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2010 DIGILAW 600 (ALL)

UDAYVEER SINGH v. STATE OF U. P.

2010-02-16

SUDHIR AGARWAL

body2010
JUDGMENT Hon’ble Sudhir Agarwal, J.—Heard Sri Ashok Khare, Senior Advocate, for the petitioners and learned Standing Counsel for the respondents. 2. Learned Standing Counsel states that since a pure question of law has been raised in this matter, he does not propose to file any counter affidavit and, therefore, as agreed by learned counsel for the parties, the writ petition has been heard finally and is being decided at this stage under the Rules of the Court. 3. The petitioners have sought a writ of mandamus commanding the respondents to grant them compassionate appointment as Sub-Inspector (Civil Police) treating the petitioners as Constable for that post within a period to be specified by this Court or alternatively to direct them to grant an additional opportunity to the petitioners to clear physical test within the period to be specified by this Court. 4. The facts in brief giving rise to the present dispute are as under. 5. The father of each of the petitioner was serving as either Constable or Head Constable or Sub-Inspector in the Police Department of the State of U.P. They expired while in harness. Considering the qualification possessed by the petitioners, they sought compassionate appointment on the post of Sub-Inspector. Their applications were forwarded to U.P. Police Head Quarters for consideration. Various letters were issued to the petitioners in 2004, 2005 and 2006 requiring them to appear for physical test, details whereof are as under : Sl.No. Petitioner’s Name Date of Letter Date of physical test 1. Udayveer Singh 18.06.2004 27.06.2005 2. Subhash Chandra Yadav 28.02.2005 15.03.2005 3. Mohd. Nadeem 19.06.2005 27.06.2005 4. Abdul Kalim Kha 02.03.2005 27.06.2005 5. Akhilesh Sharma March’ 2006 27.06.2005 6. Santosh Kumar Sharma 28.02.2005 27.06.2005 7. Om Prakash Rai 28.02.2005 27.06.2005 8. Ravi Shankar Yadav 28.02.2005 27.06.2005 9. Rajesh Kumar Singh 01.03.2005 28.06.2005 10. Girija Prasad Ojha 28.02.2005 27.06.2005 11. Smt. Pushpa Singh 19.06.2005 27.06.2005 12. Yogendra Kumar Singh 12.03.2005 27.06.2005 13. Hemant Kumar January’ 2004 28.06.2005 14. Vinod Singh 19.06.2005 27.06.2005 15. Ranvijay Singh 19.06.2005 27.06.2005 16. Hemant Kumar Verma 05.06.2006 28.06.2005 17. Siddharth Shankar Rai 19.06.2005 27.06.2005 18. Vivek Kumar Sharma 19.06.2005 27.06.2005 19. Kumari Priyanka 25.06.2005 27.06.2005 20. Lalit Kumar Sharma March’ 2005 27.06.2005 21. Arvind Kumar Pandey 21.06.2005 27.06.2005 22. Santosh Kumar Yadav 21.06.2005 27.06.2005 23. Mohd. Akil Ahmed 01.03.2005 28.06.2005 24. Kiran Dubey 19.06.2005 28.06.2005 25. Jamintri Devi 28.02.2005 27.06.2005 26. Mohd. Akeel Nil NIl 27. Siddharth Shankar Rai 19.06.2005 27.06.2005 18. Vivek Kumar Sharma 19.06.2005 27.06.2005 19. Kumari Priyanka 25.06.2005 27.06.2005 20. Lalit Kumar Sharma March’ 2005 27.06.2005 21. Arvind Kumar Pandey 21.06.2005 27.06.2005 22. Santosh Kumar Yadav 21.06.2005 27.06.2005 23. Mohd. Akil Ahmed 01.03.2005 28.06.2005 24. Kiran Dubey 19.06.2005 28.06.2005 25. Jamintri Devi 28.02.2005 27.06.2005 26. Mohd. Akeel Nil NIl 27. Subhash Chandra Verma 21.06.2005 NIl 6. Most of the petitioners appeared for physical test in June 2005. They were informed that they have failed in physical test on 20.10.2005. Other persons/petitioners claimed to have been issued similar communication for physical test in 2008-09 on various dates as is demonstrated hereinbelow, copies whereof have been collectively filed as Annexure-3 : Sl.No. Petitioner’s Name Date of Letter Date of physical test 1. Sanjeev Kumar Dwivedi 20.08.2009 28.08.2009 2. Dharmendra Kumar Yadav 12.08.2009 28.08.2009 3. Jeetendra Singh 06.08.2009 28.08.2009 4. Ashok Kumar Tripathi 12.08.2009 26.08.2009 5. Bijendra Singh 12.08.2009 26.08.2009 6. Surendra Vikram Singh 16.08.2009 26.08.2009 7. Gauran Pachauri 12.08.2009 26.08.2009 7. Those persons also were informed of having failed in physical test by communication issued in August 2009. The petitioners made representation in 2008 and 2009 that they should be given further opportunity to appear in physical test since they could not get enough time to prepare for physical test but no order has been passed by the respondents till date, hence petitioners have filed the present writ petition. 8. Sri Khare, learned counsel for the petitioners contended that in some of the matters, which earlier came before this Court, indulgence was granted by directing the respondents to give one more opportunity to those persons to appear in physical test and reliance is placed on judgment dated 22.2.2007 in Writ Petition No. 9702 of 2007 (Amit Shahi v. State of U.P. and others). 9. Having heard learned counsel for the parties at length, in my view, none of the petitioner in the present writ petition is entitled for any relief. 10. It has been specifically stated in para 19 of the writ petition that communications were issued to the petitioners on 20.10.2005 and August’ 2009 that they have failed in physical test but such orders have not been challenged in the writ petition and no relief has been sought for quashing the said orders. 