JUDGMENT : 1. Heard Sri Bhanu Bhushan Jauhari, learned counsel for petitioner and learned Standing Counsel for State of U.P., and perused the record. 2. Principal reliefs claimed in this writ petition reads as under: “(i) to issue writ order or direction in the nature of certiorari quashing order dated 10.5.2002 (Annexure No. 9). (ii) to issue writ order or direction in the nature of mandamus directing and commanding the respondents to treat the petitioner in service and to make regular payment of the salary and other allowances of the petitioner with effect from 1.11.2001 till retirement of the petitioner.” 3. It is contended by learned counsel for petitioner that petitioner was appointed as Lower Grade Clerk in the office of Executive Engineer Bhawan/Marg Service Khand Lok Nirman Vibhag Bareilly on compassionate basis vide order dated 1.10.1999 passed by Chief Engineer, West Zone, Lok Nirman Vibhag, U.P. Bareilly on probation. Thereafter, show cause notice was issued to petitioner on 2.1.2002 stating that as father of petitioner died on 22.12.1984 and application for appointment on compassionate basis under U.P. Recruitment of Dependants of Government Servants (Dying-in-Harness) Rules, 1974 (hereinafter referred to as "Rules 1974") was submitted after more than 5 years, so he should show cause why his appointment be not terminated. 4. Petitioner submitted reply dated 14.1.2002. Thereafter impugned order dated 10.5.2002 has been passed terminating petitioner under U.P. Temporary Government Servants (Termination of Service) Rules, 1975 (hereinafter referred to as "Rules 1975"). 5. It is contended by learned counsel for petitioner that appointment of petitioner was made on compassionate basis on a substantive basis and hence, he could not have been terminated under Rules 1975. Since the said Rules are not attracted in this case. 6. The basic facts when questioned, learned Standing Counsel could not dispute but submitted that an appointment on probation is also temporary appointment. Therefore, petitioner was terminated in purported exercise of power under Rule 3 of Rules 1975. 7. The respective submissions raised a question, whether appointment of petitioner be treated to be substantive or a temporary appointment which could have been terminated under Rules 1975. Thus, the question for consideration as this Court formulated for adjudication in this case is "whether compassionate appointment under Rules, 1974 could have been made on temporary basis and such appointment could have been terminated in purported exercise of powers under Rules, 1975". 8. Thus, the question for consideration as this Court formulated for adjudication in this case is "whether compassionate appointment under Rules, 1974 could have been made on temporary basis and such appointment could have been terminated in purported exercise of powers under Rules, 1975". 8. I find that on a reference made by a learned Single Judge to a Larger Bench, this issue was considered by a Division Bench consisting of Hon'ble Markandey Katju (as His Lordship then was) and Hon'ble Kamal Kishore, JJ. in Ravi Karan Singh vs. State of U.P. and others, 1999(3) UPLBEC 2263 . Earlier there were three Single Judge judgments in Dhirendra Pratap Singh v. District Inspector of Schools and others 1991 (1) UPLBEC 427; Gulab Yadav vs. State of U. P. and others 1991 (2) UPLBEC 995 and Budhi Sagar Dubey v. District Inspector of Schools and others 1993 ESC 21 wherein it was held that an appointment under Rules, 1974 is a permanent appointment. Subsequently a learned Single Judge disagreed with aforesaid three judgments and referred the matter to Larger Bench. In Ravi Karan Singh vs. State of U.P. (supra), Larger Bench upheld the view taken in above three judgments and held that an appointment under Rules, 1974 has to be treated as permanent appointment since compassionate appointment, if treated to be a temporary appointment, it will nullify the very purpose of Rules applicable for compassionate appointment. Larger Bench (Division Bench) also held that in respect of appointment made on compassionate basis Rules, 1975 will not apply. Para 2 of judgment laying down law by Division Bench in Ravi Karan Singh vs. State of U.P. (supra) reads 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) 9. 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) 9. Above judgment was followed by 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 vs. Dy. Director General (NCE), Directorate and others, 2002 (3) UPLBEC 2748 . 