IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 997 (SS) of 2010 Smt. Bimla Devi …Petitioner Versus State of Uttarakhand and others …Respondents Mr. C.D. Bahuguna, learned counsel present for the petitioner. Mr. N.P. Sah, learned Standing Counsel present for the State of Uttarakhand. Hon’ble Sudhanshu Dhulia, J. (Oral) 1. Heard Mr. C.D. Bahuguna, learned counsel present for the petitioner and Mr. N.P. Sah, learned Standing Counsel present for the State of Uttarakhand. 2. The husband of the petitioner was working as a “Beldar” in a work charge establishment in Public Works Department, Uttarakhand. He died while in harness on 09.07.2005. The petitioner being the wife of said employee was appointed on compassionate ground on 30.09.2006 by the Superintending Engineer, Provincial Division, Public Works Department, Nainital. Consequently the petitioner joined services on daily rate basis considering the fact that the husband of the petitioner was not in a regular establishment. The husband of the petitioner, though while he was in service, had filed a writ petition being writ petition no. 1424 (SS) of 2003 challenging his cancellation of regularization in service as earlier he had been regularized. The said writ petition was allowed by a learned Single Judge on 25.11.2003. Consequently, the State of Uttarakhand filed a Special Appeal being Special appeal No. 64 of 2006, where the order of the learned Single Judge was set aside on 09.01.2009 on the ground that the regularization of the petitioner’s husband was not in accordance with law as it was done in excess of the existing posts. In other words, the cancellation of the 2 regularization of service of the petitioner including similarly situated “Beldars” who were regularized against non-existing vacancies was held to be correct and the order of the learned Single Judge was set aside. However, it is also true that the Division Bench of this Court also noticed the fact that during the pendency of the case many vacancies still existed in the department and therefore, directions were also issued in the said special appeal to the respondents to consider the regularization of such employees which include the petitioner’s husband. In consideration of this direction, the existing employees were regularized but the petitioner (husband of the present petitioner) could not be regularized, as during this period the husband of the petitioner passed away. 3. However, it is admitted that the case of the petitioner’s husband was absolutely similar to those who now stood regularized, as after the order of the Division Bench of this Court; the State of Uttarakhand took a decision to regularize such similarly situated “Beldars” as the petitioner. Meanwhile petitioner’s husband died and the petitioner was given the appointment on daily rated basis. Hence she filed present writ petition stating that she should not be treated as work charge employee but may be treated as regular employee as her husband was regularized in service. Therefore, she pleaded that appointment under the Provisions of the U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 (hereinafter referred to as the “Dying in Harness Rules”) is always regular in nature, as such, she cannot be appointed on daily rate basis or temporary basis but only on regular basis. 3 4. Be that as it may, the State in its counter affidavit filed a letter dated 06.07.2009 (Anneuxre-3 to the counter affidavit) of the Superintending Engineer, Second Circle, Public Works Department, Nainital whos has also recommended the case of the petitioner for regular appointment under “Dying in Harness Rules”, as similarly situated as petitioner have been regularized. 5. In view of the above, this Court is of the considered view that a mandamus must be is issued to the respondents to consider the case of the petitioner for regular appointment in Public Works Department. The writ petition is disposed of with the direction to respondent no. 4 to consider the appointment of the petitioner on a regular vacancy, in view of what has been stated above. Needful be done as expeditiously as possible but within a period of six weeks from today. 5. With the aforesaid direction, the writ petition is allowed. 6. No order as to costs. (Sudhanshu Dhulia, J.) Dated: 18.10.2011 VKG