IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 1259 of 2004 (S/S) Manoj Bisht S/o Late Madho Singh Bisth ..……… Petitioner Versus State of Uttarakhand and others ……… Respondents. Mr. B.D. Upadhyaya, Advocate for the petitioner. Mr. K.C. Tiwari, Brief Holder for the respondents. Hon’ble Tarun Agarwala, J. Heard Shri B.D. Upadhyaya, the learned counsel for the petitioner and Shri K.C. Tiwari, the learned Brief Holder for the respondents. The petitioner’s father was appointed as a daily wager in the year 1983 in the Forest Department and having worked for more than 15 years died in harness on 14.06.1998. The petitioner, being the son of the deceased, immediately applied for an appointment on compassionate grounds under the Dying-in-Harness Rules. This application remained pending and, eventually, when no action were taken by the respondents, the petitioner filed the present writ petition praying for a writ of mandamus commanding the respondents to appoint the petitioner under the Dying-in- Harness Rules. The respondents have filed a counter affidavit admitting that the petitioner’s father was appointed as a daily wager in the Forest Department in the year 1983 and also admitted the fact that he died in harness in the year 1998. The respondents, however, has taken a stand that the petitioner’s father was not a government employee as defined under Rule 2 (a) of the U.P. Recruitment of 2 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. Having heard the learned counsel for the parties, the Court finds that the petitioner is entitled for the appropriate relief. For facility, Rule 2 (a) of the Rules of 1974 is quoted 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.” A perusal of the aforesaid rules indicates that a Government Servant includes a person who was employed in a permanent capacity or on a temporary basis being regularly appointed and though not regularly appointed had put in three years of continuous service in a regular vacancy in such employment. In Smt. Maya Devi Vs. State of U.P. and others, F.L.R. 1998 (79) 608, it was held that a person working on a daily basis for more than ten years would come under the category of clause (iii) of Rules 2 (a) of the Rules of 1974, i.e., even though not regularly appointed but had put in three years of continuous service in a regular vacancy. Similarly, in Bhaguli Devi Vs. State of Uttaranchal in Writ Petition No. 91 (S/S) of 2003, decided on 17th February, 2005, this Court held that the person working on a daily basis for 16 years amounted to a perennial nature of duty and 3 that there would be deemed presumption that such an employee would be entitled to have worked in a regular vacancy. Similar view was also held in Writ Petition No. 1448 of 2004, Prakash Lal Vs. State of Uttaranchal and another, decided on 13th May, 2005. In view of the aforesaid decisions, the Court finds that admittedly the petitioner’s father had worked on a daily basis continuously for more than 15 years and had died in harness. The fact that the petitioner’s father had worked for 15 years has not been disputed and, therefore, an irresistible conclusion is drawn that the work which the petitioner’s father was working was the perennial in nature and that he was deemed to be working on a regular vacancy. The respondents have nowhere stated in their counter affidavit that the petitioner’s father was not working on a regular vacancy. In view of the aforesaid, 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 31.05.2010 Shiv