SANJEEV KUMAR DWIVEDI Vs. STATE OF U P

JUDGEMENT

(1.) All the aforesaid special appeals involve common question with regard to grant of an additional opportunity to the appellants-writ petitioners to clear the physical fitness test for the purpose of getting compassionate appointment as Sub-Inspector (Civil Police). Therefore, all the appeals have been heard together and are being decided by this common judgment having binding effect in all the special appeals, however, taking the Special Appeal No. 659 of 2010 as leading one.

(2.) These appeals are arising out of the judgments and orders dated 16th February, 2010 passed by the learned Single Judge dismissing the writ petitions of the appellants-writ petitioners, thereby declining from giving any direction to the respondent authorities to grant the writ petitioners an additional opportunity to clear the physical test. Uttar Pradesh Sub-Inspector and Inspector (Civil Police) Service Rules, 2008 (hereinafter called as the ''Rules, 2008') read with the Uttar Pradesh Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 (hereinafter called as the "Rules, 1974") gives a source of compassionate appointment. But availability of such source cannot give up characteristic of physical fitness test. It will be governed by the Rules, 2008.

(3.) Be that as it may, now we deal with the dispute involved herein. Mr. Om Prakash Singh, learned Counsel appearing for the appellants in these appeals, has contended before us that in the judgment in Udaiveer Singh and others v. State of U.P. and others, 2010 4 ADJ 846, this Division Bench was pleased to allow the candidates for second physical fitness test. Such order was passed on 17th March, 2010. The judgment and order of Udaiveer Singh was passed following a Division Bench judgment of this Court dated 20th December, 2006 delivered in Special Appeal No. 1602 of 2006 (Pankaj Kumar Vishnoi v. State of U.P. and others). In Udaiveer Singh this Court held that to avoid multiplicity of proceedings different stand should not be taken by the two Division Benches particularly when prayer is restricted only with regard to physical fitness test and not with regard to selection in service under the dying in harness category in consequence thereof. However, we have come to know that the operation of the original judgment in re: Pankaj Kumar Vishnoi has been stayed by the Supreme Court on 16th November, 2009. So far as Udaiveer-Singh is concerned, a contempt proceeding was initiated by the concerned party which was stayed by the Supreme Court by an order dated 4th August, 2010. In any event, we have been further told that in the Supreme Court both the aforesaid matters are clubbed together for the pur pose of analogous hearing. Therefore, pronouncement of this judgment was deferred. When considerable period is elapsed and no latest development has been made known to this Court, we placed the matter in the list on 29th-November, 2011.