Sanjeev Kumar Dwivedi & Others vs State Of U.P. & Others
2011 Latest Caselaw 6228 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

										  AFR
 
										Reserved
 
		Special Appeal No. 659 of 2010.
 
Sanjeev Kumar Dwivedi & others................Petitioners/Appellants.
 
					Versus
 
State of U.P. and others.	........	........ Respondents.
 
					And:
 
Special Appeal Nos.--474 of 2010, 475 of 2010, 476 of 2010, 477 of 2010, 478 of 2010 and 479 of 2010.   
 
					----------

Present:

(Hon. Mr. Justice Amitava Lala & Hon. Mr. Justice Ashok Srivastava)

Appearance:

For the Appellants : Mr. Om Prakash Singh.

For the Respondents : Mr. Zafar Naiyyer,

Additional Advocate General, &

Mr. Ravi Shanker Prasad,

Additional Chief Standing Counsel.

--------

Amitava Lala, J.-- All the aforesaid special appeals involve common question with regard to grant of an additional opportunity to the appellants-writ petitioners to clear the physical fitness test for the purpose of getting compassionate appointment as Sub-Inspector (Civil Police). Therefore, all the appeals have been heard together and are being decided by this common judgement having binding effect in all the special appeals, however, taking the Special Appeal No. 659 of 2010 as leading one.

These appeals are arising out of the judgements and orders dated 16th February, 2010 passed by the learned Single Judge dismissing the writ petitions of the appellants-writ petitioners, thereby declining from giving any direction to the respondent authorities to grant the writ petitioners an additional opportunity to clear the physical test. Uttar Pradesh Sub-Inspector and Inspector (Civil Police) Service Rules, 2008 (hereinafter called as the ''Rules, 2008') read with the Uttar Pradesh Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 (hereinafter called as the ''Rules, 1974') gives a source of compassionate appointment. But availability of such source can not give up characteristic of physical fitness test. It will be governed by the Rules, 2008.

Be that as it may, now we deal with the dispute involved herein. Mr. Om Prakash Singh, learned Counsel appearing for the appellants in these appeals, has contended before us that in the judgement dated 17th March, 2010 rendered in Special Appeal No. 353 of 2010 (Udaiveer Singh and others Vs. State of U.P. and others), reported in 2010 (2) UPLBEC 1125, this Division Bench was pleased to allow the candidates for second physical fitness test. Such order was passed on 17th March, 2010. The judgement and order of Udaiveer Singh (supra) was passed following a Division Bench judgement of this Court dated 20th December, 2006 delivered in Special Appeal No. 1602 of 2006 (Pankaj Kumar Vishnoi Vs. State of U.P. and others). In Udaiveer Singh (supra) this Court held that to avoid multiplicity of proceedings different stand should not be taken by the two Division Benches particularly when prayer is restricted only with regard to physical fitness test and not with regard to selection in service under the dying in harness category in consequence thereof. However, we have come to know that the operation of the original judgement in re: Pankaj Kumar Vishnoi (supra) has been stayed by the Supreme Court on 16th November, 2009. So far as Udaiveer Singh (supra) is concerned, a contempt proceeding was initiated by the concerned party which was stayed by the Supreme Court by an order dated 04th August, 2010. In any event, we have been further told that in the Supreme Court both the aforesaid matters are clubbed together for the purpose of analogous hearing. Therefore, pronouncement of this judgement was deferred. When considerable period is elapsed and no latest development has been made known to this Court, we placed the matter in the list on 29th November, 2011.

When Mr. Singh sought parity of the case with the judgement and order of Udaiveer Singh (supra), Mr. Zafar Naiyyer, learned Additional Advocate General, ably assisted by Mr. Ravi Shanker Prasad, learned Additional Chief Standing Counsel for the State, has brought to our notice the distinguishing features between Udaiveer Singh (supra) and the present cases.

Mr. Naiyyer has brought our attention to page 94 of the Special Appeal No. 659 of 2010 to show that in the call letter of Udaiveer Singh (supra) no condition was imposed with regard to any repeated physical fitness test because when such call letter was issued on 03rd January, 2004, no rule was available in this field. Subsequently, the Rules, 2008 came into force and after that in each of the call letters it has been specified that in the physical fitness test if one becomes unsuccessful, he will not get any opportunity for such further test. Even undertakings to that extent were called upon and the appellants hereunder gave their undertakings by way of affidavits, copies of which have been produced by him in this Court when direction was given to make those copies part of the record. Therefore, the cases hereunder and Udaiveer Singh (supra) are factually distinguishable in nature.