10. Another Division Bench in Ram Chandra vs. State of U.P. and others, 2008(2) UPLBEC 1431 again had an occasion to consider this aspect and following judgment in Ravi Karan Singh vs. State of U.P. (supra), Court held that appointments made under Rules, 1974 are of permanent nature hence Rules, 1975 will not be applicable. Relevant exposition of law laid down by Division Bench in Ram Chandra vs. State of U.P. (supra) is reproduced as under: "It is settled law that the appointments made under the provisions of the U.P. Recruitment of Dependants of Government Servants (Dying-in-Harness) Rules, 1974 are of permanent nature. Since appointment of the petitioner was of permanent nature, the provisions of U.P. Temporary Government Servants (Termination of Service) Rules, 1975 were not applicable." (emphasis added) 11. Then came fourth decision in Jagdish Narain vs. Union of India and others, 2011(3) UPLBEC 2196 which was a matter not governed by Rules, 1974 and Rules, 1975 applicable to State Government employees but it was a case relating to employment under Central Government. The provisions with respect to compassionate appointment were made by Ministry of Personnel, Public Grievances and Pensions (Department of Personnel & Training)'s Office Memorandum No. 14014/6/86-Estt. (D) dated 30.06.1987. One Late Sarwan Lal, father of Jagdish Narain was appointed on probation for a period of two years with the rider that in case his work and conduct during period of probation is found unsatisfactory his services may be terminated. Subsequently when services of Jagdish Narain was found unsatisfactory he was terminated vide order dated 22.09.1994. This termination was challenged in Central Administrative Tribunal in Original Application No. 844 of 1995 which was dismissed. Thereafter matter came to this Court. Relying on three Division Bench judgments in Ravi Karan Singh vs. State of U.P. (supra); Sanjai Kumar vs. Dy. Subsequently when services of Jagdish Narain was found unsatisfactory he was terminated vide order dated 22.09.1994. This termination was challenged in Central Administrative Tribunal in Original Application No. 844 of 1995 which was dismissed. Thereafter matter came to this Court. Relying on three Division Bench judgments in Ravi Karan Singh vs. State of U.P. (supra); Sanjai Kumar vs. Dy. Director General (NCE), Directorate (supra) and Ram Chandra vs. State of U.P. (supra), Division Bench in Jagdish Narain vs. Union of India (supra) held that appointment on probation amounts to a temporary appointment which is not permissible when an appointment is made on compassionate basis and, therefore, condition of probation stated in appointment letter was illegal and of no consequence. Petitioner's appointment on compassionate basis was liable to be treated as permanent in nature, hence termination was bad and with aforesaid findings writ petition was allowed and order of Tribunal as well as termination order were set aside. 12. In a subsequent matter which again arose in respect of employment in Central Government, in Sr. General Manager, Ordnance Factory vs. Central Administrative Tribunal and others, 2016(2) ADJ 751 correctness of judgment in Jagdish Narain vs. Union of India (supra) was examined by a Full Bench on a reference made by a Division Bench disagreeing with Division Bench judgment in Jagdish Narain vs. Union of India (supra). Three questions referred to be considered by Full Bench are as under: "1. Where a person is granted compassionate appointment as a member of the family of a deceased employee of the government who has died in harness in relaxation of the normal rules for recruitment, is it not necessary that even a compassionate appointee be placed on probation in the first instance, in the same manner as any other direct recruit, since the provision pertaining to appointment on probation has not been excluded or exempted in the case of a compassionate appointment; 2. Since an appointment on compassionate grounds on probation is also a regular appointment and a person appointed as such is not offered a temporary appointment, whether there is any violation of law or principle in appointing a person in this category on probation in the first instance; 3. Since an appointment on compassionate grounds on probation is also a regular appointment and a person appointed as such is not offered a temporary appointment, whether there is any violation of law or principle in appointing a person in this category on probation in the first instance; 3. In view of the clear distinction in service jurisprudence between a regular and a temporary appointee, whether the appointment of a person on a compassionate basis on probation is permissible in law." (emphasis added) 13. Above questions were answered by Full Bench, as under: "26. We, accordingly, answer the questions which have been referred to the Full Bench in the following terms: (1) Re Question (1): Where a person is appointed on a compassionate basis as a dependent member of the family of an employee of the State who has died in harness, such an appointment can be made on probation. The object and purpose of appointing a person on probation is to determine the suitability of the person for retention in service. Appointment of a person who is engaged on a compassionate basis on probation is not contrary to law or unlawful. (2) Re Question (2): Since an appointment on compassionate grounds on probation is also a regular appointment and a person appointed as such is not offered a temporary appointment, such an appointee can be placed on probation in the first instance. (3) Re Question (3): The appointment of a person on a compassionate basis on probation is permissible in law." (emphasis added) 14. Reply to Question (2) clearly shows that Full Bench held that appointment on compassionate basis is a regular appointment and is not to be treated as "temporary appointment". In para 18 