JUDGMENT N.K. Mehrotra, J.
1. Heard the learned counsel for the petitioner.
2. This writ petition has been filed for issuing a writ of certiorari quashing the impugned order dated 19.1.2002 passed by the opposite party No. 3 as contained in Annexure-1 and further for a writ of mandamus commanding the opposite parties to appoint the petitioner on any class IV post and pay her salary regularly.
3. Petitioner claims appointment under the Dying-in-Harness Rules. The husband of the petitioner was working as daily wage employee in Lucknow Nagar Nigam as Safayee Karamchari who died on 1.8.2001. Petitioner being wife of the deceased applied for appointment under the Dying-in-Harness Rules, which are applicable in the case of the petitioner. The petitioner has filed the copy of U.P. Government Servant Dying in Harness Rules, 1974 and averred in the petition that these Rules are applicable in the matters of employees of Nagar Nigam. The application for appointment has been rejected by Regional Health Officer, Nagar Nigam, Lucknow by Annexure-1 on the ground that under the Rules there is no provision for providing employment to the dependents of deceased daily wagers. The petitioner alleged in para 6 of the petition that the Rules pertaining to appointment under Dying-in-Harness Rules cover those employees who were working against the regular vacancy. It is also averred in the writ petition that the deceased husband of the petitioner was not given regular appointment but he had worked against the regular vacancy continuously three years and therefore the petitioner is entitled for the compassionate appointment under the said Rules. The learned counsel for the petitioner has placed reliance on a judgment of this Court in Sunil Kumar v. State of U.P., 2003 (3) AWC 2224 : 2003 (1) UPLBEC 489, in which Rule 2 of U.P. Recruitment of Dependents of Government Servants Dying-in-Harness Rules, 1974 which defines "Government Servant", has been interpreted by this Court. It has been held that the Rule 2 of the said Rules takes within its ambit employees even if not regularly appointed who were in service continuously for three years in regular vacancy.
4. Generally the daily wagers do not work against a regular vacancy. There is a specific averment in para 6 of the petition that the deceased husband of the petitioner worked against regular vacancy continuously for three years and since there is no rebuttal by the side of the opposite parties there can be no reason to disbelieve the statement of the petitioner.
5. On 10th of March, 2003 at the time of filing of the writ petition this Court permitted Shri R.K. Singh the standing counsel of the Nagar Nigam to file counter-affidavit within a period of four weeks. Instead of four weeks a period of four months have expired but the counter-affidavit has not been filed by the Nagar Nigam. The writ petition relates to the appointment under Dying-in-Harness Rules and no body can be permitted to take unreasonable time to file counter-affidavit.
6. I, find that the impugned order does not indicate whether 1974 Rules apply in the Nagar Nigam or not. It does riot indicate the Rules which are applicable and under which rule the claim of the petitioner was considered by the Regional Health Officer. It does not indicate whether the deceased husband of the petitioner was covered under the definition of Government Servant as provided under Rule 2 (Ka) of 1974 Rules referred above. If these Rules are applicable for the employees of the Nagar Nigam also. I find that the administrative orders should also be speaking order, which has not been done in this case. In these circumstances there is no alternative but to quash the impugned order Annexure 1.
7. The second prayer of the petitioner is to issue a writ of mandamus to the opposite parties to appoint the petitioner on any class IV Post. Since the opposite parties have not turned up to rebut the allegations. Instead of issuing mandamus for appointment the proper course would be to direct the opposite parties No. 1 and 2 to pass a speaking order after taking into considerations all the contentions raised by the petitioner before this Court. At the time of deciding the representation the opposite party shall keep in mind the decision of this Court in Sunil Kumar v. State of U.P. and Ors., (2003) 1 UPLBEC 489. The petitioner is directed to file a representation before the opposite parties No. 1 and 2 raising all the facts as stated in the petition within a period of ten days and the opposite parties No. 1 and 2 are directed to decide the representation by speaking order within a period of three weeks from the date of receiving the copy of this order which shall be served on the opposite parties by the petitioner herself along with the copy of the judgment in Sunil Kumar v. State of U.P. and Ors. (supra).
8. The writ petition is disposed of finally with the aforesaid directions for the opposite parties.