Citation Codes

Equivalent Citations

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Case Number

Special Appeal No. 659 of 2010,Special Appeal Nos.- 474 of 2010, 475 of 2010, 476 of 2010, 477 of 2010, 478 of 2010 and 479 of 2010

Advocates

Mr. Om Prakash Singh.
Mr. Zafar Naiyyer, Additional Advocate General, & Mr. Ravi Shanker Prasad, Additional Chief Standing Counsel.

Judges

Hon’ble Mr. Justice Amitava Lala (ACJ)
Hon’ble Mr. Justice Ashok Srivastava

Acts

Rule 15(e)]Physical Efficiency
Rule 15(c) of the Rules, 2008,
Rule 15(b) of the Rules, 2008,
Rule 15(c),
Rule 15(b).

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Smart Summary

Concise Analytical Summary of the Opinion (Amitava Lala, J.)

Factual and Procedural Background

These special appeals were heard together because they involved a common question: whether the appellants (writ petitioners) should be granted an additional opportunity to clear the physical fitness (physical efficiency) test required for compassionate appointment as Sub-Inspector (Civil Police). Special Appeal No. 659 of 2010 was taken as the lead matter.

The appeals arose from judgments and orders dated 16 February 2010 of the learned Single Judge, which dismissed the writ petitions and declined to direct the respondent authorities to grant an additional opportunity for the physical fitness test. The recruitment framework invoked in the opinion includes the Uttar Pradesh Sub-Inspector and Inspector (Civil Police) Service Rules, 2008 ("Rules, 2008") read with the Uttar Pradesh Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 ("Rules, 1974").

Key factual points appearing in the opinion include that, for at least some appellants, call letters were issued on 20 August 2009 and the physical fitness tests were held on 26, 27 and 28 August 2009; the appellants had given affidavits/undertakings to the effect that no repeat physical fitness test would be provided; and the call letter format and timing in an earlier case (Udaiveer Singh) differed because it had been issued on 3 January 2004 before Rules, 2008 were in force.

Legal Issues Presented

Whether the appellants are entitled to a further/additional opportunity to clear the physical fitness (physical efficiency) test for compassionate appointment as Sub-Inspector (Civil Police).
Whether parity should be afforded with the Division Bench decision in Udaiveer Singh v. State of U.P (which allowed candidates a second physical test) in light of subsequent Rules, 2008 and related undertakings.
Whether the alleged shortfall in the timing of call letters (Rule 15(b) of Rules, 2008 requires call letters to reach at least a week before the examination) justifies granting equitable relief to the appellants.

Arguments of the Parties

Appellants' Arguments (as advanced by Mr. Om Prakash Singh)

The appellants sought parity with the Division Bench judgment in Udaiveer Singh v. State of U.P (order dated 17 March 2010) which had allowed candidates a second opportunity to attempt the physical fitness test.
Rule 15(b) (call letters) requires that call letters "should reach at least a week before the examination"; here call letters were sent on 20 August 2009 for tests starting 26 August 2009, which the appellants contended deprived them of adequate time.
The coming into force of Rules, 2008 should not preclude relief to the appellants; other Division Bench orders in 2010 had directed one more opportunity in some matters.

Respondent/State's Arguments (as advanced by Mr. Zafar Naiyyer assisted by Mr. Ravi Shanker Prasad)