It is further contended by Mr. Naiyyer that Rule 15 (c) of the Rules, 2008, as amended on 02nd April, 2009, gives meaning of "physical efficiency test" as under:

"(c) Physical Efficiency Test.--"...Physical Efficiency Test of qualifying nature. The male candidates shall be required to complete a run of 10 kilometers in 60 minutes and the female candidates a run of 5 kilometers in 35 minutes." The procedure for conducting the Physical Efficiency Test shall be such as prescribed in Appendix-2."

Appendix-2 as mentioned in the aforesaid Rule is also quoted hereunder:

"APPENDIX-2

[See Rule 15 (e)]

Physical Efficiency Test for direct recruitment

Physical Efficiency Test.--The Physical Efficiency Test is conducted by a three member team comprising following members:

1. Sub-Divisional Magistrate/Deputy Collector:

2. Doctor/Sports Officer/National Cadet Corps Officer;

3. Deputy Superintendent of Police.

(a) The number of candidates [not more than 100 (one Hundred) in one day] for each such team so decided as not to affect the quality and procedure of the test. This Examination/Test shall be completed in one week in the entire State. Due to the excess number of candidates the Police Service Recruitment and Promotion Board may take a decision and determine the required time.

(b) The minimum physical standards for qualification for each test to be displayed very prominently on Boards in the Stadium/Police Line where ever the test is conducted before conducting the examination.

(c) The Physical Efficiency Test is only of qualifying nature and it has no effect on the Merit list. The result of this qualifying test be displayed on the notice board and if possible the Board's website is updated daily.

(d) The members of the team who found to give the wrong report wilfully would be liable for criminal proceedings.

(e) The result of Physical Efficiency Test is made available to the candidates on the same day. The list of pass/fail candidates is displayed on the Notice Board and the Board's website is uploaded daily. Once the examination of 100 candidates is completed, the list of successful candidates will be declared under the joint signatures of Sub-Divisional Magistrate/ Deputy Superintendent of Police/ Assistant Superintendent of Police.

(f) The result of this qualifying test be announced on mike mentioning measurements of each candidates test wise immediately after the test is over, displayed on the notice board and if possible the Board's website is updated daily.

(g) Only standardized equipments having Indian Standard Institute certification to be used for Physical Efficiency Test Examination.

(h) On declaration of the list of successful candidates in the Physical Efficiency Test, they would be sent to the designated Community Health Center Tehsil/ Headquarter and District Hospitals for medical examination."

Mr. Singh has further contended that before physical efficiency/ fitness test as per Rule 15 (c), one has to apply Rule 15 (b) of the Rules, 2008, as amended on the same date, which speaks about the issuance of call letters. Such call letters should reach at least a week before the examination as per Rule 15 (b). Here, the call letters were issued on 20th August, 2009, whereas physical fitness tests were held on 26th, 27th and 28th August, 2009. For the purpose of better understanding such Rule 15 (b) of the Rules, 2008 is quoted hereunder:

"(b) Call Letters-- The Board will ensure that the copy of certificates shall be examined and compared with original certificates at the time of Physical Standard Test. After getting the Application Form scanned through computer, computerised call letter will be issued to eligible candidates through the same Post Office/ Bank from where Application Form was purchased/submitted. The Board may also use any other appropriate means of sending call letter after a through consideration. Code/name/postal address/ place of the examination centre along with the date and time of the Physical Standard Test, Physical Efficiency Test and medical examination will be clearly mentioned in the call letter. Documents with which the candidates are required to reach for the examination will be clearly indicated in the call letter. Call letter should reach at least a week before the examination. In case call letter is not received till a week before beginning of the examination candidates any contact helpline, serial code of the Application Form will have to be given in this regard. Duplicate call letter will be issued by the Board."

Mr. Naiyyer has contended before us that this Division Bench itself in the judgement reported in 2010 (1) UPLBEC 26 (Vipin Bihari Singh and others Vs. State of U.P. and others) has held that once the candidates participated in the selection process without any demur, they are estopped from complaining that the selection process was not in accordance with the rules. If they thought that the advertisement and selection process were not in accordance with the rules, they could have challenged the advertisement and selection process without participating in the selection process.

