JUDGMENT

Dipak Misra, J.

Regard being had to the commonality of controversy of the appeals were heard together and are disposed of by a common order. For the sake of convenience, the facts from Civil Appeal Nos. 2366-2367 of 2011 are adumbrated herein.

2. The gravamen of grievance that has been assertively amplified and pronouncedly stressed by the appellants, State of Uttar Pradesh and its functionaries, in these appeals by special leave is that the Division Bench of High Court of judicature at Allahabad by orders dated 20.12.2006 and dated 27.08.2009 passed in Special Appeal No. 1602 of 2006 and in Review Application No. 172835/2007 respectively has reversed the verdict of the learned Single Judge and further declined to review the same as a consequence of which erroneous directions have been issued pertaining to compassionate appointment in a higher post in violation of the norms and procedure.

3. The facts which are imperative to be stated are that the father of the respondent, a Head Constable in the Department of Police breathed his last on 22.04.2002 in harness. The respondent, being a dependant on his deceased father, moved an application for grant of compassionate appointment before the Superintendent of Police, Rampur on 20.12.2002. After consideration of the application a decision was taken at the U.P. Police Headquarters to offer him an appointment on the compassionate basis on the post of Constable and in accordance with such decision a letter of appointment dated 9.5.2003 was issued by the Superintendent of Police and, Rampur and he was required to join on 11.5.2003. Instead of joining, the respondent preferred Civil Misc. Writ Petition No. 23703 of 2003 for issue of writ of a Mandamus to the competent authority to extend him the benefit of compassionate appointment on the post of Sub-Inspector (Civil Police) as he was eligible for the said post. Be it noted, during the pendency of the writ petition the respondent in pursuance of the order dated 9.5.2003 joined on the post of Constable on 28.6.29003. Eventually, on 16.3.2004 the writ petition was dismissed as withdrawn.

4. As the facts are further uncurtained, a physical test examination was conducted from 27.6.2005 to 29.6.2005 for the post of Sub-Inspector (Civil Police) and the petitioner participated in the said physical examination but could not become successful as a result of which his candidature for the post of Sub-Inspector was rejected. It is worth noting in that physical test 460 candidates appeared out of which 263 candidates fulfilled the minimum physical requirements and accordingly they were selected. 5. Calling in question his non-selection and non-appointment he preferred Writ Petition No. 63596 of 2006 with a prayer for grant of compassionate appointment on the post of Sub-Inspector (Civil Police) without subjecting him to appear in any physical test examination and interview. Learned Single Judge vide order dated 23.11.2006 dismissed the Writ petition on two counts, namely, the second writ petition for issuance of grant of compassionate appointment was not maintainable as the earlier writ petition was dismissed being withdrawn without any liberty to refile another petition and secondly, the prayer for offering the post of Sub-Inspector (Civil Police) without subjecting him to undergo the physical efficiency test was absolutely misconceived. 6. The aforesaid order passed by learned Single Judge was assailed in Special Appeal No. 1602 of 2006 and the Division Bench came to hold that the first dismissal was not an impediment for entertaining the second writ petition; and that the respondent who was physically examined in the year 2002 and with passage of time one may become unfit or more fit. Being of this view it proceeded to direct as follows :-

“As such the writ petition is allowed. The writ petitioner appellate will be granted compassionate appointme