State Of U.P. Thru Secy. & 2 Others vs Vikrant Tomar & 5 Others
2017 Latest Caselaw 775 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R. 
 
Court No. - 21
 

 
Case :- SPECIAL APPEAL DEFECTIVE No. - 301 of 2017
 
Appellant :- State Of U.P. Thru Secy. & 2 Others
 
Respondent :- Vikrant Tomar & 5 Others
 
Counsel for Appellant :- Rama Nand Pandey
 
Counsel for Respondent :- Siddharth Khare
 
AND
 
Case :- SPECIAL APPEAL DEFECTIVE No. - 300 of 2017
 
Appellant :- State of U.P. through Secretary & 2 others
 
Respondent :- Shahanshah & 19 others
 
Counsel for Appellant :- Rama Nand Pandey
 
Counsel for Respondent :- Siddharth Khare
 
Hon'ble V.K. Shukla,J.

Hon'ble Mahesh Chandra Tripathi,J.

(Per: Hon'ble M.C. Tripathi, J.)

Ref: Civil Misc. Delay Condonation Application Nos.162397 & 162387 of 2017

For the reasons stated in affidavits filed in support of delay condonation applications, as the same constitutes sufficient cause for condoning delay in filing special appeal, the delay condonation applications are allowed and the Special Appeals are treated to have been filed well within time. 

Ref: Special Appeal

1. Heard Shri R.N. Pandey, Standing Counsel appearing for the respondents-appellants and Shri Ashok Khare, Senior Advocate assisted by Shri Siddharth Khare, appearing for the respondents-petitioners.

2. Both intra court appeals under Chapter VIII Rule 5 of Allahabad High Court Rules, 1952 have been preferred by the State of U.P. through Secretary, Department of Home (Police Section) Government of UP, Lucknow and two others  assailing the judgement and order dated 10.3.2017 passed by learned Single Judge of this Court in Writ A No.59295 of 2015 (Vikrant Tomar & 5 ors vs. State of U.P. & 2 others), wherein he has proceeded to allow the writ petition with a direction to the appellants-respondents to consider the claim of the petitioners for appointment on compassionate ground in the light of the observations made in the judgement within three months, and the order dated 10.3.2017 passed in Writ A No.68006 of 2015 (Shahanshah and 19 ors vs. State of UP and 2 ors) wherein a direction was issued to the respondents to consider the claim of petitioners for appointment on compassionate ground in the light of observations made in connected Writ A No.59295 of 2015.

3. The factual situation that is accepted before us is that fathers of the petitioners were working on different posts in police department and they died in harness between the years 2011 to 2014. After the death of their fathers, the petitioners submitted their applications seeking appointment on compassionate ground between the years 2011 to 2015. Their applications were processed and after removing the shortcomings, the complete files relating to the petitioners were submitted to the Police Headquarters, Allahabad. Thereafter the physical efficiency test was fixed from 17.8.2015 to 19.8.2015, which was held with regard to some other persons, who had applied for compassionate appointment but the petitioners were not informed in this regard. Thereafter some of the petitioners had preferred separate writ petitions seeking directions for permitting them to participate in the physical efficiency test and all the writ petitions were disposed of by this Court on 27.7.2015 directing the respondents-appellants to permit the petitioners to take part in the physical efficiency test, which was scheduled to be held from 17.8.2015 to 19.8.2015. In pursuance thereof, the order dated 11.8.2015 (impugned in the writ petition) had been passed by the Deputy Inspector General of Police (Establishment), Allahabad rejecting the petitioners' representation as well as the claim of the petitioners for appointment on compassionate ground.

4. Aggrieved, Vikrant Tomar & 5 ors (respondents-petitioners in Special Appeal Defective No.301 of 2017) had preferred Writ A No.59295 of 2015 (Vikrant Tomar & 5 ors vs. State of UP & 2 ors) seeking a direction to the State respondents to hold their physical efficiency test for appointment on the post of Sub Inspector in Civil Police on compassionate ground and learned Single Judge has proceeded to allow the writ petition with following direction:-

"In the case of Mahaveer Singh (supra) also the application seeking compassionate appointment was already before the authorities before the office memorandum of 3rd February, 1994 stood rescinded by the 2005 circular which provided ex- gratia payment in lieu of appointment on compassionate ground.

