# Dhirendra Nath Yadav v. State of U.P. & Ors

- **Citation:** (2014) 2 ILRA 777
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-03-05
- **Case number:** Civil Misc. Writ Petition No. 51697 of 2006
- **Bench:** Surya Prakash Kesarwani
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dhirendra-nath-yadav-v-state-of-u-p-ors-42975
- **Pages:** 6

## Headnote

Constitution
of
India,
Art.-226Compassionate
appointment-petitioner
being second son-of deceased employee
applied for compassionate appointmentof death of first son-in the year 1998-by
order dated 23.12.2014 claim rejected
on ground-the amended provision of
dying in Harness Rules 1974-adopted by
Corporation by order dated 24.10.02-by
which brother of deceased employeealso included in definition of family-heldrelevant provisions prevailing at the time
of application-applicable and not on date
of consideration-in the year 1998 after
death of brother-all family member were
dependent
of
deceased
father-no
778 INDIAN LAW REPORTS ALLAHABAD SERIES
question of consideration of brotherarose-order quashed-direction for fresh
consideration issued.

Held: Para-10
Lastly,
Sri
Mishra
submits
that
the
compassionate appointment cannot be
granted after a lapse of a reasonable period,
which must be specified in the rules. I do
not find any force in this submission in view
of the facts of the present case. The
compassionate
appointment
has
been
declined to the petitioner merely on the
ground that the amendment provisions of
2002 shall not apply when application for
compassionate appointment was being
considered in the year 2004 rather the
unamended provision shall apply. In the
facts and circumstances of the case since, it
was not the ground for rejection of
application of compassionate appointment
of the peitioner and as such new ground
cannot be permitted to be raised.

Case Law discussed:
JT 2007(7) SC 336; [(1997) 7 SCC 314]; JT
2003(10) SC 555; (2010) 11 SCC 661 para 14
to 16; (2003) 7 SCC 270; (2006) 5 SCC 702;
(1981) 2 SCC 205.

## Text

2 All] Dhirendra Nath Yadav Vs. State of U.P. & Ors.
777
reason may be questioned as arbitrary in
proceedings under Article 226 or Article
32 of the Constitution. Reliance in this
connection may be placed on the
observations of this Court in Miss Radha
Krishna Agarwal and Ors. v. State of
Bihar and Ors., [(1977) 3 SCR 249]...... In
case any right conferred on the citizens
which is sought to be interfered, such
action is subject to Article 14 of the
Constitution, and must be reasonable and
can be taken only upon lawful and
relevant grounds of public interest. Where
there is arbitrariness in State action of this
type of entering or not entering into
contracts, Article 14 springs up and
judicial review strikes such an action
down. Every action of the State executive
authority must be subject to rule of law
and must be informed by reason. So,
whatever be the activity of the public
authority, in such monopoly or semimonopoly dealings, it should meet the test
of Article 14 of the Constitution. If a
Governmental action even in the matters
of entering or not entering into contracts,
fails to satisfy the test of reasonableness,
the same would be unreasonable.. It
appears to us that rule of reason and rule
against arbitrariness and discrimination,
rules of fair play and natural justice are
part of the rule of law applicable in
situation
or
action
by
State
instrumentality in dealing with citizens in
a situation like the present one. Even
though the rights of the citizens are in the
nature of contractual rights, the manner,
the method and motive of a decision of
entering or not entering into a contract,
are subject to judicial review on the
touchstone
of
relevance
and
reasonableness, fair play, natural justice,
equality and non-discrimination in the
type of the transactions and nature of the
dealing as in the present case."

10. In the instant case, the Court
finds gross violation of the principles of
natural justice and non-consideration of
the relevant aspects of the matter before
blacklisting the petitioner, therefore, the
impugned orders are wholly unjustified
and arbitrary.

11. In view of above, the impugned
orders being unsustainable are quashed.
The writ petition is allowed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.03.2014

BEFORE
THE HON'BLE SURYA PRAKASH KESARWANI, J.

Civil Misc. Writ Petition No. 51697 of 2006

Dhirendra Nath Yadav ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Anil Kumar Bajpai

Counsel for the Respondents:
Sri J.P. Pandey, Sri R.D. Khare
Sri S.K. Srivastava, Ms. Suman Sirohi
Sri Ayank Mishra, C.S.C.