of judgment Full Bench clearly observed that there is a distinction between appointment on probation and temporary appointment. The relevant observations read s under : "An appointment on probation does not detract from the nature of the appointment which is to a regular service. Probation is merely an opportunity for the probationer to establish by dint of the work which is rendered during the period of probation, that he or she is suitable for being retained in service. On the part of the employer, probation enables the appointing authority to determine the suitability of the probationer for retention in service. Probation is merely an opportunity for the probationer to establish by dint of the work which is rendered during the period of probation, that he or she is suitable for being retained in service. On the part of the employer, probation enables the appointing authority to determine the suitability of the probationer for retention in service. There is a well accepted distinction in law and in service jurisprudence between a probationary appointment and a temporary appointment." (emphasis added) 15. Full Bench referred to earlier Division Bench judgments in Ravi Karan Singh vs. State of U.P. (supra); Sanjai Kumar vs. Dy. Director General (NCE), Directorate (supra) and Ram Chandra vs. State of U.P. (supra) and distinguished aforesaid judgments on the ground that in all these matters, issue, whether a compassionate appointment can be made on probation or not was not involved and these three judgments, therefore, considered a different issue and in fact Division Bench in Jagdish Narain vs. Union of India (supra) mistakenly relied on above three judgments omitting the fact that question of appointment on probation was not involved in earlier cases. Full Bench, therefore, overruled Division Bench judgment in Jagdish Narain vs. Union of India (supra) and distinguished earlier three judgments in Ravi Karan Singh vs. State of U.P. (supra); Sanjai Kumar vs. Dy. Director General (NCE), Directorate (supra) and Ram Chandra vs. State of U.P. (supra) observing that neither issue nor principle of law enunciated in above three judgments was applicable to the dispute which had arisen in Jagdish Narain vs. Union of India (supra). 16. In view thereof it is evident that Full Bench judgment in Sr. General Manager, Ordnance Factory vs. Central Administrative Tribunal (supra) is not applicable in the case in hand. 17. Instead issue in present writ petition is squarely covered by earlier three Division Bench judgments in Ravi Karan Singh vs. State of U.P. (supra); Sanjai Kumar vs. Dy. Director General (NCE), Directorate (supra) and Ram Chandra vs. State of U.P. (supra) which were in respect of employment in State Government and had considered question of compassionate appointment under Rules, 1974 and have clearly held that in case of such appointments, Rules, 1975 are not applicable since compassionate appointment under Rules, 1974 is of permanent nature. 18. Director General (NCE), Directorate (supra) and Ram Chandra vs. State of U.P. (supra) which were in respect of employment in State Government and had considered question of compassionate appointment under Rules, 1974 and have clearly held that in case of such appointments, Rules, 1975 are not applicable since compassionate appointment under Rules, 1974 is of permanent nature. 18. Here also respondents have clearly relied on the fact that compassionate appointment of petitioner was made on temporary basis i.e. on probation and has been terminated by taking recourse to Rules, 1975. It may be noticed that compassionate appointment of petitioner has not been terminated on the ground that he could not perform satisfactorily on probation but it has been terminated on the ground that he applied for compassionate appointment after five years. Though term of five years under Rules 1974 is not a period of limitation and instead a compassionate appointment could have been allowed even after five years if condition of family member of deceased employee continuing and persisting, penurious, justifying compassionate appointment. Herein, it is not a case of respondents that after five years family of deceased employee including petitioner were not facing penurious condition and therefore, compassionate appointment is not justified. Moreover, once compassionate appointment was made and there was no fraud, misrepresentation or other fault on the part of such employee, In my view, termination of compassionate appointment in such a case is patently arbitrary, whimsical and erroneous. 19. In the present case, however, since respondents have terminated petitioner treating his appointment only as temporary taking recourse of Rules 1975, this approach of respondents is clearly in the teeth of law laid down in above Division Bench judgments in Ravi Karan Singh vs. State of U.P. (supra); Sanjai Kumar vs. Dy. Director General (NCE), Directorate (supra) and Ram Chandra vs. State of U.P. (supra). 20. Considering the totality of the facts and circumstances of the case, the writ petition is allowed. Impugned order dated 10.5.2002 (Anexure No. 9) is hereby quashed. Petitioner shall be entitled for all consequential benefits.