10. It has been specifically stated in para 19 of the writ petition that communications were issued to the petitioners on 20.10.2005 and August’ 2009 that they have failed in physical test but such orders have not been challenged in the writ petition and no relief has been sought for quashing the said orders. So long as those orders rejecting the petitioners are not challenged and are not set aside, the relief sought in the writ petition for directing the respondents to consider the petitioner afresh for physical test cannot be considered. 11. Even otherwise, the petitioners have not been able to show any provision under which they are entitled to seek a writ of mandamus commanding the respondents to allow the petitioners another opportunity to reappear in physical test particularly when the respondents have informed the petitioners that they have failed to qualify physical test meant for the post of Sub-Inspector and they may apply for compassionate appointment to any other post than that of Sub-Inspector. The petitioners in their wisdom and discretion have opted not to make any such further application. No such averments has been made in the writ petition though the option provided to the petitioner for applying to another post for compassionate appointment is clearly mentioned in para 19 of the writ petition as under : “The said communication further indicated that in case the petitioner desired employment on any post other than the post of Sub Inspector then the petitioners could submit an application.” 12. It is not in dispute that the compassionate appointment in the case in hand is governed by U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 (herinafter referred to as “1974 Rules”). As is evident from Rule 5 (1) (1) & (2) to 1974 Rules, it permits compassionate appointment subject to the consideration that incumbent must possess requisite qualification and such other eligibility conditions as are necessary for such service. Though under Rule 8 (2) the procedure of selection, if included written test and interview by a selection committee, the same has been relaxed but it is further provided that the appointing authority in order to ensure that the incumbent possess requisite minimum standard necessary for the work and efficiency, may interview the candidate. Though under Rule 8 (2) the procedure of selection, if included written test and interview by a selection committee, the same has been relaxed but it is further provided that the appointing authority in order to ensure that the incumbent possess requisite minimum standard necessary for the work and efficiency, may interview the candidate. When the matter pertains to recruitment in a disciplined force like Police Force, which is directly connected with law and order matters arisen, the physical fitness of the persons concerned is of utmost importance and in absence of any relaxation in 1974 Rules, no relaxation in respect to such physical standard and test can be claimed. If the petitioners have failed to qualify in physical test once, they have no right to insist upon the respondent to allow the petitioners more than one opportunity for showing their ability about the physical standard/test. In absence of any such right conferred by the statute, I find no justification for directing the respondents to give petitioners another opportunity to appear in physical test. 13. Moreover, the candidates, who failed to qualify in physical test in 2005 and having approached this Court after more than four year, i.e., in 2009 by means of the present writ petition even otherwise I find no justification to allow them another opportunity as they are guilty of laches which has not been explained as to why and in what circumstances, they kept silence for almost four years and have filed the present writ petition after such a long delay. 14. Delay and laches constitute substantial reason for disentitling relief in equitable jurisdiction under Article 226 of the Constitution of India. In New Delhi Municipal Council v. Pan Singh and others, JT 2007(4) SC 253, the Apex Court observed that after a long time the writ petition should not have been entertained even if the petitioners are similarly situated and discretionary jurisdiction may not be exercised in favour of those who approach the Court after a long time. It was held that delay and laches are relevant factors for exercise of equitable jurisdiction. It was held that delay and laches are relevant factors for exercise of equitable jurisdiction. In M/s Lipton India Ltd. and others v. Union of India and others, JT 1994(6) SC 71 and M.R. Gupta v. Union of India and others, 1995(5) SCC 628 it was held that though there was no period of limitation provided for filing a petition under Article 226 of Constitution of India, ordinarily a writ petition should be filed within reasonable time. In K.V. Rajalakshmiah Setty v. State of Mysore, AIR 1961 SC 993 , it was said that representation would not be adequate explanation to take care of delay. Same view was reiterated in State of Orissa v. Pyari Mohan Samantaray and others, AIR 1976 SC 2617 and State of Orissa and others v. Arun Kumar Patnaik and others, 1976(3) SCC 579 and the said view has also been followed recently in Shiv Dass v. Union of India and others, AIR 2007 SC 1330 and New Delhi Municipal Council (supra). The aforesaid authorities of the Apex Court has also been followed by this Court in Chunvad Pandey v. State of U.P. and others, 2008(4) ESC 2423 . This has also been reiterated in Virender Chaudhary