Allahabad High Court
Bhairav Kumar Mishra vs State Of U.P. Thru. Prin. Secy. ... on 1 March, 2023
Bench: Vivek Chaudhary
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 5
Case :- WRIT - A No. - 30925 of 2019
Petitioner :- Bhairav Kumar Mishra
Respondent :- State Of U.P. Thru. Prin. Secy. Deptt. Home. Lko And Others
Counsel for Petitioner :- Manoj Kumar Mishra,Mohammad Aslam Siddiqui,Piyush Tripathi,Shashi Kant Tripathi
Counsel for Respondent :- C.S.C.
Hon'ble Vivek Chaudhary,J.
Heard learned counsel for parties.
Petitioner has approached this Court challenging the order dated 17.06.2019.
Learned Counsel for petitioner submits that father of the petitioner expired on 18.06.2001 in a road accident while working as Sub-Inspector in U.P. Police. Petitioner has completed his B.A. in the year 2001 and has also completed his M.A. in 2003. He is also having NCC (B) Certificate. Petitioner moved an application for appointment under Dying in Harness Rules, 1974 on 26.06.2001. His application for the same was kept pending for four years and finally he was called for Physical Efficiency Test on 27.06.2005. Petitioner failed to clear the Physical efficiency Test.
Counsel for the petitioner further submits that there never was any provision of conducting Physical Efficiency Test for applicants under Dying in Harness Rules. However, D.I.G. by a communication dated 22.01.2005 introduced Physical Efficiency Test for applicants for compassionate appointment. Petitioner was called for same and declared fail in the same. At the time he moved his application for compassionate appointment, Rules of 1974 was applicable which does not provide for any Physical Efficiency Test for appointment. But in violation of the Rules of 1974, petitioner was asked to participate in the physical efficiency test. Alternatively, even otherwise respondents ought to have considered appointment on any Class III post as per qualification of the petitioner for which Physical Efficiency Test is not required. But, the said exercise is not conducted by the respondents and contrary to the rules, petitioner is being offered Class IV post.
Learned Standing Counsel has opposed the submission made by learned counsel for petitioner and submits that there is no illegality in the impugned order dated 17.06.2019. He further adds that the petitioner himself has consented to an appointment under Class IV category.
In support of his case petitioner has relied upon judgment dated 10.03.2017 passed in Writ Petition No.59295 of 2015 (Vikrant Tomar & 5 others vs. State of U.P. & 2 others). In the said writ petition a Co-ordinate Bench while looking into a similar circumstance of appointment of Sub-Inspector (Civil Police) on compassionate ground, relevant portion of the said judgment reads as:
" There is another aspect of the mater. The petitioners' applications were received by the respondents prior to the coming into force of the Rules, 2015 and therefore their applications would have to be considered according to the Rules then in force."
Thereafter referring to the judgment of the Apex Court in Canara Bank & another vs. M. Mahesh Kumar reported in (2015) 7 SCC 412, and judgment of a Division Bench of this Court in the case of State of U.P. vs. Mahaveer Singh; 2016 (2) ADJ 882, relevant portion of the said judgment reads as:
" .....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."
Thus it was held that the Rules which are applicable on the date when application was moved are to be applied for appointment. Hence, petitioner is entitled for appointment as per the Rules applicable at the time he moved his application for compassionate appointment. By no stretch of imagination the said amendment of Rules in the year 2005 can be applied in case of petitioner.
Thus, the writ petition is allowed and the impugned order dated 17.06.2019 cannot stand and is hereby set aside.
Respondents are directed to consider the case of petitioner for appointment on a Class III post of their choice as per his qualification in accordance with the Rules applicable. The said exercise shall be completed within a period of four months from the date of production of certified copy of this order.
.
[Vivek Chaudhary J.]
Order Date :- 1.3.2023
-Amit K-
