Devendra Kumar Arora, J.;-

By means of this writ petition, the petitioner has prayed for a writ in the nature of mandamus for commanding the opposite parties to give appointment under the Uttar Pradesh Recruitment of Dependant of Government Servant Dying in Harness Rules, 1974 (hereinafter referred to as Dying in Harness Rules.).

The submission of learned counsel for the petitioner is that petitioner's father Late Gaya Prasad was appointed on muster roll temporary basis and was working at Itaunja Kumhrawan Road in Sthanik Abhiyanta 2nd P.W.D., Lucknow. Thereafter, petitioner's father was transferred to Executive Engineer, Nirman Khand-2 P.W.D., Chhatauni, Dehras Road, Gonda and while working there he died on 17.08.1994. The petitioner's mother made application for compassionate appointment of petitioner on 10.04.1995. When no action was taken by opposite parties, the petitioner made several representation, raising his grievance, but till date no action has been taken by the opposite parties to provide compassionate appointment to the petitioner.

Learned Standing Counsel while opposing writ petition, submitted that the petitioner's father was appointed on muster roll temporary basis and was not a regular incumbent, as such, petitioner is not entitled to get any benefit of the provisions of Dying in Harness Rules, therefore, his application for employment was rightly rejected. The present writ petition is misconceived and deserves to be dismissed.

I have considered arguments of learned counsel for respective parties and gone through the record.

The main question which arises in the instant writ petition is as to whether petitioner's father who was appointed on muster roll temporary basis, can be termed as a government servant for the purposes applying the provisions of U. P. Dependants of Govt. Servants (Dying in Harness) Rules, 1974 and if not, whether after his death, his dependent can be given appointment under Dying in Harness Rules, 1974.

Admittedly, in the present case, the deceased was appointed on muster roll temporary basis and even after rendering about 12 years service, his services were not regularised. He never attained the status of a regular employee.

The State Government in exercise of powers under the proviso of Article 309 of the Constitution of India framed U. P. Dependants of Government Servants Dying-in-Harness Rules, 1974 (hereinafter referred to as 'the Rules, 1974'). The Rule 2 (a) of the Rules defines "Government Servant" and for ready reference the same is being reproduced as hereunder:-

(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.?

In view of the aforesaid definition, the father of the petitioner admittedly does not fall within the definition of "Government Servant" being appointed on muster roll temporary basis.

In the case of State of Haryana and others vs. Tilak Raj and another 2003 SCC (L & S) 828 the Hon'ble Apex Court in para-11 pleased to held that; "a scale of pay is attached to a different post and in case of a daily wagers, he holds no post."

In the case of Punjab Sate Electricity Board and others vs. Jagjiwan Ram and others (2009) 3 SCC 661, the Hon'ble Apex Court while examining the status of a work-charge employee viz-a-viz a regular employee pleased to observe as under:-

"9. We have considered the respective submissions. Generally speaking, a work-charged establishment is an establishment of which the expenses are chargeable to works. The pay and allowances of the employees who are engaged on a work-charge establishment are usually shown under a specified

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