The contention of the learned standing counsel that the Dying in Harness Rules, 1974 would have no application in the present case in view of the provisions of Section 2 of the Police Act, 1861 must necessarily be rejected in view of the Police Head Quarter circular dated 22.5.2014 which provides that claims for compassionate appointment in the police department would be considered in the list of the provisions of the U.P. Recruitment of Dependents of Government Servant Dying in Harness Rules, 1974. In this view of the matter, the judgments in the case of Chandra Prakash Tiwari (supra) and Vijay Singh (supra) would have no application in the present case.

Therefore, in the totality of the facts of the case and the law laid down by the Supreme Court in M. Mahesh Kumar (supra) in my opinion, since the claim of the petitioners was already pending before the respondents prior to coming into force of the Rules, 2015, the same was required to be considered as per the procedure and Rules existing prior to the coming into the force of the Rules, 2015. So far as the question of undergoing physical efficiency test is concerned that would also have to be with reference to the procedure for compassionate appointment existing prior to the coming into force of the Rules 2015.

In the event, the impugned order dated 11.8.2015 is quashed. The writ petition is allowed. The respondents are directed to consider the claim of the petitioners for appointment on compassionate ground in the light of the observations made above within three months from the date of receipt of the certified copy of this order."

5. Shahanshah and 19 others (respondents-petitioners in connected Special Appeal Defective No.300 of 2017), also preferred Writ A No.68006 of 2015 (Shahanshah and 19 ors vs. State of UP and 2 ors) and the said writ petition was also disposed of on the same day i.e. on 10.3.2017 with a direction to the respondents-appellants to consider the claim of petitioners for appointment on compassionate ground in the light of observations made in connected Writ A No.59295 of 2015.

6. It appears from the record in question that the appellants-respondents had taken a decision on 26.6.2014 to fix the date for holding physical efficiency test for all the applicants, who had applied for appointment on compassionate ground from 24.11.2014 to 26.11.2014. In the said order, it was also mentioned that all the matters relating to compassionate appointment were to be received by 15.10.2014 and the applications being received after 15.10.2014 seeking appointment on compassionate ground on the post of Sub Inspector in Civil Police were to be considered for physical efficiency test after 26.11.2014. Admittedly in the present matter, no physical efficiency test was held between 24.11.2014 to 26.11.2014 on the ground that during this period celebrations of Police Week 2014 were scheduled to be held in the Police Line, Lucknow. Thereafter a circular letter was issued on 17.7.2015 in which it had been provided that physical efficiency test was to be held between 17.8.2015 to 19.8.2015. The grievance of the petitioners-respondents before learned Single Judge was that at no point of time the petitioners had been called for physical efficiency test.

