Sudhir Agarwal, J. - (1.) The present writ petition has been filed seeking a writ of mandamus commanding the respondents to provide the petitioner compassionate appointment due to death of her husband who was working as Clerk in Meerut Development Authority, Meerut for the last 17 years. It is an admitted case of both the side that the petitioner's husband was a daily wage work charge employee. It is not disputed that U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 (hereinafter referred to as 1974 Rules) are applicable to the Meerut Development Authority for the purpose of extending the benefit of compassionate appointment to the heirs of the deceased employee, who died in harness. However, the only question come up for consideration is whether the said benefit is available to the legal heirs of a daily wage employee or not under the 1974 Rules. Rule 2 (a) of 1974 Rules reads as under: "2. (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. Explanation.- "Regularly appointed" means appointed in accordance with the procedure laid down for recruitment to the post or service, as the case may be"
(2.) This very rule has recently been considered by the Apex Court in General Manager, Uttaranchal Jal Sansthan v. Laxmi Devi and others, (2009) 7 SCC 205 wherein it has been held that the daily wager is not a Government employee. It has further been observed that in order to extend the benefit to the employees who are not appointed on regular basis but working against regular vacancy, it must be shown that there was a vacancy occurred on a sanctioned post and against such vacancy, the incumbent was working so as to get the benefit of Rule 2 (a) (iii) of 1974 Rules. Therein a similar argument was advanced that a work charge employee, if has worked continously for several years, would raise a presumption that there exists a vacancy and there is regular need of services. Reliance was sought to be placed on behalf of the employee to the Apex Court decision in Workmen v. Bhurkunda Colliery of Central Coalfields Ltd., (2006) 3 SCC 297. However rejecting the contention and distinguishing the above judgment, the Apex Court in Uttaranchal Jal Sansthan (supra) observed as under: "The said case, in our opinion, would have no application to the present case. These observations only lend support to the presumption as to a regular need for work of the daily wage worker but not as to the existence of a regular vacancy in this respect. In any event, it is one thing to say that by reason of such contingencies the services of the work charged employee should be directed to be regularized but it is another thing to say that although they were not absorbed in the permanent cadre, still on their deaths, their dependants would be entitled to invoke the Rules. 23. In any view of the matter the fact that there was a regular need by itself would not mean that there was a regular vacancy. A distinction must be made between a need of regular employees and existence of regular vacancies. The High Court, therefore, in our opinion was not correct in proceeding to allow the writ application filed by the respondents herein on the premise that the deceased had been working for a long time. 24. Indisputably the services of the deceased had not been regularized. In both the cases writ petitions were filed but no effective relief thereto had been granted."
(3.) Besides above, in respect to the another decision cited before the Apex Court, namely, Khagesh Kumar v. Inspector General of Registration, 1995 Supp. (4) SCC 182, the Apex Court in para 30 clearly observed as under: "In any event all such decisions must be held to have been overruled in Umadevi.";