JUDGMENT Honble Sudhir Agarwal, J.—All these four petitions involve common questions of law and facts and, therefore, as agreed by learned counsel for the parties they are being decided by this common judgment under the Rules of the Court at this stage. 2. In Writ Petition No. 56092 of 2009 four petitioners have come up to this Court under Article 226 of the Constitution of India seeking a writ of mandamus commanding the respondents to permit the petitioners to appear afresh in physical examination for compassionate appointment as Sub-Inspector (Civil Police) and to discard the result of the physical examination of petitioners held on 26/27.8.2009 and to declare the same of no legal consequences. 3. That facts in brief as borne out from the writ petition are that the father of the petitioners were permanent members of Police Force of the State of U.P. The fathers of petitioners No. 1, 2 and 4 were employed as Sub-Inspector (Civil Police) while the father of petitioner No. 3 was Head Constable. The petitioners fathers died in harness on 18.6.2004, 10.11.2006, 8.2.2005 and 16.6.2005 respectively. The petitioners possess the requisite qualification necessary for appointment to the post of Sub-Inspector, approached the respondents for giving them compassionate appointment as Sub-Inspector (Civil Police). Initially the respondents pursuant to resolution passed by the Special Recruitment Board constituted by the Director General of Police, decided not to make any appointment on the post of Sub-Inspector under the provisions of U.P. Recruitment of Dependants of Government Servant (Dying-in-Harness) Rules, 1974 (hereinafter referred to as the “1974 Rules”) but the said resolution having been struck down by this Court in Writ Petition No. 4746 of 2008, Mukesh Shukla and others v. State of U.P. and others connected with Writ Petition No. 63543 of 2008, Amit Chaudhary v. State of U.P. and others, decided on 7.8.2009, the respondents decided to consider the claim of petitioners for compassionate appointment and accordingly call letters were issued through special messenger. A call letter dated 17.8.2009 for appearing for physical test on 26.8.2009 was received by the petitioner No. 1 on 22.8.2009. Similar letter dated 16.8.2009/20.8.2009 was received by petitioner No. 2 on 22.8.2009. The petitioner No. 3 received call letters dated 12.8.2009 and 19.8.2009 on 22.8.2009 and petitioner No. 4 received call letter dated 18.8.2009 on 22.8.2009. 4. A call letter dated 17.8.2009 for appearing for physical test on 26.8.2009 was received by the petitioner No. 1 on 22.8.2009. Similar letter dated 16.8.2009/20.8.2009 was received by petitioner No. 2 on 22.8.2009. The petitioner No. 3 received call letters dated 12.8.2009 and 19.8.2009 on 22.8.2009 and petitioner No. 4 received call letter dated 18.8.2009 on 22.8.2009. 4. All these petitioners appear in physical examination on 26.8.2009 but could not complete the specified distance within prescribed time, i.e., 10 kms. In 60 minutes. It is said that the petitioners did not get sufficient time for preparation of the matter inasmuch as call letters were issued at quite a later stage, i.e., four days before the date of physical test and, therefore, the petitioners could not prepare themselves for the said test. The manner in which the respondents have conducted physical test is wholly arbitrary and the petitioners should be directed to be allowed physical test afresh otherwise the action of the respondents is wholly arbitrary and discriminatory. 5. In Writ Petition No. 40533 of 2009, two petitioners, Zahir Ahmad and Anoop Kumar Singh, who have also failed to satisfy physical efficiency test have approached this Court and relief sought therein is similar to that of Writ Petition No. 56092 of 2009. The only distinction in this case is that after application submitted by both the petitioners seeking compassionate appointment on the post of Sub-Inspector in Civil Police, when they were denied recruitment on the post of Sub-Inspector in view of the decision taken by the Special Recruitment Board constituted by the Director General of Police, the petitioner No. 1, Zahir Ahmad joined Mukesh Shukla and others in Writ Petition No. 4746 of 2008 (supra) which was allowed by this Court on 7.8.2009. It is said that the petitioner No. 2, Anoop Kumar Singh also filed a similar writ petition wherein also a similar direction was issued. It is thereafter only that these two petitioners were directed to participate in physical efficiency test vide call letter dated 14.06.2009. They participated on 27.06.2009 but having failed therein, they filed the present writ petition. 6. It is said that the petitioner No. 2, Anoop Kumar Singh also filed a similar writ petition wherein also a similar direction was issued. It is thereafter only that these two petitioners were directed to participate in physical efficiency test vide call letter dated 14.06.2009. They participated on 27.06.2009 but having failed therein, they filed the present writ petition. 