JUDGMENT Hon’ble Surya Prakash Kesarwani, J.—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 respondent Nos. 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. 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 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. 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 v. 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. 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. 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 4.8.2006 was fully applicable w.e.f. 4.8.2006 and no error was committed by the Collector taking into consideration the policy dated 4.8.2006 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 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. In the case of Commissioner of Municipal Corporation, Shimla v. Prem Lata Sood and 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 rule-making 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. 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 and others, JT 1996(6) SC 306 and State of Punjab and another v. M/s Devans Modern Brewaries Ltd. and another, 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 v. 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 v. 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 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 in State of Tamil Nadu v. Hind Stone and others, 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. 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 Singh v. Government 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. 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 v. R. Padmnabhan, (2003) 7 SCC 270 , Kuldeep Singh v. Government of Delhi, (2006) 5 SCC 702 and Stae of Tamilnadu v. 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 dying-in-harness rules 2004. In the present set of facts, the application for appointment on compassionate ground was moved on 21.4.1998 and the 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. 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. —————