Research › Search › Judgment

Allahabad High Court · body

2022 DIGILAW 1388 (ALL)

Vibha Yadav v. State of U. P.

2022-09-01

KARUNESH SINGH PAWAR

body2022
JUDGMENT : KARUNESH SINGH PAWAR, J. 1. Heard Mr. Siddharth Khare, learned Senior Advocate for the petitioner and learned Standing Counsel for the State. 2. By means of this writ petition, the petitioner has prayed for a direction to respondents to grant appointment on the post of Sub Inspector in Civil Police on the basis of select list published on 12.11.2021 against the post remaining vacant on account of non-joining of Atul Kumar son of Surendra Singh within a stipulated period of time, with a further direction to respondents to permit the petitioner to function as Sub Inspector in Civil Police and pay her regular monthly salary of the said post. 3. Learned counsel for the petitioner submits that the petitioner applied for the post of Sub Inspector of Civil Police in 2020 against 183 posts under Uttar Pradesh Sub-Inspector and Inspector (Civil Police) Service Rules, 2015 (in short 2015 Rules). Subsequently, it transpired that the candidates in excess of 183 posts have qualified the physical efficiency test and therefore, even though, they have qualified physical efficiency test, a written examination was notified as per the Government Order dated 18.9.2015, read with Rule 5(i) of 2015 Rules. 4. Admit cards were issued. The petitioner participated in the written examination. Result of the aforesaid examination was declared on 12.11.2021. 5. The select list was published in two parts. The first part of the list includes the names of 183 candidates selected for appointment. The second part of the select list comprises of 79 such candidates who have not been selected. It is submitted that in the non-selected candidates, name of the petitioner figures at Serial No. 1. In the remark column against her name, it is mentioned as not selected in Tie-breaker. 6. It is further submitted that a total of nine candidates, viz. Mahesh Mishra, Chakravarti Vishal Maurya, Vikash Kumar Dube, Vivek Kumar Bharti, Vivek Kumar Singh, Vibha Yadav (the petitioner), Sahiba Ali, Amod Kumar and Vipin Kumar secured same marks, i.e. 171.0692. Out of nine candidates, first three were selected against 183 posts in List-1. The name of the petitioner who has also secured the same marks in the tie breaker figures at Serial No. 1 in the left out candidates. Out of nine candidates, first three were selected against 183 posts in List-1. The name of the petitioner who has also secured the same marks in the tie breaker figures at Serial No. 1 in the left out candidates. It is submitted that tie breaker test was conducted in accordance with Note provided under Rule 15 (f) of Rules of 2015 which is extracted below: “NOTE: If two or more than two candidates obtain equal marks then their seniority shall be decided by the procedure laid in following order: (1) If two or more candidates obtain equal marks then such candidate will be given preference who possesses preferential qualification, if any (in the same order as stated in Rule 9). Candidate having more than one preferential qualification shall get the benefit of only one preferential qualification. (2) Even then if two or more candidates have equal marks then candidate older in age shall be given preference. (3) If despite the aforementioned more than one candidates are equal, then preference to such candidate shall be determined according to the order in English Alphabets of their names mentioned in High School Certificate.” 7. It is further submitted that one Atul Kumar son of Surendra Singh and whose name figures at Serial No. 67 in the first list has relinquished his claim by filing an affidavit to the extent that he is not desirous of joining of service and does not claim appointment. A communication in this regard has been sent by the Superintendent of Police, Karmic dated 31.3.2022 which is annexed as Annexure No. 5 to the petition. It is thus submitted that appointment on one post remains unfilled on account of refusal of Atul Kumar. 8. The written examination and the entire selection process has already been completed. The petitioner has also secured similar marks as other candidates selected at Serial Nos. 181, 182 and 183. In the so called waiting list (second list), the name of the petitioner finds place at Serial No. 1. It is further submitted that since it is a compassionate appointment against 5% of vacant posts to be filled by direct recruitment as against the vacancies arising in the previously sanctioned posts of Sub Inspector of Police, as provided in Rule 5(i) of 2015 Rules, carry forward rule for the vacant posts does not apply in this case. It is further submitted that since it is a compassionate appointment against 5% of vacant posts to be filled by direct recruitment as against the vacancies arising in the previously sanctioned posts of Sub Inspector of Police, as provided in Rule 5(i) of 2015 Rules, carry forward rule for the vacant posts does not apply in this case. Rule 5(i) of 2015 Rules is extracted below: “5. Recruitment to the various categories of post in the service shall be made from the following sources: (1) Sub Inspector: (i) Fifty percent by direct recruitment through the Board. NOTE: Dependents of personnel of police department deceased during service who apply for the post of Sub Inspector of police in the dependents 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 five per cent of the posts to be filled by direct recruitment as against the vacancies arising in the previously sanctioned posts of Sub Inspector of Police.” 