7. In this backdrop the claim has been set up by the petitioners-respondents before learned Single Judge that once the physical efficiency test, which was scheduled from 24.11.2014 to 26.11.2014, was postponed, then the cut of date 15.10.2014 would also disappear and would be of no relevance. There was no justification in not calling the petitioners to participate in the physical efficiency test took place from 17.8.2015 to 19.8.2015 and while rejecting the claim of the petitioners-respondents the department concerned had taken a stand that the selection on the post of Sub Inspector, Civil Police on compassionate ground, which was scheduled from 25th to 27th July, 2011 and 5th to 7th September, 2011 was subjected to challenge by 28 unsuccessful candidates, who had preferred Writ Petition No.73255 of 2011 (Vijay Shanker Yadav Vs. State of U.P. and others) alongwith other connected writ petitions and this Court vide its judgement dated 28.11.2014 observed that the Board constituted for the purposes of selection was found to be illegal and invalid and the same was constituted contrary to the provisions of  Rule 5 (1) of the Uttar Pradesh Sub-Inspector and Inspector (Civil Police) Service Rules, 2008 and accordingly, a direction was also issued to reconstitute the selection Board strictly in terms of the Rules of 2008. The said order was subjected to challenge in Special Appeal No.654 of 2014 alongwith other connected Special Appeals and initially an interim order was passed by the Division Bench of this Court staying the operation of the judgment and order dated 28.1.2014. Finally, the Division Bench by its judgement dated 23.12.2014 had found that learned Single Judge was correct and the Division Bench upheld the judgment and order passed by learned Single Judge. The said order was again subjected to challenge by the State Government before the Apex Court in Special Leave Petition No.10587-10588/15 (State of U.P. Vs. Vijay Yadav and others) and the same was also dismissed by the Apex Court by its order dated 1.5.2015. The plea was taken by the department, that as per directives issued by learned Single Judge in Vijay Shanker Yadav's case (supra) the process of selection of candidates on compassionate ground for the post of Sub Inspector in Civil Police was to be undertaken and as such, the decision was taken to hold the physical efficiency test from 17.8.2015 to 19.8.2015. While rejecting the claim of the respondents-petitioners in the present round of litigation the department had also taken a view that the physical efficiency test had to be held in respect of those candidates who were the subject matter of selection consideration in the selection of 2011 and just to facilitate and implement the order passed by learned Single Judge, the date for physical efficiency test was fixed from 17.8.2015 to 19.8.2015 and since the petitioners were not among the candidates in that selection, they had not been called in the physical efficiency test, which was scheduled to be held from 17.8.2015 to 19.8.2015.

8. In this backdrop, the case has been set up before learned Single Judge that once the selection of 2011 itself had been set aside by this Court on the ground that the constitution of the selection Board itself was illegal and void and finally the said order was confirmed by the Supreme Court, then the rightful claim of the petitioners was liable to be considered on two grounds, firstly that by the time the said physical efficiency test had been held, the application forms of the petitioners seeking appointment on compassionate ground had already been filed before the authorities and were under pending consideration for according compassionate appointment and secondly the subsequent Rules known as 'U.P. Sub Inspector and Inspector (Civil Police) Service Rules, 2015' (in short, Rules of 2015) was notified on 19.8.2015 and paragraph 5 of Part III of the Rules of 2015, which relates to recruitment under the Note to sub rule (1), provides that personnel of the police department who died during service and whose dependents apply for the post of Sub Inspector of Police in the dependent of deceased category shall be recruited by the Board as per the policy decided by the Government restriction being that every year such posts shall not be more than 5 percent of the posts to be filled by direct recruitment against the vacancies arising out of the previously sanctioned posts of Sub-Inspector of Police.

9. The said claim was resisted by the State Government before learned Single Judge and the respondents-appellants tried to defend the fixing of cut of date of 15.10.2014 on the ground that applications seeking appointment on compassionate ground were being filed regularly by the claimants and therefore, some cut of date had to be fixed by which date the applications, which had already been received, could be considered and the remaining applications would be considered later. The claim of the petitioners-respondents was also resisted on the ground that once Rules of 2015 had come into force on 19.8.2015, then the entire claim is to be processed as per Rules of 2015. With regard to the cut of date for consideration i.e 15.10.2014, the reliance had been placed before learned Single Judge on the Division Bench decision of this Court in the case of State of U.P. Vs. Mahaveer Singh 2016 (2) ADJ 882 (paras 15, 19, 20 and 21) and the Full Bench decision of this Court in the case of Shiv Kumar Dube and others Vs. State of U.P and others 2014(2) ADJ 312 (paras 22 to 29).

