JUDGMENT Hon’ble Ferdino I. Rebello, C.J.—The State and its functionaries have preferred this appeal against the judgment and order dated 17.9.2004, by which the learned Single Judge has allowed the writ petition filed by the writ petitioner-respondent (hereinafter referred to as the ‘’respondent’), and directed them to consider her case for appointment on compassionate ground. 2. The husband of the respondent had joined as daily wager in Public Works Department in the year 1983. From the year 1998, he worked on work charged basis till his death on 2nd May, 2003. After his death, the respondent applied for appointment on compassionate ground on 24th July, 2003 under the U.P. Recruitment of Dependants of Government Servant (Dying in Harness) Rules, 1974 (hereinafter referred to as the ‘’Dying in Harness Rules’). Her claim was rejected on the ground that the employees working on work charged basis are not entitled for appointment on compassionate ground. 3. The learned Single Judge, in the impugned judgment, has noted the judgment of this Court in Santosh Kumar Mishra v. State of U.P. and others, 2001(4) ESC 1615 (All), wherein the learned Bench had taken the view that the dependants of work charge employees are entitled for appointment on compassionate ground under Dying in Harness Rules. The learned Judge then held that since the husband of the respondent had worked for about 20 years on temporary basis, the authorities have got no right to adopt different standards for the purpose of making appointment under Dying in Harness Rules and, accordingly, directed that the respondent be appointed on compassionate basis under Dying in Harness Rules. The learned Judge also quashed the Government Order dated 29.1.2003, by which the State had withdrawn certain benefits extended to the dependants of daily wagers/work charge employees for appointment on compassionate ground under Dying in Harness Rules, without assigning any reason. 4. In the appeal preferred by the State, it was pointed out that a person working on work charged basis is not holder of a civil post. Though, earlier the Government had granted certain relaxation in strict requirement of Dying in Harness Rules to cover even the cases of muster roll and work charged employees, the same was withdrawn by Government Order dated 29.1.2003. Though, earlier the Government had granted certain relaxation in strict requirement of Dying in Harness Rules to cover even the cases of muster roll and work charged employees, the same was withdrawn by Government Order dated 29.1.2003. It was further pointed out that the question of recruitment and appointment is a policy decision, which has to be decided by the State Government and its right to create post and recruit people emanates from the statute or statutory rules and/or rules framed under the proviso to Article 309 of the Constitution of India. It has also been submitted on behalf of the State that reliance placed by the learned Judge on the judgment in Santosh Kumar Mishra (supra) was misplaced. 5. At the hearing of this appeal, though notice was given to the learned counsel for the respondent, but none appeared on her behalf. 6. In the first instance, we may point out that a Full Bench of this Court in Pawan Kumar Yadav v. State of U.P. and others, 2010(8) ADJ 664 (FB), has overruled the judgment, amongst others, in Santosh Kumar Mishra (supra). Once that be the case, the impugned judgment of the learned Single Judge cannot be sustained and is liable to be set aside on that ground alone. We may quote paragraph 26 of the said judgment, which reads as under : “26. On the aforesaid discussion, and in view of the law laid down in General Manager, Uttaranchal Jal Sansthan v. Laxmi Devi (supra), we answer the questions posed as follows : “1. A daily wager and work charge employee employed in connection with the affairs of the Uttar Pradesh, who is not holding any post, whether substantive or temporary, and is not appointed in any regular vacancy, even if he was working for more than 3 years, is not a ‘’Government servant’ within the meaning of Rule 2(a) of U.P. Recruitment of Dependants of Government Servant (Dying in Harness) Rules, 1974, and thus his dependants on his death in harness are not entitled to compassionate appointment under these Rules.” 7. The larger question, however, is whether the decision of the learned Single Judge to quash the circular withdrawing benefit of Dying in Harness Rules extended to the dependants of daily wage/muster roll employees is supported by law? The larger question, however, is whether the decision of the learned Single Judge to quash the circular withdrawing benefit of Dying in Harness Rules extended to the dependants of daily wage/muster roll employees is supported by law? As noted earlier, no reasons have been given by the learned Single Judge to quash the Government Order dated 29.1.2003 withdrawing the benefit of Dying in Harness Rules to the dependants of daily wage/muster roll employees. The said Government Order was issued in exercise of State’s power in the absence of any rule made under Article 309 of the Constitution of India. Though, the ground to challenge may not be similar to what are available to challenge to a subordinate legislation, nonetheless the test of administrative review of an administrative action will have to be met. The learned Judge has not given any reason as to why the action of the State is arbitrary and violative of Article 14 of the Constitution of India. It may also be noted that the Supreme Court in the case of General Manager, Uttaranchal Jal Sansthan v. Laxmi Devi and others, (2009) 2 SCC (L&S) 304, has held that the daily rated and work charge employees are not holding any civil post under the State. Once that be the case, the question of extending any largesse by the State to persons appointed on daily wage/work charge basis would not arise as they are not holders of civil post. The State, in its sovereign power to mitigate hardship of family members of a deceased holding civil post has made provision for appointment on compassionate basis. It would thus be impermissible for the State to create any right in favour of dependants of persons employed on daily wage/muster roll/work charged basis to be considered for appointment on compassionate basis merely because they have been engaged by the State on daily wage/muster roll/work charge basis. Even assuming that the State may take a decision to provide certain benefits to daily rated and work charge employees, that surely cannot be on regular basis as that would amount to giving a benefit which even the deceased was not entitled to. Secondly, it is for the State to decide whether to extend or not to extend its largesse in favour of persons working on work charge and daily wage basis. Secondly, it is for the State to decide whether to extend or not to extend its largesse in favour of persons working on work charge and daily wage basis. Though, it earlier had made a provision extending certain benefits in favour of dependants of persons working on daily wage/muster roll basis, it also had right to withdraw the same. It cannot be said that merely because the State has withdrawn the benefit which was earlier extended, the same has resulted in any arbitrariness or in violation of any constitutional provision. The judgment of the learned Single Judge, therefore, suffers from an error of law inasmuch as no reason has been assigned for quashing the Government Order dated 29.1.2003 withdrawing certain benefit extended under Dying in Harness Rules. 8. In the instant case, no appointment was given to the respondent and, hence, the question of considering protect her appointment would not arise. 9. In the light of above, the appeal deserves to be allowed and is, accordingly, allowed. The judgment and order of the learned Single Judge dated 17.9.2004 passed in Writ Petition No. 5289 (S/S) of 2004 is set aside. 10. In the circumstances of the case, there shall be no order as to costs. —————