By the Court.—In Pawan Kumar Yadav v. State of U.P. and others, the Court noticed judgments of this Court taking divergent views in the matter of recruitment of dependants of Government servants, dying in harness, where the deceased employees were either daily wagers or workcharge employees, who were not regularly appointed, and referred the following questions for decision of larger bench :

“1. Whether a daily wager and work charge employee, employed in connection with the affairs of Uttar Pradesh, who is not holding any post whether substantive or temporary is a ‘Government Servant’ within the meaning of Rule 2 (a) of U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974?

2. Whether the judgment in Smt. Pushpa Lata Dixit v. Madhyamik Shiksha Parishad and others, 1991 (18) ALR 591; Smt. Maya Devi v. State of U.P. (Writ Petition No. 24231 of 1998 decided on 2.3.1998); State of U.P. v. Maya Devi (Special Appeal No. 409 of 1998); Santosh Kumar Misra v. State of U.P. and others, 2001 (4) ESC (All) 1615; and Anju Misra v. General Manager, Kanpur Jal Sansthan, (2004) 1 UPLBEC 201, giving benefit of compassionate appointment to the dependants of daily wager and work charge employees, have been correctly decided?”

2. The questions were referred by Hon’ble Mr. Justice A.N. Ray, the then Chief Justice on 13.5.2005 to a Bench of three Judges. A large number of writ petitions and special appeals filed subsequently, on the same questions were connected, with the reference.

3. The petitioners are represented by Shri S.P. Shukla, Shri S.K. Misra, Shri L.C. Srivastava, Shri Ashok Tripathi, Shri Bikash Kumar Mishra, Shri Ashok Tripathi, Shri Sunil Kumar Srivastava, Shri Shashi Kant Shukla, Dr. Dharmesh Chaturvedi, Shri Bhoopendra Nath Singh, Shri Rakesh Kumar Singh, Shri K.M. Misra and Shri N.K. Mishra. No other counsel has appeared in the listed matters. Shri M.C. Chaturvedi, Chief Standing Counsel assisted by Dr. Y.K. Srivastava, Standing Counsel appeared for various departments of the State and for State of U.P. in the special appeals.

4. Prior to 7.10.1974, recruitment of dependants of Government servant dying in harness was regulated by several Government Orders and departmental instructions. The Government of U.P. Notified the U.P. Recruitment of Dependants of Government Servant (Dying in Harness) Rules, 1974 (In short the Rules of 1974) under the proviso to Article 309 of the Constitution of India on 7th October, 1974. The framing of these statutory Rules of 1974, had the effect of the Rules prevailing over all the Government Orders/ Circulars/ Letters, which have after the framing of Rules, no force of law.

5. Rule 2 provides definition of ‘Government Servant’, which has been defined in Clause (a) thereof to mean :

“(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, has 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 ;”

Rule 3 provides, that the Rules would be applied to recruitment of dependents of the deceased Government servants to public services and posts in connection with the affairs of State of Uttar Pradesh. Rule 4 provides for a non-obstante clause stating that the same shall have effect notwithstanding anything to the contrary contained in any rules, regulations or orders in force at the commencement thereof.

Rule 5 provides for recruitment to a member of the family of the deceased as under :

“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 al