JUDGMENT :

Ashutosh Srivastava, J.

1. This Intra-Court Appeal has been filed by the State-respondents assailing the judgment and order of the learned Single Judge dated 30.8.2018 passed in Writ-A No. 15360 of 2018 (Ashif Ali v. State of U.P. and 2 others) whereby the writ petition has been allowed with cost of Rs. 10,000/- directing the appellants/respondents to conduct a fresh physical efficiency test of the petitioner/respondent after six weeks. Further direction has been issued to the appellants/respondents to keep the original records pertaining to the writ petitioner/respondent in a sealed cover and transmit the same to the Senior Superintendent of Police, Mathura for its safe custody, while considering the petitioner's claim for compassionate appointment afresh.

2. The appeal was filed with a delay of 150 days. This Court vide order dated 5.3.2019 had condoned the delay and directed the office to allot a regular number to the appeal. Learned counsel for the appellant points out that pursuant to the order dated 22.2.2017 passed in Writ-A No. 18981 of 2014, the writ petitioner/respondent was called to participate in the physical efficiency test on 7.5.2018 after he had furnished a declaration of his fitness to take the physical efficiency test and actually participated therein, but failed. The factum of participation in the test aforesaid was disputed by the writ petitioner/respondent on the ground that he had met with an accident on 4.5.2018 after submitting the fitness certificate and was compelled to participate in the physical efficiency test with a fractured leg. Since, the order dated 5.3.2019 recorded the fact that the writ petitioner/respondent had not participated in the test, a modification of the order dated 5.3.2019 was sought. The said application was turned down by this Court vide order dated 19.4.2019 holding that the appeal itself be decided on merits and all points available may be raised during the hearing of the appeal.

3. The parties have exchanged affidavits reiterating their respective stands.

4. Learned counsel representing the writ petitioner/respondent opposing the appeal has filed a counter-affidavit stating inter-alia therein that the father of the writ petitioner/respondent was a permanent employee posted as Constable who admittedly died in harness on 31.3.2005. The writ petitioner/respondent applied for compassionate appointment for the post of Sub-Inspector vide application dated 16.2.2008. The writ petitioner/respondent was permitted to appear in the physical efficiency test for the post of S.I. (under Dying in Harness) Recruitment-2017, fixed for 7.5.2018. The petitioner/respondent was required to collect his admit card from the office of SSP, Mathura on 4.5.2018. The petitioner/respondent after collecting the admit card met with an accident on the same day i.e. 4.5.2018 resulting in fracture of his right leg and the right leg was put in plaster. He was advised to take complete rest for four weeks. It is stated that the information of the accident was intimated through registered post vide application dated 5.5.2018 alongwith medical certificate issued by the District Hospital, Agra. The petitioner was also advised to appear before the Board on 7.5.2018 i.e. the date fixed for the physical test and his claim for postponing his physical test in the next recruitment would be considered. However, the Board did not adhere to the request and the petitioner was compelled to participate in the physical efficiency test and was declared failed. The petitioner/respondent thereafter moved an application before the appellant No. 1 on 9.5.2018 requesting action against the Board. However, no action was taken and the result of the selection was declared on 23.5.2018 wherein the petitioner was declared not selected. The petitioner moved another application dated 31.5.2018 before the appellant No. 3 which too was rejected vide order dated 11.6.2018 holding that there is no provision for appearing as second chanc