Heard R. S. Yadav, learned counsel for the petitioner, learned State Counsel and perused the record.
Factual matrix of the present case are that the petitioner's father (Late Shri Ram Nayan Yadav) was working in the Forest department, State of U.P. as a daily wager employee under opposite party no.3/Divisional Forest Officer, Ambedkar Nagar Division, District-Ambedkar Nagar, died during the tenure of his service on 27.3.2007.
As there is no other member in the family of the deceased to earn livelihood, so the petitioner submitted an application for considering his case to give compassionate appointment under Dying-In-Harness Rules, 1974, but no heed has been paid. Hence, the petitioner for redressal of his grievances approached this Court by filing the present writ petition with the following main prayer:-
"to issue a writ, order of direction in the nature of mandamus commanding the opposite parties to consider and provide compassionate appointment to the petitioner on any suitable post arising out the petitioner's father death in harness treating the petitioner's father to have died as Government servant within a short reasonable period to be prescribed by this Hon'ble Court in the interest of justice."
Admittedly, it is not disputed by learned counsel for the petitioner that father of the petitioner (Late Shri Ram Nayan Yadav) was a daily wager employee although he was being paid minimum salary for working and discharging his duties on the post in question, died during the tenure of his service, accordingly, the petitioner submitted an application for considering his case for giving compassionate appointment under Dying-In-Harness Rules, 1974. Accordingly, taking into consideration the said fact as well as law laid down by Hon'ble the Apex Court in the case of General Manager Uttaranchal Jal Sansthan vs. Laxmi Deiv & Ors. (2009) 2 SCC L & S 304 and Full Bench decision of this Court in the case of Pawan Kumar Yadav vs. State of U.P.& Ors.2011 (1) LBSER 99 (ALL) (FB) the issue involved is no more res integra. It is not the case of the petitioner that the father of the petitioner was engaged against the regular vacancy following the proper procedure laid down for the recruitment to the post. It is also not the case of the petitioner that the service of his father had ever been regularized. Merely because the father of the petitioner was getting the minimum of pay-scale in view of the decision of the apex court in the case of State of U.P. and others Vs. Putti Lal, reported in (2006) 9 SCC-337 (supra), the status of the employment will not change. His engagement was a daily wager and on the date of the death he worked as a daily wager. He was not regularly appointed employee against the regular vacancy.
The apex Court in the case of General Manager, Uttaranchal Jal Sansthan vs. Laxmi Devi and others (supra) has considered Rule 2 (a) (iii) of the Dying in Harness Rules, 1974 and has held that the daily wager not employed in regular vacancy is not a Government servant under Rule 2 (a) (iii) of the Dying in Harness Rules, 1974 and the dependants of such daily wagers are not entitled to be considered for compassionate appointment. The word "regular vancancy" has been interpretated as means the vacancy which occurs against a sanctioned post of a cadre strength. It has been further held that regular vancancy cannot be filled up except in terms of the recruitment rules as also upon compliance with the constitutional scheme of equality. In view of the Explanation appended to Rule 2 (a), for the purpose of this case would, however, assume that such regular appointment was not necessarily to be taken recourse to. In such an event sub-clause (iii) of clause (a) as also the Explanation appended thereto would be rendered unconstitutional. The provision of law which ex facie violates the equality clause and permits appointment through the side-door being unconstitutional must be held to be impermissible and in any event requires strict interpretation. It was, therefore, for the respondents to establish that at the point of time the deceased employees were appointed, there existed regular vacancies. The apex Court further held that merely because the deceased was drawing salary on a regular scale of pay, the same would not mean that there existed a regular vacancy.
The Full Bench of this Court in the case of Pawan Kumar Yadav vs. State of U.P. and others (supra) on consideration of Rules 5 (1) and 2 (a) of the Dying in Harness Rules, 1974 has held that the dependants of the daily wager or work charge employee not holding any post either substantive or temporary and not appointed in any regular vacancey; even if he worked for more than three years before the death is not entitled for appointment on compassionate ground. (See Ajay Kumar vs. State of U.P. & Ors. 2012 (1) ALJ 355).
For the foregoing reasons, as the petitioner's father (Late Shri Ram Nayan Yadav) was a daily wager, so the relief as claim by the petitioner for considering his case for appointment on compassioante ground under U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules (1974) is not maintainable.
In the result, writ petition lacks merit and is dismissed.
Order Date :- 3.5.2012 Mahesh