10. In this backdrop, Shri R.N. Pandey, Standing Counsel appearing for the respondents-appellants submits that learned Single Judge has erred in law while directing the appellants for considering the claim of the petitioners for appointment on compassionate ground on the ground that on the date of consideration/holding selection for the post of Sub Inspector on compassionate ground, Rules of 2015 had come into force and whatever selection is being made on compassionate ground, the same would be considered strictly as per the existing rules. He further makes submission that it is well settled law that the appointment on compassionate ground is not a source of recruitment. The dependents of employees, who died in harness, do not have any special claim or right to employment except by way of the concession that may be extended by the employer under the rules or by a separate scheme to enable the family of the deceased to get over the sudden financial crisis. The claim of compassionate employment can be considered by the employer on the basis of existing rules. An appointment under the scheme can be made only when the scheme is in force. Mere fact, that an application was made when the scheme was enforced, will not by itself create a right in favour of the applicant. In support of his submission he has placed reliance on the judgement of Apex Court in State Bank of India vs. Raj Kumar  reported in 2010 (11) SCC 661. Regarding physical efficiency test under the compassionate employment, he has placed reliance on the judgement of this Court in Writ A No.34445 of 2015 (Vijay Shanker Yadav vs. State of UP and ors) decided 20.11.2015.

11. Lastly, Shri R.N. Pandey has contended that learned Single Judge has committed manifest error of law while allowing the writ petition in question ignoring the aforesaid legal proposition of law and once the new Rules of 2015 had come into force on 19.8.2015 when the applications of the petitioners were pending consideration, then claim was liable to be considered on the basis of rules applicable at the time of making the applications. In support of his submission, he has placed reliance on a Full Bench decision of this Court in Writ C No.41958 of 2008 (Anand Kumar Sharma vs. State of UP through Secretary and ors) decided on 13.2.2014.

12. Per contra Shri Ashok Khare, Senior Advocate assisted by Shri Siddharth Khare appearing for the petitioners submits that learned Single Judge has rightly proceeded in the matter and the judgements so cited by learned counsel for the respondents-appellants would not be attracted in the present matter. He submitted that the appellants-respondents tried to create a class among class whereas in the present matter, admittedly the appellants by an order dated 26.6.2014 had fixed the dates from 24.11.2014 to 26.11.2014 for holding physical efficiency test for all the applicants, who had applied for appointment on compassionate ground and the cut of date for receiving the applications relating to compassionate appointment was fixed as 15.10.2014. Once the physical efficiency test scheduled from 24.11.2014 to 26.11.2014 was postponed, then the cut of date i.e. 15.10.2014 would be redundant and would have no bearing in the matter and the same would also disappear. Thereafter the appellants had again fixed the dates from 17.8.2015 to 19.8.2015 for holding physical efficiency test. In this physical efficiency test the petitioners-respondents were not called merely on the ground that earlier the cut of date was fixed as 15.10.2014.

13. Shri Ashok Khare further submitted that in the order dated 11.8.2015 the appellants had also taken a plea for deferment of holding physical efficiency test that the selection on the post of Sub Inspector in Civil Police on compassionate ground, which was earlier scheduled from 25.7.2011 to 27.7.2011 and 5.9.2011 to 7.9.2011, was subjected to challenge by unsuccessful candidates by preferring Writ Petition No.73255 of 2011 and the same was also allowed by learned Single Judge on 28.11.2014 wherein it was held that the Board, which was constituted for the purpose of selection was contrary to the provisions contained under Rule 5 (1) of Rules of 2008 and consequently a direction was issued to reconstitute the selection Board. The order of learned Single Judge was subjected to challenge in Special Appeal No.654 of 2014. Thereafter the Division Bench dismissed the Special Appeals on 23.12.2014 and upheld the order of learned Single Judge. Aggrieved the State Government filed Special Leave Petition No.10587-10588 of 2015 (State of UP vs. Vijay Yadav and ors) and finally the Apex Court had approved the judgment and order passed by learned Single Judge and dismissed the Special Leave Petition on 01.5.2015. Thereafter a decision was taken by the respondents-appellants to hold the physical efficiency test from 17.8.2015 to 19.8.2015.

14. In this backdrop, Shri Ashok Khare, Senior Advocate submits that once the decision was taken for deferment of the earlier physical efficiency test, then for all practical purposes the cut of date 15.10.2014, which has been relied upon by the appellants while rejecting the claim of the petitioners, would have no relevance and the rightful claim of the petitioners could not be negated on this ground. Learned Single Judge has rightly intervened in the matter and directed the appellants to consider the claim of petitioners for compassionate employment. There is no infirmity or illegality in the order passed by learned Single Judge and as such, the present Special Appeal is liable to be dismissed.

