JUDGMENT :

Sudhir Agarwal, J.

1. Heard Sri R.P. Mishra, Advocate, holding brief of Sri S.K.S. Baghel, learned counsel for petitioner, learned Standing Counsel for respondents and perused the record.

2. Petitioner's father Sri Ram Singh Beldar was working in U.P.P.W.D. and died in harness whereupon vide order dated 30.3.1983 Executive Engineer, National Highway, Construction Division, U.P.P.W.D., Agra appointed petitioner on temporary basis as Beldar in Work Charge Establishment. Thereafter on 4.8.1999, an order was issued by Chief Engineer, Agra Region, P.W.D., Agra that those Work Charge Employees, who have worked continuously for five years may be regularized. Pursuant thereto Executive Engineer, Provincial Division, P.W.D., Agra passed an order dated 11.5.2000 regularizing petitioner on temporary basis with effect from 1.5.2000.

3. Subsequently, order dated 4.8.1999 issued by Chief Engineer, Agra and dated 11.5.2000 issued by Executive Engineer, Provincial Division, Agra, have been cancelled vide impugned order dated 22.7.2000.

4. It is contended that firstly compassionate appointment is given in substantive capacity and, therefore, there is no occasion for regularization on temporary basis and, secondly even otherwise when regularization order was already passed, it could not have been cancelled in violation of principles of natural justice and without any show-cause notice.

5. The first question need to be considered in this case is, "whether compassionate appointment made under U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 (hereinafter referred to as "Rules, 1974") could have been temporary or it is always substantive appointment?"

6. I find that there are three authorities on the subject in which it was held that an appointment made under Rules, 1974 is always a permanent appointment. First of all there were three Single Judge decisions in Dhirendra Pratap Singh v. District Inspector of Schools and others, 1991 (1) UPLBEC 427; Gulab Yadav v. State of U.P. and others, 1991 (2) UPLBEC 995 and Budhi Sagar Dubey v. District Inspector of Schools and others, 1993 ESC 21. Thereafter, a Division Bench consisting of Hon'ble Markandey Katju (as His Lordship then was) and Hon'ble Kamal Kishore, JJ, in Ravi Karan Singh v. State of U.P. and others, 1999(3) UPLBEC 2263, took the same view.

7. A learned Single Judge, taking a different view than what was taken in earlier three Single Judges' judgments, referred the question to Larger Bench and considering such reference, Division Bench in Ravi Karan Singh (supra), said as under:

"2. In our opinion, an appointment under the Dying-in-Harness Rules has to be treated as a permanent appointment otherwise if such appointment Is treated to be a temporary appointment, then it will follow that soon after the appointment, the service can be terminated and this will nullify the very purpose of the Dying-in-Harness Rules because such appointment is intended to provide immediate relief to the family on the sudden death of the bread earner. We, therefore, hold that the appointment under Dying-in-Harness Rules is a permanent appointment and not a temporary appointment, and hence the provisions of U.P. Temporary Government Servant (Termination of Services) Rules, 1975 will not apply to such appointments."

(Emphasis added)

8. The above Division Bench was followed in another Division Bench consisting of Hon'ble S.K. Sen, C.J. and Hon'ble Ashok Bhushan, J. (as His Lordship then was) in Sanjai Kumar v. Dy. Director General (NCE), Directorate and others, 2002(3) UPLBEC 2748.

9. Again another Division Bench in Ram Chandra v. State of U.P. and others, 2008(2) ADJ 509 (DB)(LB), following Division Bench judgment in Ravi Karan Singh (supra), said that appointments made under Rules, 1974 are of permanent nature.

10. In the context of Central Government employees, all the above judgments have been examined by a Full Bench of this Court in Sr. General Manager, Ordnance Factory v. Central A