Constitution
of
India,
Art.-226Compassionate
appointment-petitioner
being second son-of deceased employee
applied for compassionate appointmentof death of first son-in the year 1998-by
order dated 23.12.2014 claim rejected
on ground-the amended provision of
dying in Harness Rules 1974-adopted by
Corporation by order dated 24.10.02-by
which brother of deceased employeealso included in definition of family-heldrelevant provisions prevailing at the time
of application-applicable and not on date
of consideration-in the year 1998 after
death of brother-all family member were
dependent
of
deceased
father-no
778 INDIAN LAW REPORTS ALLAHABAD SERIES
question of consideration of brotherarose-order quashed-direction for fresh
consideration issued.

Held: Para-10
Lastly,
Sri
Mishra
submits
that
the
compassionate appointment cannot be
granted after a lapse of a reasonable period,
which must be specified in the rules. I do
not find any force in this submission in view
of the facts of the present case. The
compassionate
appointment
has
been
declined to the petitioner merely on the
ground that the amendment provisions of
2002 shall not apply when application for
compassionate appointment was being
considered in the year 2004 rather the
unamended provision shall apply. In the
facts and circumstances of the case since, it
was not the ground for rejection of
application of compassionate appointment
of the peitioner and as such new ground
cannot be permitted to be raised.

Case Law discussed:
JT 2007(7) SC 336; [(1997) 7 SCC 314]; JT
2003(10) SC 555; (2010) 11 SCC 661 para 14
to 16; (2003) 7 SCC 270; (2006) 5 SCC 702;
(1981) 2 SCC 205.

(Delivered by Hon'ble Surya Prakash
Kesarwani, J.)

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.

2. 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 2nd July, 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.

3. 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
2 All] Dhirendra Nath Yadav Vs. State of U.P. & Ors.
779
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 Vs. 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.

4. 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 Vs.
U.P. Power Corporation passed in Writ-A
No. 14571 of 2004 decided on 16.9.2013.

5. I have carefully considered the
submissions of learned counsel for the
parties. The only ground stated before me by
the
respondents
for
declining
the
appointment
of
the
petitioner
on
compassionate ground is that he did not fall
within the definition of the word "family"
under the Rules 1974 when the application
was moved in the year 1998. The stand of the
respondent is that the amended provision
shall not apply rather unamended provision
shall
apply
inasmuch
as,
when
the
application for compassionate appointment
was moved, the unamended provision was in
force. The submissions so made appears to
be not correct. In the case of Anand Kumar
Sharma (supra) a Full Bench of this Court
held as under :

"In view of the foregoing discussion, we
are of the opinion that the petitioner did not
acquire any vested right on making the
application on 25/7/2005 to get his
application considered on the basis of the
policy as existing on the date of making the
application. The Government order dated
04/8/2006 was fully applicable w.e.f.
04/8/2006 and no error was committed by
the Collector taking into consideration the
policy dated 04/8/2006 when the application
was rejected on 18/12/2006. The Division
Bench judgment in Dr. O.P Gupta's case
(supra) to the extent that it lays down that an
application for grant of free hold right is to
be considered in accordance with the
government's policy as was existing on the
date of application does not lay down the
correct law."

6. An application has to be decided in
accordance with law applicable on the date,
on whichwhich the authority applies its mind
to the prayer made in the application. In the
case
of
Commissioner
of
Municipal
Corporation, Shimla V. Prem Lata Sood and
780 INDIAN LAW REPORTS ALLAHABAD SERIES
others, JT 2007(7) SC 336, Hon'ble Supreme
Court has held in para 41, 42 as under :

"41. The question again came up for
consideration in Howrah Municipal Corpn.
and Others v. Ganges Rope Co. Ltd. and
Others, wherein this Court categorically held
:

The context in which the respondent
Company claims a vested right for sanction
and which has been accepted by the Division
Bench of the High Court, is not a right in
relation to ownership or possession of any
property for which the expression vest is
generally used. What we can understand
from the claim of a vested right set up by the
respondent Company is that on the basis of
the Building Rules, as applicable to their
case on the date of making an application for
sanction and the fixed period allotted by the
Court for its consideration, it had a
legitimate or settled expectation to obtain the
sanction. In our considered opinion, such
settled expectation, if any, did not create any
vested right to obtain sanction. True it is, that
the respondent Company which can have no
control over the manner of processing of
application for sanction by the Corporation
cannot be blamed for delay but during
pendency of its application for sanction, if
the State Government, in exercise of its rulemaking power, amended the Building Rules
and imposed restrictions on the heights of
buildings on G.T. Road and other wards,
such settled expectation has been rendered
impossible of fulfilment due to change in law.
The claim based on the alleged vested right
or settled expectation cannot be set up
against statutory provisions which were
brought into force by the State Government
by amending the Building Rules and not by
the Corporation against whom such vested
right or settled expectation is being sought to
be enforced. The vested right or settled
expectation has been nullified not only by the
Corporation but also by the State by
amending the Building Rules. Besides this,
such a settled expectation or the so-called
vested right cannot be countenanced against
public interest and

convenience which are sought to be
served by amendment of the Building
Rules
and
the
resolution
of
the
Corporation issued thereupon.

42. In Union of India and Others v.
Indian Charge Chrome and Another [(1999)
7 SCC 314], yet again this Court emphasized
: "The application has to be decided in
accordance with the law applicable on the
date on which the authority granting the
registration is called upon to apply its mind to
the prayer for registration."

7. Hon'ble Supreme Court in the case
of The State of U.P. V. Dy. Director of
Consolidation & Ors. , JT 1996(6) S.C. 306
and State of Punjab and Anr. Vs. M/s
Devans Modern Brewaries Ltd. & Anr., JT
2003 (10) SC 555 with regard to
compassionate appointment, held that if the
scheme of compassionate appointment is
changed or amended then the pending
applications under the abolished scheme will
seize to exit unless saved. Reference in this
regard may also be had to the judgment of
Hon'ble Supreme Court in the case of State
Bank of India and another Vs. Raj Kumar,
(2010) 11 SCC 661, para 14 to 16 as under :

"14. In this context we may usefully
refer to the decision of this Court in
Union of India vs. R. Padmanabhan
wherein this Court observed(SCC pp.
278-79, para 8) :

8...That apart, being ex gratia, no right
accrues to any sum as such till it is
determined and awarded and, in such cases,
normally it should not only be in terms of the
Guidelines and Policy, in force, as on the
date of consideration and actual grant but
2 All] Dhirendra Nath Yadav Vs. State of U.P. & Ors.
781
has to be necessarily with reference to any
indications contained in this regard in the
Scheme itself. The line of decisions relation
to vested rights accrued being protected from
any subsequent amendments may not be
relevant for such a situation and it would be
apposite to advert to the decision of this
Court reported in State of Tamil Nadu vs.
Hind Stone and Ors. - 1981 (2) SCC

205. That was a case wherein this Court
had to consider the claims of lessees for
renewal of their leases or for grant of fresh
leases under the Tamil Nadu Minor Mineral
Concession Rules, 1959. The High Court was
of the view that it was not open to the State
Government to keep the applications filed for
lease or renewal for a long time and then
dispose them of on the basis of a rule which
had come into force later. This Court, while
reversing such view taken by the High Court,
held that in the absence of any vested rights in
anyone, an application for a lease has
necessarily to be dealt with according to the
rules in force on the date of the disposal of the
application, despite the delay, if any, involved
although it is desirable to dispose of the
applications, expeditiously.

15. We may also refer to the decision of
this Court in Kuldeep 8 Singh v. Govt. of NCT
of Delhi [2006 (5) SCC 702] which
considered the question of grant of liquor
vend licences. This Court held that where
applications
required
processing
and
verification the policy which should be
applicable is the one which is prevalent on the
date of grant and not the one which was
prevalent when the application was filed. This
Court clarified that the exception to the said
rule is where a right had already accrued or
vested in the applicant, before the change of
policy.

16. In this case the employee died in
October, 2004, the application was made
only in June, 2005. The application was not
even by the respondent, but by his mother.
Therefore, it was necessary to ascertain
whether respondent really wanted the
appointment, whether he possessed the
eligibility, and whether any post was
available. Within two months of the
application, the new scheme came into force
and the old scheme was abolished. The new
scheme specifically provided that all pending
applications will be considered under the
new scheme. Therefore it has to be held that
the new scheme which came into force on
4.8.2005 alone will apply even in respect of
pending applications."