v. Bharat Petroleum Corporation and others, 2009(1) SCC 297 . In S.S. Balu and another v. State of Kerala and others, 2009(2) SCC 479 the Apex Court has held that it is well settled principle of law that delay defeats equity. It is now a trite law where the writ petitioner approach the High Court after a long delay, reliefs prayed for may be denied on account of delay and laches irrespective of the fact that similarly situated to other candidates have got the benefit. In Yunus v. State of Maharashtra and others, 2009(3) SCC 281 the Court referred to the observations of Sir Barnes Peacock in Lindsay Petroleum Company v. Prosper Armstrong Hurde etc., (1874) 5 PC 239 and held as under : “Now the doctrine of laches in Courts of Equity is not an arbitrary or technical doctrine. In Yunus v. State of Maharashtra and others, 2009(3) SCC 281 the Court referred to the observations of Sir Barnes Peacock in Lindsay Petroleum Company v. Prosper Armstrong Hurde etc., (1874) 5 PC 239 and held as under : “Now the doctrine of laches in Courts of Equity is not an arbitrary or technical doctrine. Where it would be practically unjust to give a remedy either because the party has, by his conduct done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material....... Two circumstances always important in such cases are, the length of the delay and the nature of the acts done during the interval which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy.” 15. So far as the judgement of this Court in Amit Shahi (supra) is concerned, it appears that the question as to whether the petitioners have a legal right to seek more than one opportunity to appear in physical test was not considered therein and in absence of any discussion on the question, the Court in the facts and circumstances of that case issued direction permitting some petitioners another opportunity but has not laid down a legal proposition that petitioners are entitled to seek a writ of mandamus directing the respondents to allow more than one opportunity to the candidates seeking compassionate appointment to participate in physical test. I, therefore, find no occasion, in absence of any law laid down by this Court on this question that such a mandamus can be issued in respect to these petitioners also. 16. Another decision sought to be relied by the respondents is a judgement dated 7.8.2008 passed in Writ Petitions No. 4746 of 2008 (Mukesh Shukla and others v. State of U.P. and others) and 63543 of 2008 (Amit Chaudhary v. State of U.P. and others) but a perusal thereof shows that the question of law considered therein was wholly different. 16. Another decision sought to be relied by the respondents is a judgement dated 7.8.2008 passed in Writ Petitions No. 4746 of 2008 (Mukesh Shukla and others v. State of U.P. and others) and 63543 of 2008 (Amit Chaudhary v. State of U.P. and others) but a perusal thereof shows that the question of law considered therein was wholly different. In that case, the claim for compassionate appointment was denied on the ground that a decision has been taken by the Selection Board vide resolution dated 20.9.2006 and 25.6.2007 that no person shall be appointed on compassionate basis on the post of Sub-Inspector/Platoon Commander. This Court found that in absence of any amendment in the rules and also in absence of any such power shown to be possessed by such Board, it was not open to the Selection Board to decide administratively that they would not consider compassionate appointment against certain posts, though posts are Class-III posts for which compassionate appointment under 1974 Rules can be considered. The judgment proceeded on the exposition of law that administrative authorities have no power to whittle down efficacy of statutory rules by executive orders and in such case, the administrative decision or orders contrary to the statutory rules shall be sub servient and of no consequence. The judgment has no application in the case in hand. 17. By means of supplementary affidavit, the petitioners have placed reliance on another judgment of this Court in Writ Petition No. 52357 of 2009 (Smt. Neelam Verma v. State of U.P. and others) wherein relying on Rule 16(b) of 2008 Rules this Court held that the lady candidate was not correctly tested for physical efficiency test inasmuch as Rule 16(b) talks of 5 kilometres in 45 minutes while the said petitioner was tested to complete 5 kilometres in 35 minutes. However, I find that Rule 16 of 2008 Rules is applicable for making promotion to the post of Sub-Inspector and not for direct recruitment. The petitioners in the case in hand are not claiming promotion but they are the candidates for compassionate appointment which is a mode of direct recruitment though not in accordance with the normal procedure but an exceptional procedure. The petitioners in the case in hand are not claiming promotion but they are the candidates for compassionate appointment which is a mode of direct recruitment though not in accordance with the normal procedure but an exceptional procedure. It was pointed out by learned Senior Counsel that in Smt. Neelam Verma (supra) the petitioner was also a candidate of compassionate appointment but it appears that this Court wrongly applied Rule 16(b) which was not applicable in the case of direct recruitment and, therefore, the aforesaid judgement in Smt. Neelam Verma (supra) is clearly a judgement per incurium and looses its binding force of precedent since a wrong provision has been referred therein. 