JUDGMENT Sanjay Misra, J.
1. Heard the learned counsel for the petitioner and the learned Standing Counsel appearing on behalf of the respondents.
2. By means of this writ petition the petitioner seeks quashing of order dated 25.1.2000 communicated by letter dated 28.1.2000 passed by respondent No. 2 (Annexure-12 to the writ petition) whereby the claim for appointment of the petitioner under Dying in Harness Rules, 1974 has been refused. It has been stated by the petitioner that in the aforesaid communication, no reason has been given for such denial and as such the same is liable to be quashed by this court. It is further stated that the petitioner is entitled for compassionate appointment in place of his deceased father who was a Tube-well Operator having been given appointment in the year 1987. The appointment letter dated 19.3.87 has been filed as Annexure-4 to the writ petition. The appointment was temporary for a period of three years and he could be considered for re-appointment. Prior to joining he was to be given fifteen days training and his salary was fixed at Rs. 299.00 per month. He was also entitled to leave as per conditions given in the appointment letter.
3. It has been stated that late Kashi Nath Chaube had filed a writ petition, No. 9507 of 1996 claiming parity of pay with other regular tube well operators in view of the decision of this court in Writ Petition No. 3558(S/S) 1992. By an order dated 20.5,92 he was posted as Tube-well Assistant on a salary of Rs. 550.00 per month and the nature of his duties was also defined. It is stated that the petitioner's late father was posted as Gram Panchayat Vikas Adhikari by virtue of G.O. dated 30.6.99 and his name finds place at serial No. 40 of the list dated 97.99 prepared by the District Magistrate. It is the contention of the petitioner that his late father had worked for a period of nearly 12 years whereafter he died on 20.8.99 while in active service. The petitioner made an application dated 29.12.99 for [ appointment of the petitioner on compassionate ground claiming that the petitioner's qualification is Intermediate.
4. A counter affidavit has been filed by the respondent wherein the facts as averred by the petitioner have not been disputed. However, it has been stated that by virtue of Government Order dated 26.10.98 (filed as Annexure-4 to the counter affidavit) the dependants of part time Tube-well Operators are not entitled to the benefits of compassionate appointment under the Dying in Harness Rules, 1974.
5. Learned Standing counsel has placed reliance on the decision of Apex court reported in 2005 Vol.1 U.P LBEC page 1 State of U.P. and Anr. v. Ram Sukhi Devi and has contended that the G.O. dated 26.10.98 was not considered in that case by the High Court while passing an interim order and Hon'ble Supreme Court was pleased to set aside the order of High Court. Paragraph 6 of the judgment is quoted hereunder:-
"To say the least, approach of the learned Single Judge and the Division Bench is judicially unsustainable and indefensible. The final relief sought for in the writ petition has been granted as an interim measure. There was no reason indicated by learned Single Judge as to why the Government Order dated 26.10.1998 was to be ignored. Whether the writ petitioner was entitled to any relief in the writ petition has to be adjudicated at the time of final disposal of the writ petition. This court has no numerous occasions observed that the final relief sought for should not be granted at an interim stage. The position is worsened if the interim direction has been passed with stipulation that the applicable. Government Order has to be ignored. Time and again this court has deprecated the practice of granting interim orders which practically give the principal relief sought in the petition for no better reason than that of prima facie case has been made out, without being concerned about the balance of convenience, the public interest and a host of other considerations. (See Assistant Collector of Central Excise, West Bengal v. Dunlop India Ltd., , State of Rajasthan v. Swaika Properties; , State of U.P. and Ors. Visheswar, (1985) Suppl (3) SCC 590, Bharatbhushan Sonaeji Kshirsagar v. (Dr) Abdul Khalik Mohd. Musa and Ors., (1995) Suppl (2) SCC; Shiv Shanker and Ors. v. Board of Directors, U.P.S.R.T.C. and Anr.; (1995) Supp (2) SCC 726 and Commissioner/ Secretary to Govt. Health and Medical Education Department Civil Sectt. Jammu v. Dr. Ashok Kumar Kohli , JT 1995 J8) SC 403). No-basis has been indicated as to why learned Single Judge though the course as directed was necessary to be adopted. Even it was not indicated that a prima facie case was made out though as noted above that Itself is not sufficient. We, therefore, set aside the order passed by learned Single Judge as affirmed by the Division Bench without expressing any opinion on the merits of the case we have interfered primarily on the ground that the final relief has been granted at an interim stage without justifiable reason. Since the controversy lies within a very narrow compass, we request the High Court to dispose of the matter as early as practicable preferably within six months from the date of receipt of . this judgment."