9. Learned Standing Counsel has opposed the petition and has submitted that admittedly, the petitioner has not been selected in the first list and therefore, she has no claim to be appointed on compassionate ground. In support of his contention, learned counsel for the petitioner has relied on judgment dated 8.2.2021 passed by a Division Bench of this Court in Special Appeal Defective No. 452 of 2020 State of U.P. and Others vs. Vatsyayan Shukla and Another. Relevant part of the judgment is extracted below: “We have considered the rival submissions and find case in hand to be peculiar. It is in view of the fact that on the cut off marks of open category, there were 73 candidates out of which 21 were given appointments based on the age as none of them were having preferential qualification. If we strictly go as per rules 15 (4), there is no illegality in the action of the appellant, as the result was declared to the size of vacancy. The fact however remains that out of the total candidates offered appointment based on the list sent to the department, 81 open category candidates did not join the post. If we strictly go as per rules 15 (4), there is no illegality in the action of the appellant, as the result was declared to the size of vacancy. The fact however remains that out of the total candidates offered appointment based on the list sent to the department, 81 open category candidates did not join the post. In absence of waiting list, the candidates scored same marks could have been given appointment as for that list of candidates next in the merit was not required to be called. It is considered to be calling of name from wait list. There would be no purpose to keep post vacant in a case where there are number of candidates scored same marks. It is not a case where the department was not having the list of the candidates who can be offered appointment which otherwise remain in the shape of waiting list and to be called. In fact the list of candidates obtained same marks was lying with the State thus State was not required to indulge in the exercise to call for the name of the candidates below the cut off.” 10. The judgment provides that no purpose would be served to keep the post vacant in a case where there are number of candidates who scored same marks. 11. Learned Standing Counsel could not demonstrate as to what purpose would be served to keep a post vacant which is earmarked to be filled by way of compassionate appointment if there is a candidate available who has secured the same marks in the written examination as those three last candidates in the select list. 12. On due consideration to the argument advanced by learned counsel for the petitioner, perusal of the record as also judgment quoted above, I am of the view that the contention of the State that the petitioner has no claim on the vacant post to be appointed on compassionate ground is misconceived. The very purpose of providing facility for compassionate appointment is that the dependents of the deceased employee are provided an immediate relief as the main bread earner of their family is no more. The post which has to be filled up by way of compassionate appointment cannot be kept vacant if there is a deserving candidate. The very purpose of providing facility for compassionate appointment is that the dependents of the deceased employee are provided an immediate relief as the main bread earner of their family is no more. The post which has to be filled up by way of compassionate appointment cannot be kept vacant if there is a deserving candidate. In this case, the petitioner has secured the same marks as those of last three selected candidates in the list of 183 which has been prepared on the basis of merit, i.e. written examination etc. 13. In view of the above, the writ petition is disposed of with a direction to respondent No. 3 to consider the case of the petitioner for appointment on compassionate ground on the post of Sub-Inspector of Civil Police along with other five candidates who have secured the identical marks against one post lying vacant due to withdrawal of one selected candidate Atul Kumar, in accordance with law, within a period of three months from the date of production of a certified copy of this order. 14. Needless to say that while considering such claim of the petitioner, the competent authority shall take note of that the petitioner is placed at Serial No. 1 in the second list of 79 candidates and she is also older in age than five candidates who have secured equal marks as the petitioner, in the light of Note provided under Rule 15.