not to give any artificial break and continue to take work from the petitioner’s husband if the work was available. It is alleged that pursuant to the interim order, the petitioner’s husband continued to work till he died on 16.12.2008. Upon the death of the petitioner’s husband, the petitioner, being the widow of the deceased, applied for an appointment on compassionate grounds under the Dying-in-Harness Rules. This application was rejected by the impugned order on the ground that the petitioner’s husband was not appointed in a regular capacity. The petitioner has filed the present writ petition praying for a writ of certiorari for the quashing of the order dated 14.09.2009 passed by the respondent no.1. 3. The respondents have filed a counter affidavit admitting that the petitioner’s husband was appointed as a Seasonal Collection Peon and also admitted that he died in harness in the year 2008. The respondents, however, have taken a stand that the petitioner’s husband was not a government employee as defined under Rule 2 (a) of the U.P. 2 Recruitment of Dependants of Government Servants Dying In Harness Rules, 1974 (hereinafter referred to as ‘Rules of 1974’). Consequently, the petitioner was not entitled for being appointed on compassionate grounds. 4. A Seasonal Collection Peon is appointed under the Government Orders. Admittedly, there was a requirement of work and, on the basis of the requirement, the petitioner’s husband continued to work. The fact that the petitioner’s husband worked continuously for more than 8 years gives a clear indication of the requirement of a permanent nature of work and an irresistible conclusion is drawn that the work which the petitioner’s husband was performing was perennial in nature and that he was deemed to be working on a regular vacancy. Rule 5 of the Rules of 1974 contemplates the appointment of the spouse of a deceased government servant on compassionate grounds. Rule 2 of the Rules of 1974 defines the Government Servant, which is extracted hereunder. “2. Definition.-In these rules, unless the context otherwise requires: (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 years’ continuous service in regular vacancy in such employment.” 5. The aforesaid definition of a Government servant indicates that the Government servant must be employed in a permanent or in a temporary capacity and, if not regularly appointed, the Government servant must have put in three years of continuous service in a regular vacancy in such employment. 6. Admittedly, the petitioner’s husband had worked more than eight years and in that scenario, sub-clause (iii) of Rule 2(a) of the Rules of 3 1974 would come into picture, namely, that he was employed in a permanent capacity. In my opinion, a presumption would be drawn that the petitioner’s husband having worked continuously for more than eight years would have been deemed to have worked in a regular vacancy. In Santosh Kumar Mishra Vs. State of U.P. and others 2002 (1) U.P.L.B.E.C. 337, the Court while considering the matter of daily wager and the appointment of dependant on compassionate grounds held :- “16. It may also be taken note of that if daily wager or a workcharge employee is engaged against a particular duty or post, and that work is of perennial nature, the presumption would be that such an employee would be entitled for being treated to have been continuing against a regular vacancy.” 7. The aforesaid judgment is squarely applicable to the present facts and circumstances of the case. Similarly, in Meena Devi Chaudhary (Smt.) Vs. Chief Engineer, U.P. Public works Department, Lucknow and others 2000 (2) UPLBEC 1421, the Court while considering the case of the daily wager who died in harness, held that a daily wager who worked continuously and was being paid in the regular pay scale, would be treated as a Government Servant contemplated under Rule 2 of the Rules of 1974 and that the dependant would be entitled for consideration on compassionate appointment. In Saroj Devi (Smt) Vs. State of U.P. and others 1999 (2) UPLBEC 1404, the Court while considering the case of a casual or adhoc employee held that if a person worked for a long period against a substantive vacancy, his dependant would be considered for appointment on compassionate grounds. 8. In view of the aforesaid decisions, the Court finds that admittedly the petitioner’s husband had worked for more than 8 years and had died in harness. The fact that the petitioner’s husband had worked for more than eight years has not been disputed by the respondents and, 4 therefore, an irresistible conclusion is drawn that the work which the petitioner’s husband was performing was perennial in nature and that he was deemed to be working on a regular vacancy. The petitioner is, accordingly, entitled to be considered for appointment on compassionate ground under the Rules of 1974. The impugned order cannot be sustained and is quashed. The writ petition is allowed. A mandamus is issued commanding the respondents to consider the application of the petitioner for appointment on compassionate grounds on merit within three months from the date of production of a certified copy of this order. (Tarun Agarwala, J.) Dated 16.06.2010 LSR 5