15. Heard rival submissions and perused the record.

16. We have gone through the record in question and found that the respondent authorities had proceeded in great haste knowing the date of physical efficiency test to notify the Rules of 2015 as the last date of physical efficiency test was 19.8.2015 and date of notification of Rules of 2015 was also 19.8.2015. Admittedly the applications so moved by the petitioners were pending before the appellants prior to the issuance of the Rules of 2015. The claim of the petitioners has been rejected only on the ground that the Rules of 2015 had come into force on 19.8.2015. For deferment of physical efficiency test, which was earlier scheduled, a plea was taken by the department that earlier selection on the post of Sub Inspector in Civil Police had been challenged by certain unsuccessful candidates in Writ Petition No.73255 of 2011 (Vijay Shanker Yadav vs. State of UP and ors) alongwith other connected writ petitions. This Court vide its judgement dated 28.11.2014 declared the Board constituted for the purposes of selection to be illegal and invalid and a direction was given to hold the selection after reconstituting the selection Board. Once the appellants had lost upto Apex Court, then they have proceeded to take physical efficiency test of 423 candidates and the dates were fixed from 17.8.2015 to 19.8.2015. On close scrutiny of the case, this much is clearly reflected that the Rules of 2015 itself came into force on 19.8.2015 and admittedly prior to it, the physical efficiency test was already in progress i.e. between 17.8.2015 to 19.8.2015 and other similarly situated claimants had been asked to participate in the physical efficiency test and as such, Rules of 2015 has no application in the present case.

17. The main thrust of the appellants is that in the present matter the appellants had fixed the cut of date as 15.10.2014 providing that the applications, which had been received by that date, would only be considered and the candidates would be called for physical efficiency test. Once the respondents as per their own wisdom had proceeded to defer the physical efficiency test, which was scheduled to be held from 24.11.2014 to 26.11.2014, and fixed another date i.e. from 17.8.2015 to 19.8.2015, then in such situation for all practical purposes the earlier cut of date 15.10.2014 would have no application at all. Therefore, on this score the appellants have erred in law in rejecting the claim of petitioners and creating a class among class. At the said juncture, there was no whisper about the Rules of 2015. Admittedly the physical efficiency test was rescheduled from 17.8.2015 to 19.8.2015. It has also been apprised to the Court that all the petitioners had appeared in the physical efficiency test and they have cleared the same, therefore, in the garb of the judgements so cited before us the appellants cannot take a stand that since the Rules of 2015 had come into force on 19.8.2015, therefore, the claim of the petitioners-respondents is unsustainable. The said objection is unsustainable and is, accordingly rejected.

18. In the present matter, as we have already discussed in the earlier part of the judgement that each and every application concerning the petitioners' claim for compassionate employment, was processed by the district authorities and the same was forwarded to the police headquarters well within time. Admittedly their applications were filed before the police headquarters much prior to the cut of date 15.10.2014. In such circumstances, we are of the considered opinion that the rightful claim of the petitioners could not be rejected. There was no occasion to exclude the petitioners for appearing in the physical efficiency test. Once the earlier physical efficiency test, which was scheduled from 24.11.2014 to 26.11.2014, stood postponed, then the cut of date 15.10.2014 itself would be rendered irrelevant and by no stretch of imagination the appellants could ignore the rightful claim of the petitioners. The appellants could not have ignored the claims of persons whose applications had been received by the appellants after the cut of date as 15.10.2014 for the purpose of being called for physical efficiency test from 17.8.2015 to 19.8.2015. We are also of the considered opinion that once the physical efficiency test, which was scheduled to be held from 24.11.2014 to 26.11.2014, stood postponed and the said test was held after almost one year from 17.8.2015 to 19.8.2015, then the said cut of date has lost its efficacy and the petitioners' applications were received by the appellants prior to coming into force of Rules of 2015, and there was no scope for any discrimination in the matter. There is no infirmity or illegality in the order passed by learned Single Judge.

19. Consequently, the Special Appeal is dismissed.

Order Date :- 17.5.2017

RKP