HIGH COURT OF UTTARANCHAL AT NAINITAL (Court’s order whether the case is or not approved for reporting.) (Chapter VIII Rule 32 (2)(b) Description of the case. No. W.P. No. 1448/04 (SS) Prakash lal Vs. State of Uttaranchal Principal chief conservator Approved for reporting. ______________________ No approved for reporting Date of Decision: 13.5.2005 Initial of Judge IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL WRIT PETITION NO. 1448 OF 2004 (SS) Prakash Lal, aged about 19 years, son of late Bahadur Lal, R/o Village Panchayat Ratanpur, Vikash Khand, Kotabagh, District Nainital. ……………Petitioner. Versus 1. State of Uttaranchal, through its Secretary, Ministry of Forest Civil Secretariat, Dehardun. 2. Principal Chief Conservator of Forest, having its office at Nainital, Conservator of Forest, Kumaon Region, Nainital, Divisional Forest Officer, Tarai Kandria Van Prabhag. ……………Respondents. Mr. A.K. Joshi,, learned counsel for the petitioner. Learned Standing counsel. Dated: 13.05.2005 Hon’ble Rajesh Tandon, J. By the present writ petition, the petitioner has prayed for a writ of certiorari quashing the order dated 11.02.2004 as well as for a writ of mandamus commanding the respondents to appoint the petitioner under the provision of Government Servant Dying in Harness Rules, 1974. Briefly stated, father of the petitioner was initially engaged on 8th February, 1982 as casual worker holding the post of Beat Watcher and was continued to the said post till 03.10.2003. On 3rd October, 2003, the father of the petitioner died in harness leaving behind the petitioner and his mother and two younger sisters. Learned counsel for the petitioner has submitted that the father of the petitioner has worked in the Department for more than twenty years but the services of the petitioner could not be regularized due to the paucity of the post till his death. 2 Petitioner has further submitted that his father was only the bread-earner in the family and due to his death the entire family is on the verge of starvation. Petitioner has passed Class 8th Examination and has alleged that he is fully qualified to be appointed on the class IV post. The application of the petitioner was rejected on 11th February, 2004. Respondents have filed counter affidavit, where he has stated as under:- “That in reply to the contents of paras 7 to 1 of the writ petition, it is submitted that Dying-in-Harness Rules 1974 are applicable only those employees who were regularized in the Department. In the present case the services of the petitioner were not regularized, therefore, petitioner is not entitled to appoint in place of his father. It is further submitted that the mother of the petitioner has moved an application, addressed to the respondent no.4, after consider an application filed by mother of the petitioner, has been rejected. That in reply to the contest of paras 12, 13 and 14 of the writ petition, it is submitted that the father of the petitioner was not regular employee in the respondents Department, hence the Dying in Harness Rules, 1974 are not applicable in the case of the petitioner. It is further submitted that these Rules are applicable only those employees who were regularized in the Department or appointed on the regular basis in the Department.” In Writ Petition No. 91 of (S/S) of 2003 Bhaguli Devi Vs. State of Uttaranchal and others, similar controversy arose, where the employee concerned has worked on daily-wage for about 16 years and this Court has held as under:- 3 “For the reasons recorded above, since the petitioners’ husband was continuing in employment for more than 16 years, petitioner is entitled 5 to get benefit of the Uttar Pradesh Recruitment of Dependants of Government Servants Rule 1974, which has been adopted by the State of Uttaranchal. In view of the above discussion, I direct the respondents Authorities to consider the claim of the petitioner for providing her appointment under Uttar Pradesh Recruitment of Dependants of Government Servants Rules 1974 within a period of six weeks from the date of production of certified copy of this order.” In Anju Misra v. General Manager, Kanpur Jal Sansthan, Kanpur 2004 (1) Page 201 after relying upon the judgment in Santosh Kumar Misra v. State of U.P. and others 2002 (1) UPLBEC, 237, it has been held as under:- “9. According to the submission of the learned Counsel for the State, a daily wager or work charge employee who is engaged by the State Government or any department of the State Government cannot be treated as a Government Servant within the definition of Rule 2 of the aforesaid Rules. Qualifying the above argument, the learned Counsel for the State further submitted that though an employee who is not regularly appointed is covered by the definition in view of sub- clause (iii) of Rule 2(a) but in that case such employee must have put in three years continuous service, that too in regular vacancy in such employment. Since, the petitioner’s father was earlier a daily wager or muster roll employee and later on worked as work charge employee, therefore, it cannot be said that he was appointed regularly or had worked in regular vacancy.” 4 “14. The practice of appointing daily wagers or work charge employees is very much prevailing in the State of Uttar Pradesh and instances are no less in number where the daily wager or work charge employees in the Government Department have been allowed to continue for years together, namely, 15 years, 20 years and 25 years or till they actually reach the age of superannuation to which they may not be entitled, not being a Government Servant but, they are disposed with their engagement or attaining the age of superannuation. The practice of appointing such daily wagers and work charge employees has constantly been a matter of great concern for the judiciary and for that matter, the Apex Court has many a times issued directions for framing schemes so as to accommodate all daily wagers of long standing duration and work-charge employees as a regular employees. It would be needless to mention that such a scheme has been ordered to be framed by the Court in the department of Rural Engineering Services in the Forest Department and many other department.” In Meean Devi Chaudhary v. Chief Engineer, U.P. Public Works Department, Lucknow (2002) 2 UPLBEC 1421, the said controversy has also been decided with the following observations:- “A women cannot be denied appointment under this Rule on the alleged ground that her deceased husband was not working on regular basis in view of Meena Devi Chaudhary v. Chief Engineer, U.P. Public Works Department, Lucknow (2000) 2 UPLBEC 1421 at 1422 (All).” Further in view of the judgment of the Apex Court in the case of Pushpa Lata Dixit vs. Madhyamik Shiksha Parishad and others 1991 (18) ALR 509 and Smt. 5 Sushma Gosain and others vs. Union of India and others, AIR 1989 S.C., 1976, so far as the appointment on compassionate ground should not be delayed as after the death of bread-earner, the whole family is starving. Similar view has been taken in the case of State of Manipur Vs. Thingujam Brojen (1996) 9 SCC Page 29, further in Smt. Saroj Devi Vs. State of U.P. 1999 (3) Educational and Service Cases Page 215, the benefit has also been extended to the temporary employees. In view of the aforesaid facts, respondents are directed to consider the application of the petitioner in pursuance of the statutory rules framed therein within a period of six weeks from the filing of the certified copy of the order. Subject to the aforesaid observations, writ petition is disposed of. (Rajesh Tandon, J.) Dated: 13.05.2005 Rathour