6. Learned counsel for the petitioner on the other hand has argued that Rule 2(a) (iii) of the Dying in Harness Rules provides that even though an employee is not regularly appointed but he has put in three years service in regular vacancy the benefits of said Rules flow to the dependant of the deceased employee. Learned counsel for the petitioner has relied upon the decision of this court in Sunil Kumar v. State of U.P. reported in 2003(1) LBESR 410 Allahabad wherein this court considered the Dying in Harness Rules 1974 and held that a daily wage employee working against a permanent requirement of Nagar Nigam for more than three years in the vacancy existing for more than 13 years even though he continued to wear the badge of daily wage employee his dependant would be entitled for the benefits under Dying in Harness Rules. In the aforesaid case this court has considered the G.O. dated 18.10,98 to the effect that the benefits under Dying in Harness Rules would be applicable to work -charge employee. Learned counsel for the petitioner has placed reliance upon a decision of this court in Writ Petition No. 52395 of 2004( Shiv Sagar v. State of U.P. and Ors.) wherein "'it' was held by this court that although the petitioner's father was a Collection Amin and was not a permanent employee but had worked for .11 years even then the petitioner was entitled for the benefits of Dying in Harness Rules by virtue of Rule 2 (a) (iii) of the said Rules.
7. Learned counsel for the petitioner has also relied upon on the decision reported in 2005 (1) LBESR page 571 (Rajesh Kumar v. State of U.P. and Ors.) wherein the benefit of Dying in Harness Rules was Extended to the dependant of a deceased work charged employee.
8. It is admitted between the parties that the petitioner's father was initially appointed as part time tube well operator for a period of three years and that thereafter, his appointment was extended and he worked as such from 1987 upto 1999 without any break in service. In the year 1999 -he was sent to Gram Panchayat by virtue of a G.O. dated 30.6.99 and was designated as Gram Panchayat Vikas Adhikari and he worked till his death on 20.8.1999. The parent department of the petitioner's father was the Irrigation Department of the State and he has worked since 1987 continuously although he was designated as part time tuber well operator and since 1992 he was designated as tube well Assistant. He was retained in employment for nearly 12 years by the respondents for their requirement to operate tube wells. Such employment given by the respondents to the petitioner's father continued without break since 1987 to 1999. Having taken work and kept him on the rolls for such a long period of 12 years goes to show that the requirement of the respondents for the petitioner's services existed continuously and at no point of time the petitioners father was removed.
9. The Government order dated 26.10.98 has been brought on record by the respondents. It provides that there is no provision in the Dying in Harness Rules 1974 for giving benefit of the said Rules to dependants of part time tube well operators. On the basis of this government order the respondents have rejected the claim of the petitioner for appointment under the Rules. The order dated 25.1.2000 (Annexure- CA2) states that in view of the letter dated 7.11.98 the petitioner cannot be given benefit of compassionate appointment. The letter dated 7.11.98 refers to the G.O. dated 26.10.98. In the counter affidavit the plea taken by the respondents is to the same effect that the benefit of the Rules of 1974 cannot be extended to the petitioner in view of the G.O. dated 26.10.9$.
10. The Dying in Harness Rules 1974 have been made in exercise of powers under Article 309 of the Constitution of India. They came into force on 21.12.1973. Rule 2 defines Government servant as under:-
"2. Definitions:- 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."
