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2010 Supreme(All) 630
[2010(3) ADJ 179]
ALLAHABAD HIGH COURT
BEFORE : SUDHIR AGARWAL, J.
ANURAG YADAV AND OTHERS ....Petitioners
Versus
STATE OF U.P. AND OTHERS ....Respondents
(Civil Misc. Writ Petition No. 56092 of 2009 with 40533, 33429, 40534 of 2009, decided on 16th February, 2010)
Counsel :
Ashok Khare,Siddharth Khare for the Petitioner; S.N. Srivastava, Satish Chaturvedi, C.S.C. for the Respondents.
Headnote:Appointment—Compassionate appointment—To post of Sub-Inspector—Petitioners appeared in Physical examination, but could not complete specified distance within prescribed time—For recruitment to post of Sub-Inspector petitioners have to satisfy requirements of Physical standard and efficiency, etc.—With respect to procedure of recruitment, etc., petitioners have no vested right so as to be tested according to provisions as were applicable at the time when they made an application seeking compassionate appointment—Only right, petitioners possess was to be considered for compassionate appointment in accordance with Rules as applicable to service—In matter of compassionate appointment, there is no advertisement, and no representation by respondents, except that candidate is given an opportunity to be considered for compassionate appointment—And, for that purpose, eligibility qualifications, etc., applicable at the time of filling in vacancy, would be applicable—Appointing authority may satisfy itself that candidates will be able to maintain minimum standards of work and efficiency expected on post—Therefore, respondents cannot be said to have erred in requiring petitioners to satisfy physical efficiency test as per standard set out in Rule 15(e) of 2008 Rules as amended in 2009—Contention of petitioners cannot be accepted that they were not given sufficient time, because petitioners were expected to maintain physical standard and efficiency through out, and as and when called to satisfy same—And, having failed to do so, and in absence of any provision for fresh opportunity, no mandamus can be issued—Court also declined to exercise discretion in favour of appellant on regards advanced age of petitioners for such appointments. [U.P. Sub-Inspector and Inspector (Civil Police) Service Rules, 2008—Rules 2, 8, 15—U.P. Recruitment of Dependants of Government Servants (Dying in Harness) Rules, 1974—Rule 8]. [Paras 4, 16, 17, 18, 19, 20 and 21]
Honble Sudhir Agarwal, J.—All these four petitions involve common questions of law and facts and, therefore, as agreed by learned counsel for the parties they are being decided by this common judgment under the Rules of the Court at this stage.
2. In Writ Petition No. 56092 of 2009 four petitioners have come up to this Court under Article 226 of the Constitution of India seeking a writ of mandamus commanding the respondents to permit the petitioners to appear afresh in physical examination for compassionate appointment as Sub-Inspector (Civil Police) and to discard the result of the physical examination of petitioners held on 26/27.8.2009 and to declare the same of no legal consequences.
3. That facts in brief as borne out from the writ petition are that the father of the petitioners were permanent members of Police Force of the State of U.P. The fathers of petitioners No. 1, 2 and 4 were employed as Sub-Inspector (Civil Police) while the father of petitioner No. 3 was Head Constable. The petitioners fathers died in harness on 18.6.2004, 10.11.2006, 8.2.2005 and 16.6.2005 respectively. The petitioners possess the requisite qualification necessary for appointment to the post of Sub-Inspector, approached the respondents for giving them compassionate appointment as Sub-Inspector (Civil Police). Initially the respondents pursuant to resolution passed by the Special Recruitment Board constituted by the Director General of Police, decided not to make any appointment on the post of Sub-Inspector under the provisions of U.P. Recruitment of Dependants of Government Servant (Dying-in-Harness) Rules, 1974 (hereinafter referred to as the “1974 Rules”) but the said resolution having been struck down by this Court in Writ Petition No. 4746 of 2008, Mukesh Shukla and others v. State of U.P. and others connected with Writ Petition No. 63543 of 2008, Amit Chaudhary v. State of U.P. and others, decided on 7.8.2009, the respondents decided to consider the claim of petitioners for compassionate appointment and accordingly call letters were issued through special messenger. A call letter dated 17.8.2009 for appearing for physical test on 26.8.2009 was received by the petitioner No. 1 on 22.8.2009. Similar letter dated 16.8.2009/20.8.2009 was received by petitioner No. 2 on 22.8.2009. The petitioner No. 3 received call letters dated 12.8.2009 and 19.8.2009 on 22.8.2009 and petitioner No. 4 received call letter dated 18.8.2009 on 22.8.2009.
4. All these petitioners appear in physical examination on 26.8.2009 but could not complete the specified distance within prescribed time, i.e., 10 kms. In 60 minutes. It is said that the petitioners did not get sufficient time for preparation of the matter inasmuch as call letters were issued at quite a later stage, i.e., four days before the date of physical test and, therefore, the petitioners could not prepare themselves for the said test. The manner in which the respondents have conducted physical test is wholly arbitrary and the petitioners should be directed to be allowed physical test afresh otherwise the action of the respondents is wholly arbitrary and discriminatory.
5. In Writ Petition No. 40533 of 2009, two petitioners, Zahir Ahmad and Anoop Kumar Singh, who have also failed to satisfy physical efficiency test have approached this Court and relief sought therein is similar to that of Writ Petition No. 56092 of 2009. The only distinction in this case is that after application submitted by both the petitioners seeking compassionate appointment on the post of Sub-Inspector in Civil Police, when they were denied recruitment on the post of Sub-Inspector in view of the decision taken by the Special Recruitment Board constituted by the Director General of Police, the petitioner No. 1, Zahir Ahmad joined Mukesh Shukla and others in Writ Petition No. 4746 of 2008 (supra) which was allowed by this Court on 7.8.2009. It is said that the petitioner No. 2, Anoop Kumar Singh also filed a similar writ petit
