DHIRENDRA NATH YADAV Vs. STATE OF U P

JUDGEMENT

(1.) Heard Sri Anil Kumar Bajpai, learned Counsel for the petitioner, Ms. Suman Sirohi, learned Standing Counsel for respondent No. 2 and Sri Ayank Mishra, learned Counsel for respondents No. 2 to 5. Briefly stated the facts of the present case are that the father of the petitioner late Sri Shivnath Yadav was employed as Noter and Drafter. He died on 1.4.1994 during the period of his service. His son Sri Upendra Nath Yadav was appointed on compassionate ground on the request of the wife of late Sri Shivnath Yadav on 2.7.1994 as Clerk in Electricity Distribution Division, Gorakhpur who also died on 3.12.1998. After his death, the mother of the petitioner Smt. Gulabi Devi, wife of late Sri Shivnath Yadav moved an application dated 21.12.1998 requesting for compassionate appointment of his second son Sri Dhirendra Nath Yadav as there is no earning member in the family. Her application dated 21.9.1998 was forwarded with recommendation by the Superintendent Engineer to the Chief Engineer (Distribution) to appoint Sri Dhirendra Nath Yadav on compassionate ground. However, no decision was taken with regard to the compassionate appointment of the petitioner. In these circumstances, the mother of the petitioner again made a representation dated 21.8.2004 before the Superintendent Engineer, Electricity Distribution Division-I, Gorakhpur referring to the initial application of September, 1998. In the meantime. The Uttar Pradesh Recruitment of Government servant Dying-in-harness Rules, 1974 was amended and in the definition of the word "family" the dependent of deceased's unmarried brother was also included. This amendment was adopted by the respondent-corporation vide order dated 24.10.2002 filed as Annexure 9 to the writ petition. By a letter dated 23.12.2004, the Superintendent Engineer communicated the mother of the petitioner that the approval for compassionate appointment has been declined by the Corporation vide letter No. 5818 dated 22.12.2004. The letter No. 5818 of the Corporation has been filed as Annexure-1, which says that no relaxation can be allowed in the interest of the Corporation.

(2.) Sri Anil Kumar Bajpayee submits that the father of the petitioner died in the year, 1994 leaving behind him, his wife Smt. Gulabi Devi and three sons namely, Sri Upendra Nath Yadav, Sri Ambujeshwar Nath Yadav and Sri Dhirendra Nath Yadav who were dependents of the deceased employee. To support the dependents of the deceased employee, the mother of the petitioner requested for appointment of her son Upendra Nath Yadav on compassionate ground, which was given by the respondents. Sri Upendra Nath Yadav was unmarried son and he died on 3.9.1998. In these circumstances, the remaining dependents of the deceased employee Sri Shivnath Yadav became entitled for compassionate appointment. In these circumstances, the mother of the petitioner requested for compassionate appointment of the petitioner but the request was declined by the respondents on the ground that on the date the application was moved, the definition of the word "family" did not include the dependent unmarried brother. He submits that the reason given was an incorrect interpretation of law inasmuch as, the amendment provisions as available on the date of taking the decision on the application would be applicable. In support of his submission, he relied upon the Full Bench judgment of this Court in Writ-C No. 41958 of 2008, dated 13.2.2014 Anand Kumar Sharma v. State of U.P. and others, wherein it has been held that the Government policy as existed on the date of application shall not apply rather the Government policy, which existed on the date of taking decision on the application shall be applicable.

(3.) Sri Ayank Mishra submits that when the application for compassionate appointment was moved, 'unmarried brother' was not included in the definition of the word 'family' under the Rules. The amendment came in the year 2002, which shall not be applicable on the petitioner so as to entitle him to fall within the definition of the word "family" of the deceased unmarried brother. In support of his submission he relied upon a Single Bench judgment of this Court in the case of Seema Srivastava v. U.P. Power Corporation, passed in Writ-A No. 14571 of 2004 decided on 16.9.2013.