JUDGMENT Hon’ble Mrs. Sunita Agarwal, J.—Heard learned counsel for the parties. 2. Petitioner’s husband, Lal Babu Gupta was appointed as Shiksha Mitra on 5.7.2001 under a scheme run by the State Government, namely, “School Chalo Abhiyan” in Primary School Chatursansthi Kishor Block Navanagar, District Ballia.The contract appointment was renewed from time to time and he was continuing as such. He died in harness on 14.9.2013 and as such the petitioner had applied for compassionate appointment. The submission of the petitioner is that her husband had worked to the utmost satisfaction of his superior and had undertaken B.T.C. training. He had also passed the first semester examination of BTC conducted on 29.5.2013. He was the only bread earner of his family. The prayer is that the application of the petitioner requires to be considered by the respondents. 3. Learned standing counsel has objected to the prayer made by the petitioner on the ground that the petitioner being dependant of a contract employee, namely, Shiksha Mitra is not entitled for appointment on the compassionate ground. The submission is that Shiksha Mitra does not fall in the definition of “Government Servant” as provided under Rule 2(a) of U.P. Recruitment of Dependents of Government Servants Dying-in-Harness Rules, 1974 (hereinafter referred to as Rule 1974 Rules). 4. Perusal of Rule 2(a) framed under proviso to Article 309 of the Constitution of India indicates that three categories of Government servants are provided therein : (1) the employees who are appointed on permanent basis; (2) those employees who had been regularly appointed though temporary in Government employment; (3) those category of employees who are though not regularly appointed but had put in three years of continuous service in regular vacancy in such employment. 5. Petitioner claims to be included in category II or III meaning thereby that she claims that her husband was appointed on a temporary basis against the regular vacancy after adopting due procedure laid-down for recruitment to the post and had put in more than three years of continuous service. 6. The explanation to Sub-Rule (a) of Rule 2 reads as under : “(ii) though temporary had been regularly appointed in such employment.” 7. Rule 3 of 1974 Rules states that these rules shall apply for recruitment of dependants of the deceased Government Servants to public services and posts in connection with the affairs of State of Uttar Pradesh. 6. The explanation to Sub-Rule (a) of Rule 2 reads as under : “(ii) though temporary had been regularly appointed in such employment.” 7. Rule 3 of 1974 Rules states that these rules shall apply for recruitment of dependants of the deceased Government Servants to public services and posts in connection with the affairs of State of Uttar Pradesh. Rule 5 of 1974 Rules further provides that in case a Government servant dies in harness after the commencement of these rules and the spouse or a family member of the deceased Government servant 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 can be given compassionate appointment subject to suitability and fulfilment of eligibility criteria to the post. 8. Perusal of “definition” of Government servant under Rule 2(a)indicates that the deceased employee should have been appointed against the regular vacancy in an employment which is connected with the affairs of the State of U.P. 9. The nature and manner of appointment of the deceased employee is,therefore, to be seen for the purpose of consideration of claim of his dependant for compassionate appointment. Whether the appointment is in a regular vacancy or not is essentially a question of fact. Existence of a regular vacancy would mean a vacancy which occurred on a post sanctioned by the competent authority. For the said purpose the cadre strength of the category to which the post belongs is required to be taken into consideration. A regular vacancy is a vacancy which arises within the cadre strength. If the regular vacancy is not filled in terms of recruitment rules the appointment employee against the said vacancy cannot be treated to be a Government servant. It is trite that for filling up the regular vacancy, the procedure provided for recruitment is necessarily to be adhere to. 10. So far as Shiksha Mitras are concerned they were appointed on the post under a scheme run by the State Government which was “School Chalo Abhiyan”. The appointment was contractual and was being renewed from time to time after assessment of their performance. The Shiksha Mitras are neither regular nor temporary teachers working in the cadre of teacher in the primary school. They are contract employees appointment in addition to the regular cadre strength under the scheme run by the State Government. The appointment was contractual and was being renewed from time to time after assessment of their performance. The Shiksha Mitras are neither regular nor temporary teachers working in the cadre of teacher in the primary school. They are contract employees appointment in addition to the regular cadre strength under the scheme run by the State Government. Their vacancies cannot be treated as regular vacancies in the cadre of the teacher and they have no right to continue beyond the period of contract. 11. Petitioner’s husband continued for the period of 12 years as Shiksha Mitra but mere his continuance would not mean that he was a teacher appointed in the regular vacancy in the cadre of teacher. 12. Admittedly he was appointed under the Scheme, namely, “School Chalo Abhiyan” by the State Government and his continuance was subject to the further decision taken by the State Government from time to time. The recruitment, appointment and condition of service of Shiksha Mitra are governed by the Government orders issued by the State Government. There are no recruitment rules. 13. In view of this admitted position, the appointment of petitioner’s husband as Shiksha Mitra cannot be treated at par with other teachers working in the primary school run by Basic Shiksha Parishad. Petitioner’s husband cannot be treated as Government servant within the meaning of sub-rule (g) of Rule 2 of 1974 Rules. As such the petitioner has no right for consideration for appointment on compassionate ground. 14. The Apex Court in the case of General Manager, Uttaranchal Jal Sansthan v. Laxmi Devi and others, (2009)7 SCC 205 , has held that the daily wagers or work charge employees who had been working for seven years would not be treated as Government servant within the meaning as provided under Rule 2 (a) 1974 Rules. 15. In view of the above discussion, the petitioner’s claim for compassionate appointment cannot be considered under 1974 Rules. No direction can be given in the present writ petition. 16. The writ petition is accordingly dismissed. ——————