11. It is apparent from a reading of Rule 2(a)(iii) that a person though not regularly appointed but has put in three years continuous service in a regular vacancy in such employment he would come ,within the ambit of definition of 'Government servant' for the purpose of these Rules. Such person need not be regularly appointed but must have put in three years continuous service in a regular vacancy. The Rules no where provide the specific categories of persons who can avail benefit of the Rules. The provision in the Rules are applicable to such persons who may be covered within the definition of 'Government servant' as defined in Rule 2(a). Therefore, in order to be covered under the definition of 'Government servant' for the purpose of these Rules the conditions as contemplated therein have to be satisfied. The G.O. dated 26,10.98 states that part time tube well operators are not entitled to the benefit of the Rulers of 1974 in as much as there is no provision in the said Rules relating to part time tube well operators. The G.O. has been issued on the aforesaid reason alone.
12. Whether a part time lube well operator would satisfy the conditions to be included in the definition of 'Government Servant' as defined in the Rules of 1974 would depend on the facts of the case wherein such claim is made for taking benefit of the Rules of 1974. The claimant would have to demonstrate that the deceased employee satisfied the requirements of Rule 2 (a) (iii) and therefore was a 'Government servant' for the purpose of these Rules. If such a test is satisfied in a case then definitely the benefit of the Rule of 1974 would flow to the claimant who is dependant of a deceased employee. The G.O. dated 26.10.98 would therefore, apply only to those part time tube well operators who do: not qualify the test for being included in the definition of Government servant' as defined in the Rules of 1974. However, in case any employee, may be part time tube well operator or a daily wager or a work charged employee, satisfies the conditions as inumerated in Rule 2(a)(i)(ii) and (iii) then he would be a 'Government serevant' for the purposes of these Rules.
13. Taking the present case it is not disputed that the petitioner's father was appointed in 1987 and he continued to work continuously till he died on 20.8.99. The appointment of the petitioner's father was initially for a period of three years on being selected by a Selection Committee. The said appointment was then converted and he was appointed as tube well assistant in 1992 also for three years. He continued to work and was paid his salary regularly and there was no break in his service. This fact is also not denied by the respondents. The fact that the respondents required the services of the petitioner's father continuously since 1987 to 1999 is indicative of the fact that the requirement was of a perpetual and regular nature. It is not the case of the respondents that the work of tube well operators no more exists. It has also not been pleaded that such tube well operators are no more required. On a vacancy which may occur of a part time tube well operator the tube well still has to be operated, therefore, the nature of work is existing day to day and the respondents have taken the services of the petitioner's father due to existence of work since 1987 continuously. During this period of nearly 12 years the salary has been disbursed by the respondents month to month. The nature of work required to be performed by the petitioner's father was of a regular nature as is apparent from a reading of the appointment letter dated 20.5.92 wherein the duties of the petitioner have been prescribed. It is also not disputed by the learned Standing Counsel that the part time tube well operators are being paid the same salary as regularly appointed tube well operators on the principle of 'equal pay for equal work.' The duties, qualifications and hours of working of part lime tube well operators and regular tube well operators are identical has been held by this court and the Hon'ble Supreme Court in SLP (c) No. 16219 of 1994 decided on 22.3.1995.
14. For the aforesaid reasons and the facts of this case it is concluded that the Government Order dated 26.10.1998 would not be applicable in the present case in as much as the petitioner's father would come under the definition of 'Government Servant' as defined under Rule 2(a) (iii) of the Rules for the purpose of appointment of his dependants on compassionate grounds.
15. Consequently the writ petition deserves to be allowed. The impugned orders dated 25.1.2000 and 29.1.2000 passed by the respondent No. 2 and No. 3 respectively are quashed. The matter is remitted back to the respondent No. 2 to re-consider the petitioner's application dated 29.12.99 under the Dying in Harness Rules 1974, The respondent No. 2 will take a decision on the same after giving full opportunity to the petitioner within three months from the date of a certified copy of this order is produced before him.
16. The writ petition is allowed. No order is passed as to costs.