According to Mr. Singh, coming of the Rules, 2008 will no way create any obstacle to the appellants. After promulgation of the Rules, 2008 and amendment thereof in 2009, in Special Appeal Defective No. 330 of 2010 [State of U.P. through Secretary Home (Police) and others Vs. Amit Shahi] another Division Bench of this Court by its order dated 10th May, 2010 followed the ratio of Pankaj Kumar Vishnoi (supra) and directed to provide one more opportunity to the respondent therein for qualifying the physical test but the result of the same will not be declared without the leave of the Court. Several Division Benches of this Court have also passed similar orders, which are dated 24th May, 2010 in Special Appeal No. 294 of 2010 [Arun Kumar Vs. State of U.P. through Secretary, Home (Police Section) & ors.], dated 10th May, 2010 in Special Appeal No. 616 of 2010 (Neeraj Pawar & another Vs. State of U.P. and others), dated 01st September, 2010 in Special Appeal Defective No. 790 of 2010 (State of U.P. and others Vs. Arun Kumar), dated 06th October, 2010 in Special Appeal Defective No. 908 of 2010 (State of U.P. Thru' Secretary Deptt. Of Home Police Sec. & ors. Vs. Bhola Shankar Upadhyay).

According to us, all those orders are interim in nature and the appellants are interested only to get such type of interim orders to serve the purpose not the final disposal. Such interim orders have no binding effect upon this Court in pronouncing its final judgement.

According to us, Rule 15 (b) of the Rules, 2008 definitely says that call letters would reach to the candidates at least a week before the examination. However, such rule is made for the purpose of convenience of the candidate. Therefore, if one feels inconvenience in attending the examination on the due date, he can definitely apply for duplicate call letter as per Rule itself. But once one has received the call letter and participated in the physical fitness test and that too either on the marginally before or after the expiry of the period, he can not turn around and say that period of one week as meant for reaching call letters as per Rule 15(b) of the Rules, 2008, has not been followed properly. It has not caused harm to the appellants but they have got the opportunity of participating in the physical fitness test. Against this background, service of call letters can, at best, be called irregular but not illegal to get any equitable justice. Moreover, we can not deviate from our own judgement regarding right of the participants after participation in a selection process based on the judgements of the Supreme Court as well as Division Benches of this Court.

So far as second limb of argument regarding parity of the case with Udaiveer Singh (supra) is concerned, we are of the view that there is a fallacy of argument on the part of the appellants. In Udaiveer Singh (supra) this Division Bench has not propounded a ratio to apply for all time to come. Such order was passed in an exceptional circumstance out of concession and to avoid the multiplicity of the proceedings between the ratio of such case and Pankaj Kumar Vishnoi (supra), which was passed earlier. But now we have come to know that the case of Pankaj Kumar Vishnoi (supra) has already been stayed by the Supreme Court. Without going into further discussion in this regard, we hold and say that in Udaiveer Singh (supra) the Court also indicated that no relaxation would be shown in respect of the candidates who are to be appointed in the police service, relying upon the judgement of the Supreme Court reported in 2007 (6) AWC 6075 (SC) [I.G. (Karmik) and others Vs. Prahlad Mani Tripathi] when the learned Counsel appearing for the appellant therein specifically contended that they are not asking any relief with regard to appointment on compassionate ground but they only require an opportunity of physical test because they were not prepared for the physical fitness test in the earlier occasion due to shortage of time. But when the same is prohibited by the rules applicable prospectively and condition of the advertisement, whereby undertakings are also obtained from the candidates for only one physical fitness test, and if similar order is passed even thereafter, it will make the rules scrap. The prayer/s will have to be turned down when rules are specific in this regard and undertakings are given by the candidates and particularly when the service is a police service, where fitness and discipline are utmost requirements irrespective of their appointments either for physical work or for ministerial work attached to police department. Importance of fitness and discipline in the police force is the order of the day, as observed by the people in the common parlance. Therefore, if any relaxation is shown therein, such relaxation may affect the society at large and, as such, no routine order is to be passed on that score. Secondly, after introduction of rules for recruitment from the category of dying in harness, as one of the sources, it looses character of exception so far as physical fitness test is concerned. Solitary order of the Court, if any, passed in an extraordinary circumstance is an exception to rule, which can not create precedent for the future but the ratio of this judgement will prevail.

Having so, we are not in a position to pass any affirmative order in favour of the appellants. Hence, the special appeals are dismissed, however, without imposing any cost.

Interim order, if any, stands vacated.

(Justice Amitava Lala)

I agree.

(Justice Ashok Srivastava)

Dated: 30.11.2011.

SKT/-

Hon'ble Amitava Lala, J.

Hon'ble Ashok Srivastava, J.

Under the authority of the Hon'ble Chief Justice additional cause list has been printed for the purpose of delivery of judgement and the same has been delivered at 02.00 P.M. in the Court upon notice to the parties.

The special appeal is dismissed, however, without imposing any cost.

Dt./- 30.11.2011.

SKT/-

For judgement and order, see order of the date passed on the separate sheets (eight pages).

Dt./-30.11.2011.

SKT/-