DEVENDRA KUMAR ARORA,J. - (1.) HEARD learned counsel for the parties and perused the record.
(2.) BY means of this writ petition, the petitioner has prayed for a writ in the nature of certiorari quashing the impugned order dated 02.12.2009, passed by opposite party no. 4, as contained in Annexure No. 1 to the writ petition. Petitioner has further prayed for a writ in the nature of mandamus commanding the opposite parties to appoint the petitioner on a suitable post on compassionate grounds under the provisions of U. P. Recruitment of Dependants of Government Servants (Dying in Harness) Rules, 1974, treating the deceased as a regular employee of the department. Submission of learned counsel for the petitioner is that mother of petitioner, namely, Smt. Raj Kumari W/o Late Ram Ujagir was a class IV daily wager employee who was working in the office of Opposite Party No. 4 since 1972 and continuously worked till her death. In the year 2001, the Government of U.P. promulgated “Uttar Pradesh Samooh “Gha” Ke Padon Par Dainik Vetan Niyuktiyon Ka Viniyamatikaran Niyamawali, 2001” for regularisation of daily wagers working since long in different departments of Uttar Pradesh. Although case of the deceased was fully covered with the provisions of Rules, 2001, but her case was not considered for regularisation. Feeling aggrieved, the deceased alongwith other similarly situated persons preferred a Writ Petition No. 2209 (M/B) of 2003 and this Court vide order dated 25.4.2003 directed the opposite parties to pay minimum of pay-scale to the mother of the petitioner and other similarly situated persons. Accordingly, mother of the petitioner was getting minimum of the pay-scale for the post of Mali and process of regularisation of her services was in progress but meanwhile she died on 22.8.2009 and her services could not be regularised. The petitioner, being her legal heir, moved an application to the opposite party no. 4 on 13.11.2009 for appointment on compassionate ground under Dying in Harness Rules. The opposite party no. 4 rejected the application on the ground that the deceased was a daily wager and there is no provision for making appointment of the dependents of the daily wager workers on compassionate ground.
(3.) LEARNED counsel for the petitioner submitted that the petitioner has a legal right to get employment under the provisions of the Dying in Harness Rules and action of the opposite party no. 4 in not considering petitioner's application for giving an appointment under Dying in Harness Rules is illegal, arbitrary and mala fide. The mother of the petitioner had rendered 36 years of service in the department and, as such, she was fully entitled for regularisation of her services. Petitioner's case falls under sub clause (iii) of clause (a) of Rule 2 of Dying in Harness Rules.1974. Learned counsel for the petitioner placed reliance upon a decision of Hon'ble Apex Court reported in 1992 (4) SCC 118 : (AIR 1992 SC 2130)and stated that the State being a model employer, should not exploit the employees nor take advantage of the helplessness and misery of either the unemployed person or the person concerned, as the case may be, where a temporary or ad hoc appointment is continued for long, the court presumes that there is regular need for her services on a regular post.;