R. B. Misra, J.
1. Heard learned counsel for the petitioner as well as learned standing counsel for the State.
2. The petitioner has challenged the order dated 12.7.1996 (Annexure-
5) whereby the service of the petitioner has been terminated under the Uttar Pradesh Temporary Government Servants (Termination of Service) Rules, 1975 (in short called Rules 1975).
3. The facts necessary for the adjudication of the writ petition are that the father of the petitioner Sri Sita Ram Lal was working as Lekhpal in district Gorakhpur (presently district Maharajganj). He was permanent Lekhpal who died during the service period on 14.2.1974 leaving behind the petitioner as a legal heir. The petitioner was appointed as Lekhpal under U. P. Recruitment of Dependent of Government Servants Dying-in-Harness Rules, 1974 (called ‘Rules 1974’) on compassionate ground in the year 1985. The impugned order dated 12.7.1996 of termination was passed by Deputy Collector/ Prescribed Authority, Nautanva, Nichlol. Maharajganj without payment of salary to the petitioner from the month of April, 1996, onwards. It appears that the respondent No. 1 State of U. P. through its Commissioner-cum-Secretary of Board of Revenue. U. P. Lucknow, has issued a circular dated 15.2.1991 to all the District Magistrates and Commissioners of State giving directions that those persons appointed specifically prior to 29.5.1990 on the compassionate ground under ‘Rules 1974’ were to be imparted Lekhpal training and on their failure in Lekhpal training, their services were to be terminated. The petitioner has submitted that the untrained Lekhpals sent for training were required to be given three chances to clear the training (Annexure-2).
4. It has been contended on behalf of the petitioner that he was appointed on compassionate ground under ‘Rule 1974’ and failed in the examination, thereafter he was allotted Halka by order dated 9th February, 1993, of respondents, thereafter, the impugned order of termination was passed. According to para 226 of Part II/Chapter XIV of U. P. Land Records Manual “Limit to
appearance of examination : No candidates shall be allowed to appear at more than three examinations unless specially exempted by the Director. Scholars to pass in third attempt shall be removed from School”. Inspite of the aforesaid provisions provided under law, the petitioner was not sent for the training and his service was terminated, whereas, he could have been provided two more opportunities availing to attend training.
5. It has also been pointed out on behalf of the petitioner that initial appointment of the petitioner was made on permanent basis and not on the temporary basis under ‘Rules 1974, as such ‘Rule 1975’ shall not apply in the case of the petitioner. Therefore, when the petitioner was permanent since his Initial appointment, his termination treating him temporary under ‘Rule 1975’ is bad in law and without providing sufficient opportunity to complete the training of Lekhpal in three chances, the petitioner has been deprived of valuable legal rights.
6. Learned counsel for the petitioner has placed reliance on the Judgment dated 12.2.1999 passed in the Writ Petition No. 39127 of 1994 in the case of Ravi Koran Singh v. State of U. P. and others. 1999 (2) AWC 976 : (1999) 3 UPLBEC 2264, where the Court has observed as under :
“This petition has come up before us on a reference made by the learned single Judge by his order dated 19.12.1997. The point Involved is very simple, that is, whether an appointment under the Dying-in-Harness Rules, is a permanent appointment or temporary appointment. According to the learned single Judge, this Court had earlier held that an appointment under Dying-in-Harness Rules is a permanent appoint vide Budhi Sagar Dubey v. D.I.O.S., 1992 AWC Supp 211 : (1993) 1 UPLBEC 197 : Gulab Yadav v. State of U. P. and others, (1991) 2 UPLBEC 995 and Dhirendra Pratap Stngh v. D.I.O.S. and others, (1991) 1 UPLBEC 427. The learned single Judge who
passed the referring order dated 19.12.1997 disagreed with the above mentioned decisions and hence has referred the matter to a larger Bench.
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 Rule is a permanent appointment and not a temporary appointment and hence the provisions of Uttar Pradesh Temporary Government Servants (Termination of Service) Rules, 1975, will not apply to such appointment.
The petition is disposed of accordingly.”
7. In the counter-affidavit, efforts have been made on the part of learned standing counsel to say that appointment of petitioner is treated temporary and his termination simplicitor under ‘Rule 1975’ is legally correct and as the petitioner could not be successful in the lekhpal examination which was meant for untrained Lekhpals appointed temporarily on compassionate ground under ‘Rule 1974’.
8. The initial appointment of petitioner as Lekhpal was to be made on permanent basis and he was given only one chance to appear in lekhpal examination and complete three chances were not provided to him to get success, therefore, the petitioner could not be terminated under ‘Rule 1975’ treating him temporary employee. In view of the above observations the order dated 12.7.1996 (Annexure-5) is hereby quashed and petitioner shall be
treated to have been given employment from 27.9.1985 as a lekhpal. Therefore, the respondents are directed to treat him to have been appointed and served as a permanent lekhpal. Since he has already been superannuated, therefore, he Is entitled to all consequential post-retiral benefits.
9. The writ petition is allowed. The benefits to be accrued may be made available to the petitioner within six months from the date of receipt of the order.