JUDGMENT :

1. Heard learned counsel for the petitioner and Sri Chandan Kumar learned Standing Counsel for the State respondents.

2. The present petition challenges an order of 24 May 2021 pursuant to which the respondents have proceeded to reject the application of the petitioner for being accorded appointment on compassionate grounds holding that a divorced daughter would not fall within the ambit of the 1974 Rules. The petitioner questions the correctness of that view taken firstly on the ground that under the 1974 Rules the expression "unmarried" as prefixed to the word "daughter" already stands struck down by the Court in Smt. Vimla Srivastava v. State of U.P. and Another, 2016 (1) ADJ 21 (DB). According to learned counsel, the definition of family as employed in the 1974 Rules is thus liable to be read as encompassing daughters per se of the deceased government servant. Additionally, learned counsel for the petitioner draws the attention of the Court to the decision of the Court in State of U.P. And Others v. Noopur Srivastava, 2019 (2) ADJ 585 wherein it was specifically held that a divorced daughter would fall within the ambit of the 1974 Rules. Dealing with that question the Division Bench in Noopur Srivastava held thus:-

"23. Further, under Rule 2 (c) of Rules of 1974 there is no express exclusion that a "divorced daughter" is not entitled to appointment under the Rules nor the expression "Unmarried" daughter has been clarified by putting the words to the effect that it means a "daughter never married" or "daughter not married" and being so the secondary meaning of term "Unmarried" cannot be ignored and is liable to be taken into account in the given circumstances in context of beneficial legislation i.e. Rules of 1974.

24. On the basis of aforesaid discussion in the context of Rules of 1974, we hold that the expression "divorced daughter" is included/implicit in the expression "Unmarried daughter". Accordingly we hold that a "divorced daughter" is entitled to compassionate appointment if she was dependant, on the date of death of her father/mother (the employee) and the marriage was dissolved legally either prior to or after the date of death of bread earner of the family and she remains "not married" at the time of appointment.

25. In addition, the judgment dated 4.7.2011 passed in Writ Petition No. 2707 (SS) of 2004 (Gudiya Awasthy v. State of U.P. was challenged in the Special Appeal No. 19 of 2012 and this Court vide judgment dated 4.9.2018 has set aside the judgement dated 04.07.2011 and being so, no reliance can be placed on the judgment dated 04.07.2011 as the effect of setting aside a judgment in the eye of law is that, the judgment which has been set aside is not in existence and a judgment/order by which the judgment is set aside would be the operative decision in the case. According to doctrine/principle of "merger" original decision merges in appellate decision. The logic underlying the doctrine of merger is that there cannot be more than one decree or order governing the same subject matter at a given point of time. Thus, judgment dated 04.07.2011 passed in Gudiya Awasthy's case is liable to be ignored and argument based on the same are not sustainable and liable to be rejected."

3. Sri Chandan Kumar learned Standing Counsel, on the other hand, drew the attention of the Court to a recent decision of the Supreme Court in The Director of Treasuries in Karnataka And Another v. V. Somyashree, Civil Appeal No. 5122 of 2021 to contend that the aforesaid decision of the Supreme Court is a binding authority in support of the proposition that a divorced daughter cannot claim benefits of compassionate appointment.

4. It is these rival submissions which fall for consideration. Before proceeding to consider the merits of the submission of the State resting on V. Somyashree, it would be appropriate to briefly advert to the legal position as enunciated by this Court dealing with the provisions of the 1974 Rules.

5. It may at