Rakesh Tiwari. J. - (1.) HEARD Sri Ashok Khare, learned senior counsel appearing for petitioner assisted by Sri Nipendra Tripathi and standing counsel who has accepted notice on behalf of the respondents No. 1 to 4.
(2.) THE facts of the case in brief are that Surendra Katariya, father of the petitioner was employed in permanent capacity as Ambulance Driver. He died during service on 5.7.2008. Petitioner thereafter applied for compassionate appointment in place of his father and was appointed as Warder in district Jail, Meerut by Senior Superintendent of Jail, Meerut. While he was undergoing training at Training Institute at Lucknow, a notice dated 2.10.2008 was issued to the petitioner by Deputy Director calling for an explanation regarding his absence in training Class and not observing discipline in the institute. Another notice dated 3.10.2008 was issued calling for explanation for not performing his duties during training period and reiterating the fact that he was not taking any interest in training. Another charge was that while he was Mess In-charge, he was not serving food properly upto standard. Petitioner replied both the notices. Another show cause notice dated 7.10.2008 was issued to the petitioner again calling for explanation in which he was communicated by the Deputy Director that he was failed in training and was required to undergo further training after availing two days leave. It appears that by the impugned order dated 6/7.11.2008 Senior Superintendent of Jail, Meerut terminated the services of the petitioner, as his services are no longer required, in purported exercise of powers under U. P. Temporary Government Servant (Termination of Service) Rules, 1975. Aggrieved, petitioner has filed this writ petition. The contention of counsel for the petitioner is that the compassionate appointment is permanent appointment. However, from the letter of appointment dated 7.7.2008 (Annexure-1 to the writ petition) it appears that the petitioner was appointed on temporary basis, hence his services have been terminated vide letter dated 6/7.11.2008 under U. P. Temporary Government Servant (Termination of Service) Rules, 1975.
(3.) IT is urged by counsel for the petitioner that it is settled law that the compassionate appointment is treated to be permanent appointment if the deceased Government servant was employed on permanent basis. He has relied upon a Division Bench decision of this Court in the case of Ravi Karan Singh v. State of U. P., and others, 1999 (2) AWC 976, wherein the Division Bench has held 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." He has further relied upon the decision in the case of Om Prakash v. Superintending Engineer, Nalkoop, 2001 (1) LBESR 116 (All) : 2000 (3) AWC 1992, which is also to the same effect.;