S.J. Mukhopadhaya, J.

1. The husband of petitioner the Bachhan Ram was in the services of the State as choukidar in the Work Charge Establishment of Public Health and Engineering Department, P.H. Division at Ramgarh. He died in harness on 1st August 2001. Thereafter, the respondents having not paid the total retiral benefits to the widow and the case of the son having not considered for compassionate appointment, the present writ petition has been preferred.

2. As the respondents took plea that the husband of petitioner was not in the regular establishment, the petitioner has also prayed to command the respondents to regularize and confirm the service of her husband, late Bachhan Ram he having worked for 21 years under the State.

3. 11 appears that the husband of petitioner was a daily wager in the Biswas Board Division, Hazaribagh of Public Health and Engineering Department. He was appointed as choukidar in the scale of Rs. 155-190 in the Work Charged Establishment vide memo No. 674 dated 25th April, 1980. But before his service was taken in the regular establishment he died.

4. The respondent No. 2, Executive Engineer, P.H. Division, Hazaribagh has taken plea that as the petitioners husband was work charge employee under the Executive Engineer, Ramgarh, Executive Engineer is the competent authority to take decision. The Executive Engineer, P.H. Division, Ramgarh (Res. No. 3) while accepted that the petitioners husband was appointed in Work Charged Establishment vide order No. 89 dated 25th April, 1980 referred a letter No. 833 dated 21st July, 1999 issued by Chief Engineer, P.H.E.D. (Annexure A) to suggest that the wards of work charge employee are not entitled for compassionate appointment.

5. Similar matter fell for consideration before the Patna High Court in the case of Smt. Meera Devi v. The State of Bihar and Ors., reported in 2000 (1) PLJR 493. Therein the Court noticed the Finance Department memo No. 1344 dated 4th February, 1949 and Appointment Departments Notification No. 5555-31-27/230 A dated 15th April, 1950 and held that the circular dated 4th February, 1949 is a statutory Rule. The Court further held that the employees of the Work Charged Establishment shall be guided by same conditions of service as of temporary Government servant, was quoted hereunder :

"The State of Bihar laid down conditions of service of persons working in the Work-charge Establishment. Initially, it was circulated vide Finance Departments Memo No. 1344 dated 4th February 1949, which reads as follows :

"(Vide F.D. Memo No. 1344 dated 4.2.1949)

Subject--Revised conditions of service of Work-charged establishment.

The existing distinction between work-charged establishment temporary and permanent establishment and daily labour as given in the P.W. Code and P.W.D. Accounts Code will be maintained but the conditions of service of work-charged establishment will henceforth be identical with those of temporary Government servants.

The posts in work-charged establishment which are of permanent nature that is required for 12 months in the year and for long and indefinite period will be made permanent and included in permanent establishment and the non-employed on these posts, having one years approved service will be included amongst permanent Government employees. Details in this connection are being worked out and till this is done the conditions of service applicable to temporary Government servants will apply to all work-charge posts."

(Quoted from page 137; Volume II of Bihar P.W.D. Code, published by Malhotra Bros.)

The aforesaid guidelines now have been made and deemed to be a rule framed under the proviso to Article 309 of the Constitution of India in pursuance of Appointment Departments Notification No. 5555-31-27/230-A dated 15th April, 1950 published in Bihar Gazette on 26th April, 1950 issued under proviso to Article 309 of the Constitution of India.

Under the 1949 Rules, it has been stipulated that the persons working in the Work-charge Esta