VIVEK KUMAR SHARMA Vs. STATE OF U P

JUDGEMENT

(1.) The five appellants were appointed on compassionate basis in the police department of the State as Constables. They accepted their appointment as Constables. On 7 October 2014, they submitted a representation claiming that they should have been appointed as Sub Inspectors and sought to re-agitate the legality of the physical endurance test which they had failed. Hence, compassionate appointment was sought in a higher post of Sub Inspector. Eventually, a writ petition was filed in which the appellants sought the benefit of an order passed by a learned Single Judge on 11 April 2013 in Kamal Singh Vs State of U P, (Writ-A No 26386 of 2006). In that case, a mandamus was issued to the respondents to consider the application of the petitioner for appointment on compassionate grounds for the reason that adequate notice of the endurance test had not been furnished. The appellants also sought to rely on a decision of a Division Bench of this Court dated 10 December 2012 in Ajay Kumar Yadav Vs State of U P (Special Appeal (D) No 1068 of 2012). In that case also, it was found that adequate time was not granted to the appellant to prepare for the endurance test.

(2.) The learned Single Judge, noted that there is not even a single averment in the writ petition that the appellants did not have notice of the physical endurance test and, hence, dismissed the writ petition. Further, admittedly, the appellants accepted the post of Constables under compassionate appointment.

(3.) In State of Rajasthan Vs Umrao Singh, 1994 6 SCC 560 the Supreme Court has categorically held that once the right has consummated, any further or second consideration for a higher post on the ground of compassion would not arise.