6. In the counter affidavit filed in Writ Petition No. 40533 of 2009, the respondents have averred that the father of petitioner No. 1 was posted at Police Training College, Moradabad, died on 29.4.2008 due to illness, and thereafter the petitioner No. 1 submitted his application and affidavit dated 16.6.2009 for compassionate appointment. The age of the petitioner as per his affidavit was 28 years in 2009. Similarly the petitioner No. 2 submitted his application alongwith affidavit dated 25.6.2009 wherein his age was mentioned as 28 years. The post of Sub-Inspector is an important one and the efficiency on the said post is of prime importance. After receiving applications of these two petitioners in accordance with 2008 Rules as amended in 2009, call letters were issued to them but they failed to satisfy physical efficiency test hence cannot be appointed. It is also said that on 27/28.6.2009 50 candidates physical efficiency was tested wherein 47 actually participated and 29 were found successful. Since the petitioners have failed to satisfy physical efficiency test meant for Sub-Inspector, they have been given an option for compassionate appointment on some other suitable post to which they have not submitted any consent and as soon as the petitioners consent for any other post to which they are suitable and eligible is received, the matter would be proceeded accordingly. It is said that in absence of any provision in the Rules providing for more than one opportunity for selection including physical test, the request of petitioners for fresh opportunity for physical efficiency test cannot be accepted as it is not in accordance with Rules and, therefore, the writ petition is liable to be dismissed. 7. The Writ Petition No. 33429 of 2009 has been filed by three petitioners, Amit Chaudhary, Subhash Chand and Bal Kishore. Their father expired on 11.4.2004, 1.10.2005 and 10.8.2003 respectively. The fathers of petitioners No. 1 and 2 were Constable and father of petitioner No. 3 was Sub-Inspector. 7. The Writ Petition No. 33429 of 2009 has been filed by three petitioners, Amit Chaudhary, Subhash Chand and Bal Kishore. Their father expired on 11.4.2004, 1.10.2005 and 10.8.2003 respectively. The fathers of petitioners No. 1 and 2 were Constable and father of petitioner No. 3 was Sub-Inspector. All these petitioners vide communication dated 13.6.2009 and 14.6.2009 respectively were tested on 27/28.06.2009 but they failed to qualify hence the present writ petition seeking relief similar as that of Writ Petition No. 56092 of 2009. 8. Reeta Singh the sole petitioner has filed Writ Petition No. 40534 of 2009 after having failed in physical examination test held on 28.6.2009 for appointment to the post of Sub-Inspector under 1974 Rules. The facts averred in this writ petition are similar to the Writ Petition No. 56092 of 2009. 9. Sri Ashok Khare, learned Senior Advocate stated that prior to 2.12.2008 there was statutory provision providing specifically about the standards of physical test to be satisfied by the candidates seeking appointment to the post of Sub-Inspector. However, the State Government promulgated U.P. Sub-Inspector and Inspector (Civil Police) Service Rules, 2008 (hereinafter referred to as the “2008 Rules”) notified in the U.P. Gazette Extraordinary dated 2.12.2008 with a view to regulate selection, promotion, training, appointment, determination of seniority and confirmation etc. of Sub-Inspectors and Inspectors of Civil Police of U.P. Police Force. 10. In view of Rule 2 of 2008 Rules the post of Sub-Inspector is a Group C post. Rule 8 provides for academic qualification and Rule 13 talks of physical fitness and read as under: “8. Academic Qualification.—A candidate for direction recruitment to the post of Sub-Inspector must possess a Bachelors degree from an University established by law in India or a qualification recognised by the Government as equivalent thereto.” “13. Physical fitness.—No candidate shall be appointed to the post in the service unless he be in good mental and bodily health and free from any physical defect likely to interfere with the efficient performance of his duties. Before a candidate is finally approved for appointment, he shall be required to pass an examination by Medical Board. Note.—The Medical Board shall examine the deficiencies such as knock knee, bow-legs, flat foot, varicose veins, colour blindness, vision deficiencies etc.” 11. Before a candidate is finally approved for appointment, he shall be required to pass an examination by Medical Board. Note.—The Medical Board shall examine the deficiencies such as knock knee, bow-legs, flat foot, varicose veins, colour blindness, vision deficiencies etc.” 11. Rule 15 thereof provides for procedure for direct recruitment and clauses (c) and (e) refers to physical standard and efficiency test and reads as under : “15 Procedure for Direct Recruitment to the post Sub-Inspector.- . . . . (c) Physical Standard Test.—All eligible Candidates to appear in a qualifying standards for Physical Standard Test of a qualifying nature the procedure for which is given in Appendix-I (e) Physical Efficiency Test.—The candidates who are declared successful in the preliminary written test under clause (d) shall be required to appear in a Physical Efficiency Test of qualifying nature. This test shall be of the level of National Physical Efficiency Standard Star-I. The Board shall be empowered to change or upgrade the standards of the said test which shall, in no case, be lesser than the prescribed standards of Star-I. The procedure for conducting the Physical Efficiency Test shall be such as prescribed in Appendix-2.” 