JUDGMENT : 1. State of U.P. through Secretary, Irrigation Department and other State functionaries have preferred this special appeal in challenge to decision dated 15.7.2005 rendered by learned Single Judge while dealing with Writ Petition No.5361(S/S) of 1999 titled 'Chunni Devi versus State of U.P. and others'. Vide the impugned decision, the writ petition filed by the respondent/writ petitioner has been allowed. 2. We have heard learned counsel for the appellants and learned counsel for the respondent. We have gone through the pleadings and contents of the impugned order. 3. Learned counsel for the respondent/writ petitioner has filed an additional affidavit along with letter of appointment of the respondent dated 20.5.2006 Annexure A-1 and two other documents. The application/affidavit and the documents are taken on record. 4. The fact not in dispute is that husband of the respondent/writ petitioner was serving as a daily wager, and died while serving in that capacity. The respondent/writ petitioner applied for appointment on compassionate grounds under Uttar Pradesh Recruitment of Dependants of Government Servants (Dying in Harness) Rules, 1974 (for short, Rules of 1974). Appointment was given to the respondent/writ petitioner vide order dated 26.11.1997, however, on temporary basis. The services of the respondent/writ petitioner were terminated vide order dated 21.9.1999. Order dated 21.9.1999 came to be assailed by filing the writ petition. Operation of the termination order was stayed by the writ Court. The respondent/writ petitioner continued to serve the appellants. The subsequent developments have been brought on record vide affidavit and accompanying documents taken on record today. Annexure - A-1 dated 20.05.2006 is letter of regular appointment of the petitioner as Beldar. Annexure - A-2 dated 21.01.2017 is an order vide which pay of the petitioner has been fixed. Annexure - A-3 dated 20.02.2015 is an order vide which the petitioner has been promoted to Class III post. 5. The first issue raised by the respondent/writ petitioner before the writ Court was that appointment under the Rules of 1974 can only be made on permanent basis and therefore, the very fact that she (writ petitioner) was engaged on temporary basis was against settled principles of law. 6. Having gone through the impugned decision, we find that the writ Court while relying on Ravi Karan Singh versus State of U.P. and others, 1999 (17) LCD 641 has held that appointment under the Rules of 1974 has to be treated as permanent appointment. 6. Having gone through the impugned decision, we find that the writ Court while relying on Ravi Karan Singh versus State of U.P. and others, 1999 (17) LCD 641 has held that appointment under the Rules of 1974 has to be treated as permanent appointment. There is no dispute to this legal proposition from either side. 7. The other issue considered by the writ Court is in regard to the right of dependent of a daily wager to claim appointment under the Rules of 1974. The writ Court on the said issue has ruled that "There is no bar or legal impediment in such cases that the dependents of a deceased daily wager or temporary employee cannot be engaged under Dying in Harness Rules." 8. With respect, we differ from this view in view of the law settled by a Full Bench of this Court in Pawan Kumar Yadav versus State of U.P. and others, 2010 (28) LCD 1493, and followed by a Division Bench of this Court, of which one of us (Ajai Lamba, J) was a Member, in Special Appeal No.419 of 2007 State of U.P. and others versus Munshi Lal decided on 24.04.2019. 9. The following has been held in paras 8 to 10 in judgment dated 24.4.2019 rendered in Special Appeal No.419 of 2007 (supra) : "8. While referring to the judgment rendered by the Full Bench in Pawan Kumar Yadav's case (supra), we find that the issue involved in this appeal has been specifically dealt with and decided. Paras 22 to 27 of the judgment rendered in Pawan Kumar Yadav's case (supra) read as under : "22. In Uttaranchal Jal Sansthan Vs. Laxmi Devi (Supra) the Supreme Court has held "it is one thing to say that by reason of such contingencies services of the work charge employee should be directed to be regularised, 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. The regular need of work, of which presumption has been set to arise after working for long number of years and the principles of legitimate expectations, would not mean that there was a regular vacancy. 23. The regular need of work, of which presumption has been set to arise after working for long number of years and the principles of legitimate expectations, would not mean that there was a regular vacancy. The word 'regular' vacancy has not been defined but that a distinction must be made between a need of regular employees, and the existence of regular vacancies. In Uttaranchal Jal Sansthan Vs. Laxmi Devi (Supra) the Supreme Court said; 'indisputably the services of the deceased had not been regularised. in both the cases the writ petitions were filed but no effective relief thereto had been granted. In the case of late Leeladhar Pandy, allegedly he was drawing salary on regular scale of pay. that may be so but the same would not mean that there existed a regular vacancy". 24. The Supreme Court further went on to explain in para 18 to 20 as follows:- "18. Indisputably having regard to the equality clause contained in Articles 14 and 16 of the Constitution of India 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 in 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 which arises within the cadre strength. 19. It is a trite law that a regular vacancy cannot be filled up except in terms of the recruitment rules as also upon compliance of the constitutional scheme of equality. In view of the explanation appended to Rule 2(a), for the purpose of this case we would, however, assume that such regular appointment was not necessarily to be taken recourse to. In such an event sub-clause (iii) of clause (a) as also the explanation appended thereto would be rendered unconstitutional. 20. The provision of law which ex facie violates the equality clause and permits appointment through the side door being unconstitutional must be held to be impermissible and in any event requires strict interpretation. It was, therefore, for the respondents to establish that at the point of time the deceased employees were appointed, there existed regular vacancies. Offers of appointment made in favour of the deceased have not been produced." 