Judgment : 1. The petitioner’s husband was engaged on the post of Beldar on 1st September, 1979 by the Executive Engineer, Tarai Irrigation Division, Nainital, and worked continuously for more than 18 years and died on 9/10th of June, 1997. The petitioner, being the widow of the deceased, applied for appointment under the Dying in Harness Rules, which remained pending and, accordingly, the petitioner was constrained to file Writ Petition No.106 of 2006 (S/S), which was disposed of by judgment dated 13th February, 2006, directing the authority concerned to decide the petitioner’s representation for appointment on compassionate grounds. Pursuant to the said direction, the authority rejected the petitioner’s application by an order dated 15th April, 2006 holding that the petitioner’s husband was appointed on daily wages and was not a permanent employee and, therefore, the Dying in Harness Rules was not applicable. The petitioner, being aggrieved by the said order, has filed the present writ petition. 2. It has come on record that the State of U.P. had issued a Government Order dated 7th February, 1997 indicating that the employees working on daily wage prior to 29th June, 1991 would be adjusted in the department on the basis of the seniority list and that they would also be considered as work charge employees. The State of Uttarakhand also issued a Government Order dated 4th December, 2002 indicating that a daily wager and a work charge employee working prior to 19th June, 2001 would also be adjusted on the basis of their seniority. 3. The question which is required to be considered is, whether the petitioner’s husband, working as a daily wager, would be deemed to be a regular employee of the department and whether he was working on a vacancy or not. 4. Appointment on compassionate grounds is governed by The U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974. Rule 5 of the said Rules provides recruitment of a member of the family of the deceased in government service. For facility, Rule 5 is extracted hereunder:- “5. 4. Appointment on compassionate grounds is governed by The U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974. Rule 5 of the said Rules provides recruitment of a member of the family of the deceased in government service. For facility, Rule 5 is extracted hereunder:- “5. Recruitment of a member of the family of the deceased.-(1) In case a Government servant dies in harness after the commencement of these rules and the spouse of the deceased Government servant is not already employed under the Central Government or a State Government or a Corporation owned or controlled by the Central Government or a State Government, one member of his family who is not already employed under the Central Government or a State Government or a Corporation owned or controlled by the Central Government or a State Government shall, on making an application for the purposes, be given a suitable employment in Government service on a post except the post which is within the purview of the Uttar Pradesh Public Service Commission, in relaxation of the normal recruitment rules if such person- (i) fulfills the educational qualifications prescribed for the post, (ii) is otherwise qualified for Government service, and (iii) makes the application for employment within five years from the date of the death of the Government servant: Provided that where the State Government is satisfied that the time-limit fixed for making the application for employment causes undue hardship in any particular case, it may dispense with or relax the requirement as it may consider necessary for dealing with the case in a just and equitable manner. (2) As far as possible, such an employment should be given in the same department in which the deceased Government servant was employed prior to his death.] [(3) Each appointment under sub-rule (1) should be under the condition that the person appointed under sub-rule (1) shall upkeep those other family members of the deceased Government Servant who are incapable for their own maintenance and were dependant of the abovesaid deceased Government servant immediately before his death.]” 5. A perusal of the aforesaid Rules indicates that the dependant of a Government servant, who dies in harness, would be given a suitable employment in government service subject to fulfilling the educational qualifications, etc. 7. “Government servant” has been defined under Rule 2 of the Rules of 1974. A perusal of the aforesaid Rules indicates that the dependant of a Government servant, who dies in harness, would be given a suitable employment in government service subject to fulfilling the educational qualifications, etc. 7. “Government servant” has been defined under Rule 2 of the Rules of 1974. For facility, the said provision is extracted hereunder:- “2. Definition.-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. 7. The aforesaid definition clearly indicates that the Government servant must be employed in a permanent or in a temporary capacity and, if not regularly appointed, the Government servant must have put in three years of continuous service in a regular vacancy in such employment. 8. The petitioner was a daily wager and had put in 18 years of continuous service. Consequently, Rule 2(a)(iii) would come into play, namely, that the employee though not regularly appointed had put in three years of continuous service in a regular vacancy. The fact that the petitioner’s husband had worked for 18 years indicates that the work was of a perennial nature and was not intermittent in nature and, in that light, there would be a deemed presumption that the daily wager was working in a regular vacancy or in a substantive vacancy. 9. In Santosh Kumar Mishra vs. State of U.P. and others, [ (2002) 1 UPLBEC 337 ], the Court while considering the matter of daily wager and the appointment of dependant on compassionate grounds held:- “16. It may also be taken note of that if daily wager or a workcharge employee is engaged against a particular duty or post, and that work is of perennial nature, the presumption would be that such an employee would be entitled for being treated to have been continuing against a regular vacancy.” 10. It may also be taken note of that if daily wager or a workcharge employee is engaged against a particular duty or post, and that work is of perennial nature, the presumption would be that such an employee would be entitled for being treated to have been continuing against a regular vacancy.” 10. Similarly, in Meena Devi Chaudhary (Smt.) vs. Chief Engineer, U.P. Public Works Department, Lucknow and others, [(2002) 2 UPLBEC 1421], the Court while considering the case of the daily wager who died in harness, held that a daily wager who worked continuously and was being paid in the regular pay scale, would be treated as a Government servant contemplated under Rule 2 of the Rules of 1974 and that the dependant would be entitled for consideration on compassionate appointment. 11. In Saroj Devi (Smt.) vs. State of U.P. and others [(1992) 2 UPLBEC 1404], the Court while considering the case of a casual or adhoc employee held that if a person worked for a long period against a substantive vacancy, his dependant would be considered for appointment on compassionate grounds. 12. In Usha Saxena (Kumari) vs. Divisional Forest Officer & another, [ (2010) 1 U.D. 575 ] the Court, in similar circumstances, held that a daily wager who had worked continuously for 30 years indicates that there was a regular vacancy and that the daily wager had worked in a regular vacancy or in a substantive vacancy and, accordingly, issued a mandamus to consider the application of the petitioner for appointment on compassionate grounds in the light of the observations made therein. 13. The said judgment is squarely applicable to the present facts and circumstances of the case. 14. In the light of the aforesaid, the impugned order cannot be sustained and is quashed. The writ petition is allowed. A writ of mandamus is issued commanding the respondents to reconsider the application of the petitioner for appointment on compassionate grounds in the light of the observations made aforesaid and pass a reasoned and speaking order within three months from the date of production of a certified copy of the order.