12. The Appendixes 1 and 2 as were initially promulgated with 2008 Rules for the purpose of the dispute in the present case are not relevant hence I can skip the same and need not to be referred hereat. 13. The above 2008 rules were amended by the U.P. Sub-Inspector and Inspector (Civil Police) Service (First Amendment) Rules, 2009 (hereinafter referred to as the “2009 Rules”) published on 02.04.2009. In Rule 15 clause (e) was substituted and the amended provision reads as under : “(e) Physical Efficiency Text- “......Physical Efficiency Text of qualifying nature. The male candidates shall be required to complete a run of 10 kilometres in 60 minutes and female candidates a run of 5 kilometres in 35 minutes.” The procedure for conducting the Physical Efficiency Test shall be as prescribed in Appendix-2.” 14. Sri Khare submitted that so far as the petitioners are concerned, their right to be considered for compassionate appointment vested in them on the date they applied for compassionate appointment after the death of the father in harness and, therefore, the subsequent Rules framed in 2008 or 2009 cannot be applied to test the petitioners physical efficiency for appointment to the post of Sub-Inspector in Civil Police. He further contended that in any case when the respondents intended to test the petitioners for physical test, it was incumbent upon them to give a reasonable time to the petitioners to prepare for physical test and having failed to do so, the petitioners cannot be disqualified for appointment to the post of Sub-Inspector on the ground of having failed in physical test. 15. However, in my view, none of the submissions are tenable in law and, therefore, no relief can be granted to the petitioners. 16. It cannot be disputed at this stage that for recruitment to the post of Sub-Inspector even under 1974 Rules the petitioners have to satisfy the requirement of physical standard and efficiency etc. Though Rule 8 of 1974 Rules provides for relaxation in the matter of age but I find that so far as the maintenance of minimum standard of work and efficiency etc. is concerned, the candidate has to satisfy the same. This aspect has already been dealt with by this Court in Writ Petition No. 18181 of 2005, Kamlesh Singh Rathor and others v. State of U.P. and others connected with Writ Petition No. 17399 of 2005, Siddharth Singh Baghel and others v. State of U.P. and others, decided on 14.3.2005. This issue has attained finality as the matter is fully covered by the said judgement and I am also in respectful agreement therewith. 17. Now coming the question as to whether the petitioners were liable to be tested according to the provisions as they stood before the enforcement of 2008 Rules or not, I find that with respect to the procedure of recruitment etc. the petitioners have no vested right so as to be tested according to the provisions as were applicable at the time when they made an application seeking compassionate appointment. The only right the petitioners possess was to be considered for compassionate appointment in accordance with Rules as applicable to the service. If at the time of actual consideration there is a change in the procedure or standards etc., in my view, it cannot be said that the petitioners had a vested right to be considered for selection as per the procedure and standard applicable prior to 2008 Rules. If at the time of actual consideration there is a change in the procedure or standards etc., in my view, it cannot be said that the petitioners had a vested right to be considered for selection as per the procedure and standard applicable prior to 2008 Rules. The law that the vacancies advertised should be filled in accordance with the procedure applicable on the date of advertisement and subsequent change, if any, in the Rules would not govern the advertised selection, has no application in the case in hand inasmuch as here there is no representations by the respondents that a particular procedure shall be followed for filling any particular vacancy. In the matter of compassionate appointment there is no advertisement and no representation by the respondents except that the candidate is given an opportunity to be considered for compassionate appointment and for that purpose the eligibility qualifications etc., as the case may be, applicable at the time of filling in the vacancy, in my view, would be applicable. 18. The various authorities which provides that the law as applicable on the date of the vacancy advertised or sought to be filled in, I find are those where either the vacancies were advertised for direct recruitment or were those cases where promotions were to be made. In the case of advertisement where the procedure is also notified, it may be said that the incumbents apply for direct recruitment in accordance with such advertised procedure and get some kind of right vested in the procedure as applicable on that date. Similarly in the matter of promotion also a candidate having right to be considered for promotion may claim that the procedure as applicable on the date of occurrence of vacancy when he was entitled for consideration should be followed and to that extent he may have a right to be considered in accordance with that procedure. But in case of compassionate appointment none of these contingencies are available. These