8. Similar view has been taken by
Hon'ble Supreme Court in the cases of Union
of India Vs. R. Padmnabhan, (2003) 7 SCC
270, Kuldeep Singh Vs. Government of Delhi
(2006) 5 SCC 702 and Stae of Tamilnadu Vs.
Hind Stone (1981) 2 SCC 205.

9. From the perusal of the law laid
down by Hon'ble Supreme Court in the afore
noted judgments, it follows that the provisions
as on the date when the application for
compassionate
appointment
is
being
considered shall be applicable and not the
unamended provision, which existed on the date
of application. The judgment in the case of Seema
Srivastava (supra) relied by Sri Ayank Mishra is
distinguishable on facts, inasmuch as, the
application for the appointment of Seema
Srivastava was rejected by the competent
authority in the year 2000 for reason that "sister"
dos not fall within the definition of the word
"family" and thus, she cannot be considered for
appointment under the dying-in-harness rules.
Thus, from the facts of the case of Seema
Srivastava(supra) it is clear that the application for
compassionate appointment was rejected prior to
coming into force of the amendment in the dyingin-harness rules 2004. In the present set of facts ,
the application for appointment on compassionate
ground was moved on 21.4.1998 and the
782 INDIAN LAW REPORTS ALLAHABAD SERIES
recommendation for giving compassionate
appointment was made by the Superintendent
Engineer on 25.9.1998. The application was
rejected in the year 2004 and the ground as
elaborated before this court is that the amended
provisions shall not apply to old applications. The
application of the petitioner was not rejected on
any other ground. In view of these facts, the
judgment in the case of Seema Srivastava is
distinguishable.

10. Lastly, Sri Mishra submits that the
compassionate
appointment
cannot
be
granted after a lapse of a reasonable period,
which must be specified in the rules. I do not
find any force in this submission in view of
the facts of the present case. The
compassionate
appointment
has
been
declined to the petitioner merely on the
ground that the amendment provisions of
2002 shall not apply when application for
compassionate
appointment
was
being
considered in the year 2004 rather the
unamended provision shall apply. In the facts
and circumstances of the case since, it was
not the ground for rejection of application of
compassionate appointment of the peitioner
and as such new ground cannot be permitted
to be raised.

11. In view of the foregoing discussion, I
find that the impugned order dated 23.12.2004
read with the letter of the U.P. Power
Corporation No. 5818 are hereby set aside. The
respondent no.5 shall pass appropriate order in
accordance with law in the matter of
compassionate appointment of the petitioner
within a period of three months from the date
of a certified copy of this order is filed.

12. The writ petition is allowed with
the aforesaid directions.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.05.2014

BEFORE
THE HON'BLE VINEET SARAN, J.
THE HON'BLE MOHD. TAHIR, J.

Civil Misc. Writ Petition No. 54794 of 2011

Lal Naresh Bahadur Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Amrendra Pratap Singh, Sri Triloki Singh

Counsel for the Respondents:
S.C.

Constitution of India-Art-300-A- Construction
of link road-Bhumidhari Land of petitioner
utilized
without
acquisition-without
compensation-even the compensation offered
during pendency of writ petition-amount-land
garbing by mighty state-direction issued to
take recourse of procedure contained in land
acquisition Act-with liberty to file referencepetition allowed with cost of Rs. 25000/-
payable within two month.

Held: Para-7
Though the Land Acquisition Act, 1894 has
been repealed after coming into force of Act
of 2013, with effect from 1.1.2014, yet
considering the facts and circumstances of
this case and keeping in view that the land
of the petitioner was taken in the year
2009, when the Land Acquisition Act, 1894
was in force, we direct that proceedings for
awarding compensation be taken, treating
section 4 notification under the Land
Acquisition Act, 1894 to have been issued
as on this date i.e. 27.5.2014 and to make
the award under the provisions of the Act of
1894, after hearing the parties and in
accordance with law, within a period of six
months from today. The petitioner shall also
have the liberty to file a Reference under
section 18 of the Act and pursue the
remedies available to him under the said
Act of 1894. Needless to say that the