18. Besides, it is pointed out by the learned Standing Counsel that Rules, 2008, as were published earlier, had some mistake and the same was rectified later on in April 2009 by making amendment in the said Rules and it appears that Rule 16-B, which was placed before this Court in Smt. Neelam Verma (supra) was a misprint in the book containing the said rule placed before this Court inasmuch in the original Gazette notification, the standard for physical test with respect to running is 10 K.Ms. in 16 minutes for male candidates and 5 K.Ms. in 35 minutes for female candidate and this was not brought to the notice of this Court by learned Standing Counsel at the time when the above writ petition of Smt. Neelam Verma (supra) was decided. That being so and having gone through the Gazette notification of the Rules, 2008 as amended in 2009, I find that there is no inconsistency between the standards laid down in the Rules as well as the notice issued to the petitioners asking them to participate in physical test pertaining to running. 19. Further, it appears to me that the petitioners are interested only to claim compassionate appointment against a post of a particular status and not to an employment to meet out the sudden crises which is not the objective. The purpose of giving compassionate appointment is to mitigate the penury which the family has suffered due to sudden demise of the sole bread earner. The purpose of giving compassionate appointment is to mitigate the penury which the family has suffered due to sudden demise of the sole bread earner. Here the petitioners are not only able to sustain themselves for years together but are also contesting litigation effectively and have not chosen to request the respondents to consider them for compassionate appointment against any other post though this option has been given by the respondents to the petitioners. 20. It is well settled law that appointment on compassionate basis is not with an objective to confer a status and reservation on a post against a post. Its object is not to provide a privilege to a person whose father was in Government service to claim employment of a particular status by succession. An attempt on the part of petitioners to claim compassionate appointment with a particular status is as if a reservation of post against post based on descent and succession. There is nothing on record to show that the petitioners are trying to get employment on compassionate ground to mitigate the state of penury in which the family is supposed to be suffering on account of sudden death of the sole bread earner. Where the successor of a deceased Government employee is otherwise in a satisfactory financial condition and is not suffering on account of penury, the scheme of compassionate appointment would not be attracted in such a case otherwise it would make the scheme of compassionate appointment arbitrary. [See Umesh Kumar Nagpal v. State of Haryana and others, 1994 (4) SCC 138 ; Haryana State Electricity Board and another v. Hakim Singh, JT 1997 (8) SC 332; Director of Education (Secondary) and another v. Pushpendra Kumar and others, 1998 (5) SCC 192 ; Sanjay Kumar v. State of Bihar and others, JT 2000 (10) SC 156; State of Manipur v. Mohd. Rajaodin, 2003 (7) SCC 511 ; National Institute of Technology and others v. Niraj Kumar Singh, (2007) 2 SCC 481 ; State Bank of India and others v. Jaspal Kaur, JT 2007 (3) SC 35; General Manager State Bank of India and others v. Anju Jain, 2008 (11) SCALE 347; and, Jitendra v. CAT, Allahabad and others, 2008(2) ESC 769 ]. 21. 21. Moreover, there is nothing on record to show that the petitioners are still suffering on account of any financial scarcity and the entire attempt on the part of petitioners appears to be a claim of status. 22. Considering in the light of the above exposition of law and the facts that the petitioners despite of having been given an option to apply for compassionate appointment against some other post have chosen not to do so, it is evident that they are not in penury and do not require appointment to mitigate financial hardship supposed to be faced by the family due to sudden demise of sole bread earner but their objective is to get either a post of a particular status or not claim any compassionate appointment. That being so, the intention and bona fide of the petitioners is not in conformity with the objective for which such appointment is to be allowed. I, therefore, find no reason to grant any indulgence in this matter by directing the respondents to give another opportunity to the petitioners to participate in physical test in which they have failed and this is another reason for this Court to non suit the petitioners. 