provisions are in the nature of exception to the known procedure of recruitment. Here the candidate as such has no iota of right at all either in the particular standards as fixed or the procedure. His right for consideration in fact commences only when he moves an application. These provisions are in the nature of exception to the known procedure of recruitment. Here the candidate as such has no iota of right at all either in the particular standards as fixed or the procedure. His right for consideration in fact commences only when he moves an application. Rule 8(2) of 1974 Rules strengthen the view which I have taken since it also provides that the appointing authority may satisfy itself that the candidate will be able to maintain minimum standards of work and efficiency expected on the post. 19. Prior to 2008 Rules, the standard of physical efficiency test consisted of cricket ball throw, long jump, chinning up, running 200 meters race, shuttle race and skipping. These tests were provided by executive orders having statutory force referable to Section 2 of the Police Act, 1861. 2008 Rules, however, have been framed in exercise of power under sub-Section 2 of Section 46 read with Section 2 of Police Act, 1861 and it further provides that these Rules are being framed “in supersession of all existing rules issued in this behalf”. It is no doubt true that in view of Section 1(2) of 2008 Rules that the same are not retrospective in nature, but once they supersede all the existing provisions, it clearly means that after the enforcement of 2008 Rules, the provisions contained therein shall only be applicable as no other provision in fact is in existence on and after 2.12.2008. That the statutory orders issued under Section 2 of 1861 Act becomes non est and inoperative. 20. That being so, in my view, the respondents cannot be said to have erred in requiring the petitioners to satisfy the physical efficiency text as per the standard set out in Rule 15(e) of 2008 rules as amended in 2009. 21. So far as the second aspect that the petitioners were not given sufficient time is concerned, I find that for recruitment in disciplined force like police, the petitioners cannot be permitted to say that they were not fit at the time when they applied for compassionate appointment or suspended the exercise etc. in order to upkeep their physique and physical efficiency and for revival thereof they needed time. in order to upkeep their physique and physical efficiency and for revival thereof they needed time. The petitioners were expected to maintain physical standard and efficiency throughout and as and when called, to satisfy the same and having failed to do so and in the absence of any provision for fresh opportunity, in my view, no such mandamus can be issued. The only right possessed by the petitioners is the right to be considered and not right of appointment as such, even if, they do not fulfil the requisite criteria provided in the statute. 22. At this stage I may also refer to another judgement rendered by this Court in Writ Petition No. 52357 of 2009, Smt. Neelam Verma v. State of U.P. and others, decided on 28.10.2009 wherein relying on Rule 16(b) of 2008 Rules this Court held that 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. This has also been relief by learned counsel for the petitioner. 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. It was pointed out by learned Senior Counsel that in Smt. Neelam Verma (supra) also, the petitioner was a candidate for compassionate appointment. However, I find this Court wrongly applied Rule 16(b) which was not applicable in the case of direct recruitment, i.e., compassionate appointment and, therefore, the aforesaid judgement in Smt. Neelam Verma (supra) is clearly a judgement per incurium and looses its binding force as precedent since a wrong provision have been referred therein. 23. Lastly, but not the least is another aspect of the matter, i.e., the advanced age of these petitioners. The age limit for direct recruitment to the post of Sub-Inspectors is 21 to 25 years. 23. Lastly, but not the least is another aspect of the matter, i.e., the advanced age of these petitioners. The age limit for direct recruitment to the post of Sub-Inspectors is 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, Anurag Yadav in Writ Petition No. 56092 of 2009 showing his age as 31 years in October, 2009 in the affidavit. Similarly, in Writ Petition No. 40533 of 2009, Anoop Kumar, petitioner No. 2 has mentioned his age as 28 years in July, 2009 in the affidavit. In Writ Petition No. 40534 of 2009, the sole petitioner, Reeta Singh has mentioned her age as 30 years in the affidavit. Meaning thereby, most of the petitioners are above the age of 25 years prescribed for direct recruitment being the maximums age. 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 status of physical fitness. Recruitment at earlier age on such post, as a matter of policy, 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. 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. 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. 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 they 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. In view of the discussions made above the writ petitions have no force and are dismissed on merits. No costs. ————