25. In General Manager, Uttaranchal Jal Sansthan Vs. It was, therefore, for the respondents to establish that at the point of time the deceased employees were appointed, there existed regular vacancies. Offers of appointment made in favour of the deceased have not been produced." 25. In General Manager, Uttaranchal Jal Sansthan Vs. Laxmi Devi (Supra) the Supreme Court considered and interpreted the expression 'regular vacancy' in respect of same Rules namely U.P. Recruitment of Dependants of Government Servant (Dying in Harness) Rules, 1974. The judgement of the Apex Court interpreting the same Rules and deciding the questions posed before us squarely covers question No.1, in favour of the State and is binding on the High Court. 26. On the aforesaid discussion, and in view of the law laid down in General Manager, Uttaranchal Jal Sansthan Vs. Laxmi Devi (Supra), we answer the questions posed as follows:- "1. A daily wager and workcharge employee employed in connection with the affairs of the Uttar Pradesh, who is not holding any post, whether substantive or temporary, and is not appointed in any regular vacancy, even if he was working for more than 3 years, is not a 'Government servant' within the meaning of Rule 2 (a) of U.P. Recruitment of Dependants of Government Servant (Dying in Harness) Rules, 1974, and thus his dependants on his death in harness are not entitled to compassionate appointment under these Rules. 2. The judgements in Smt. Pushpa Lata Dixit Vs. Madhyamik Shiksha Parishad and others, 1991 (18) AllLR 591; Smt. Maya Devi Vs. State of U.P. (Writ Petition No.24231 of 1998 decided on 2.3.1998); State of U.P. Vs. Maya Devi (Special Appeal No.409 of 1998); Santosh Kumar Misra Vs. State of U.P. & Ors., 2001 (4) ESC 1615 (Alld) ; and Anju Misra Vs. General Manager, Kanpur Jal Sansthan, 2004 (1) UPLBEC 201 giving benefit of compassionate appointment to the dependants of daily wage and workcharge employee have not been correctly decided." 27. All the writ petitions are consequently dismissed. The delay in filing the Special Appeal Nos.845 (D) of 2009; 595 (D) of 2002; 610 (D) of 2003 and 1170 (D) of 2007 has been sufficiently explained and is accordingly condoned. The Special Appeal Nos.845 (D) of 2009; 595 (D) of 2002; 610 (D) of 2003; 1284 of 2010; 1849 of 2009; 1170 (D) of 2007; 85 of 2004 and 567 of 2008 are allowed. The Special Appeal Nos.845 (D) of 2009; 595 (D) of 2002; 610 (D) of 2003; 1284 of 2010; 1849 of 2009; 1170 (D) of 2007; 85 of 2004 and 567 of 2008 are allowed. The judgements of learned Single Judge challenging these appeals are set aside and the writ petitions are dismissed." (Emphasised by us) 9. Considering the law as laid down by the learned Full Bench, as noticed above, in extenso, we are in no doubt that the legal position in regard to the issue raised by virtue of the special appeal has been settled. It has been held that a daily wager and work charge employee employed in connection with the affairs of the Uttar Pradesh would not fall within the definition of 'Government Servant' within the meaning of Rule 2(a) of 1974 Rules. It has been held categorically that the dependants on death of such employee in harness would not be entitled to compassionate appointment under 1974 Rules. 10. In view of the law laid down by the learned Full Bench, the respondent/writ petitioner would not be entitled to appointment on compassionate ground under 1974 Rules for the reason that his father, who died in harness served on work charge basis and therefore cannot be considered as 'Government Servant' within the meaning of Rule 2(a) of 1974 Rules." (Emphasised by us) 10. From the above, it becomes evident that the law is well settled to the effect that a daily wager and work charge employee employed in connection with the affairs of the Uttar Pradesh would not fall within the definition of "Government Servant" within the meaning of Rule 2(a) of the Rules of 1974. The dependents on death of such employee would not be entitled to appointment on compassionate grounds under the Rules of 1974. In view of the above, we hold that the decision rendered by learned single Judge on the issue of right of a dependent of a daily wager to claim appointment on compassionate grounds in terms of Rules of 1974 is legally not tenable. The respondent/writ petitioner could not have been given appointment on compassionate grounds being dependent of a daily wager. 11. The respondent/writ petitioner could not have been given appointment on compassionate grounds being dependent of a daily wager. 11. Be that as it may, it has been projected before us by learned counsel for the respondent/writ petitioner, and not disputed by learned counsel for the appellants that the respondent/writ petitioner has been serving since November, 1997, i.e. for the last about 22 years, and would be attaining age of superannuation in approximately four years. So much so, a regular letter of appointment dated 20.5.2006 (Annexure A-1 to the affidavit filed today) has been issued. The document placed on record as Annexure A-3 with the affidavit (supra) is an order dated 20.2.2015 vide which the respondent/writ petitioner has been given promotion to Class-III post. 12. In totality of facts and circumstances, we are faced with a situation wherein the respondent/writ petitioner was given appointment on 26.11.1997. The writ Court ruled in her favour. The respondent/writ petitioner has been serving for the last about 22 years. The employer has issued a letter of regular appointment. So much so the respondent/writ petitioner has been given promotion. 13. This Court is also a court of equity. The exceptional facts and circumstances of this case, the same being that the respondent/writ petitioner has rendered 22 years of service; the appellant/employer issued a letter of regular appointment on 20.05.2006; the appellant/employer vide order dated 21.01.2007 (Annexure - A - 2 appended with affidavit filed today) has fixed the pay of the petitioner; and the appellant/employer, in lieu of impeccable service record of respondent/writ petitioner vide order dated 20.02.2015 (Annexure - A - 3 to the affidavit) has promoted the respondent/writ petitioner to Class - III post, cannot be ignored. Faced with the above situation we deem it just and proper to dismiss the special appeal, however direct that the service of the respondent/writ petitioner would be protected. 14. We make it explicit that this shall not be cited as a precedent, and the order is being passed in exceptional circumstances narrated above.