23. Lastly, but not the least, the advanced age of these petitioners is also an obstruction. The age limit for direct recruitment to the post of Sub-Inspectors is from 21 to 25 years. Though all the petitioners have not mentioned their age in the writ petition but the affidavit has been sworn by petitioner No. 1 mentioning his age 33 years while the supplementary affidavit has been sworn by one Sri Arvind Kumar Pandey, petitioner No. 2, showing his age 35 years. Meaning thereby, most of the petitioners are between the age group of 30 to 35 years. In the Police Force the post of Sub-Inspector is of great importance inasmuch for the purpose of investigation of crime, maintenance of law and order etc. they are generally required to be posted in field and are supposed to be in perfect stage of physical fitness. Recruitment at earlier age on such post is a matter of policy and has been found to be of utmost importance. they are generally required to be posted in field and are supposed to be in perfect stage of physical fitness. Recruitment at earlier age on such post is a matter of policy and has been found to be of utmost importance. A Division Bench of this Court in the case of Subhash Chandra Sharma v. State of U.P. and others, (2000) 3 AWC 2367 observed as under : “The Primary duty of police personal is to maintain law and order, to ensure enforcement of laws and to catch the criminals and bring them before the Courts for their prosecution. The criminals use all kinds of weapons, means of fast transport and other modern gadgets to achieve their objective. A policeman had to perform very hard and strenuous duty round-the-clock. In order to be successful a policeman has to be well built and strong and must possess sound physique. He has not to perform his duties sitting in an office and working on a table, which requires less of physical exertion. The Police Commission constituted by the Government of India, which consisted of highly experienced persons and experts in the field recommended that the minimum and maximum age for constables should be between 18 to 20 years. With regard to the sub-inspectors of police, the commission was of the view that the minimum and maximum age-limit should be 20 and 23 years, respectively (paragraph 44 of chapter VI of the Report). The minimum and maximum age-limit in C.R.P.F., B.S.F. and other Central Government forces like C.I.S.F. etc. is 20 to 25 years for a post equivalent to that of a sub-inspectors of police. In army, the age of entry into the service is much less and many holding non-commissioned ranks are discharged from service even before they have attained the age of 40 years. Normally, the physical strength of a person is at its highest when he is in his twenties. All the good athletes achieve the best of their career when they are in their early twenties. The ability to learn and mould ones way of life so as to successfully perform the duty can be better achieved in that age group. Nobody can stop the process of ageing. It is a natural biological phenomenon. All the good athletes achieve the best of their career when they are in their early twenties. The ability to learn and mould ones way of life so as to successfully perform the duty can be better achieved in that age group. Nobody can stop the process of ageing. It is a natural biological phenomenon. It is stated in the counter-affidavit that the whole process of selection takes at least 2 years and sometimes more than that on account many unforeseen factors including litigation in Courts. The training will take another one year. If the upper age-limit, as contended by the appellant, is accepted to be 32 years the result would be that a person would be entering the service at the age of 35 to 36 years. It is certainly too late an age on which a person would join as a sub-inspector of police. By the time, he learns and gathers experience, his physical strength would be waning. It would be wholly detrimental to the police force and consequently, for the society in general to allow entry in service at such a late stage. The contention of the appellant would be equally applicable for the post of constable as well and the result would be that though the Police Commission recommended the maximum age-limit of 20 years, they would be joining the force after the have already attained the age of 34 or 35 years (32 years plus the time in making selection and undergoing the training etc.). In our considered opinion, such a situation would seriously damage the efficiency of the police force and would not achieve the result for which the force is constituted and would result in breakdown of law and order. We are, therefore, clearly of the opinion that the Court, while exercising jurisdiction under Article 226 of the Constitution, should decline to exercise the discretion in favour of the appellant.” 24. Besides, under Rule 8, there is no relaxation in the matter of maximum age provided for recruitment in service. Though under Rule 5 (1), the general rules pertaining to recruitment have been relaxed but Clause 1 and 2 makes it clear that educational qualification and other eligibility conditions necessary for Government service have not been dispensed with. Besides, under Rule 8, there is no relaxation in the matter of maximum age provided for recruitment in service. Though under Rule 5 (1), the general rules pertaining to recruitment have been relaxed but Clause 1 and 2 makes it clear that educational qualification and other eligibility conditions necessary for Government service have not been dispensed with. The rule pertaining to age is a rule of eligibility and, therefore, in absence of any relaxation thereto in 1974 Rules, this is another reason which, in my view, disentitle the petitioners from any relief in this writ petition. 25. In the result, the writ petition fails and dismissed. There shall be no order as to costs. ————