Udaiveer Singh is distinguishable because the call letter there was issued on 3 January 2004 (pre-Rules, 2008); after enactment of Rules, 2008 the call letters expressly specified that no repeat physical fitness test would be given and undertakings were obtained from candidates in this batch.
Rule 15(c) (as amended) defines the "Physical Efficiency Test" and Appendix-2 prescribes the procedure and qualifying nature of the test; Rule 15(b) requires call letters to reach a week before, but this rule is for convenience and duplicate call letters can be issued if a candidate complains.
Citing Vipin Bihari Singh v. State of U.P (2010 (1) UPLBEC 26), once candidates participate in the selection process without demur, they are estopped from later complaining that the process did not conform to rules; they could have challenged the advertisement/selection process before participating.
Policy and disciplinary considerations: police service requires fitness and discipline; permitting routine relaxations would undermine the rules and affect society; solitary exceptional orders cannot become routine precedent.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Udaiveer Singh v. State of U.P, Special Appeal No. 353 of 2010 (order dated 17 March 2010; reported 2010 (2) UPLBEC 1125)	Permitted candidates a second physical fitness test in that case (concessionary/interim relief to avoid multiplicity).	The Court held Udaiveer Singh is factually distinguishable (call letter pre-dated Rules, 2008) and that its order was exceptional; therefore parity could not be automatically extended to the present appellants.
Pankaj Kumar Vishnoi v. State of U.P, Special Appeal No. 1602 of 2006 (Division Bench judgment dated 20 December 2006)	An earlier Division Bench judgment relied upon in Udaiveer Singh (it provided a ratio followed by some benches).	The Court noted that the Pankaj Kumar Vishnoi decision's operation was stayed by the Supreme Court on 16 November 2009, reducing the precedential effect available to appellants relying on it.
I.G. (Karmik) v. Prahlad Mani Tripathi, Supreme Court, reported 2007 (6) AWC 6075 (SC)	The principle that police service appointments generally do not admit of routine relaxation in fitness standards; importance of fitness/discipline in police appointments.	The Division Bench indicated that no relaxation would be shown for police service appointments relying upon this Supreme Court authority; this supported refusal to grant additional opportunities where rules and undertakings precluded them.
Vipin Bihari Singh v. State of U.P, 2010 (1) UPLBEC 26	Estoppel principle: candidates who participate without objection are estopped from later claiming non-compliance with rules; they could have challenged pre-participation.	The Court applied this principle to hold that once appellants participated (despite alleged irregularities), they cannot complain subsequently to obtain equitable relief.
State of U.P through Secretary Home (Police) v. Amit Shahi, Special Appeal Defective No. 330 of 2010 (order dated 10 May 2010)	An order directing another opportunity to qualify the physical test (interim in nature).	The Court treated such orders as interim and not binding for final adjudication; it observed that appellants sought interim reliefs to serve immediate purposes and that such interim orders do not control the final decision in these appeals.
Other Division Bench interim orders (Arun Kumar; Neeraj Pawar; State of U.P v. Arun Kumar; State of U.P Thru' Secretary Deptt. Of Home Police Sec. v. Bhola Shankar Upadhyay)	Instances where other benches ordered one more opportunity or similar interim reliefs in 2010.	The Court classified these as interim orders, emphasized their non-binding character as final precedent, and declined to treat them as automatic entitlement for the appellants.
Supreme Court interventions (stay of Pankaj Kumar Vishnoi on 16 Nov 2009; stay of contempt proceedings in Udaiveer Singh on 04 Aug 2010; matters clubbed in Supreme Court)	Procedural developments impacting the availability/effect of lower court decisions.	The Court noted these Supreme Court orders to explain limitations on relying upon Pankaj Kumar Vishnoi and to indicate that pronouncements in related matters were pending/held in abeyance at higher forum.

Court's Reasoning and Analysis

The Court's reasoning proceeded in a sequence of interrelated findings grounded on the text of Rules, 2008, the factual matrix of call letters and undertakings, and the character of previously issued judicial orders:

Distinguishing Udaiveer Singh: The Court observed that the call letter in Udaiveer Singh was issued on 3 January 2004 (when no rule like Rules, 2008 existed). By contrast, in the present matters the Rules, 2008 were in force and call letters expressly contained conditions that no repeat physical test would be provided, and candidates gave undertakings to that effect. This factual difference made Udaiveer Singh distinguishable.
Rules-based analysis: The Court quoted Rule 15(c) (as amended) defining the Physical Efficiency Test (10 km in 60 minutes for males; 5 km in 35 minutes for females) and reproduced Appendix-2, which prescribes the test procedure and emphasizes that the physical efficiency test is only of a qualifying nature and subject to specified safeguards (three-member team, display of minimum standards, same-day result, etc.). The Court treated these rules as governing the matter.
On Rule 15(b) (call letters): The Court acknowledged that Rule 15(b) states that call letters "should reach at least a week before the examination," but characterized this requirement as a convenience measure for candidates. It noted that Rule 15(b) itself provides for issuance of duplicate call letters where a candidate has not received the call letter in time. Therefore, mere irregularity in the timing of service (e.g., call letter a few days before) — particularly where the candidate nevertheless participated — was deemed to be at best irregular and not a basis for equitable relief that would contradict the rules and undertakings.
Estoppel and participation: Citing the Division Bench decision in Vipin Bihari Singh, the Court agreed with the State's submission that candidates who participate in the selection process without protesting are estopped from later challenging compliance with rules; if they had objections to advertisement/selection, they should have challenged them prior to participation.
Nature of earlier orders: The Court observed that various Division Bench orders in 2010 granting one more opportunity were interim in nature. The Court stressed that such interim orders do not bind it in the final adjudication of merits and that appellants appeared to seek such interim reliefs for immediate advantage rather than final entitlement.
Policy consideration for police recruitment: The Court emphasized that police service appointments uniquely demand fitness and discipline; routine relaxation of fitness norms (or treating exceptions as a norm) would undermine the rule framework and potentially affect society. For that reason, the Court rejected the notion of routine alleviation of the rules' requirements in police recruitment.
Effect of Supreme Court stays: The Court noted the Supreme Court had stayed operation of Pankaj Kumar Vishnoi (on 16 November 2009) and had stayed contempt proceedings arising from Udaiveer Singh (04 August 2010), and that related matters had been clubbed before the Supreme Court. These developments reduced the force of reliance on those Division Bench decisions.
Conclusion of analysis: Considering the express rules (Rule 15(b) and 15(c) and Appendix-2), the undertakings given by candidates, the estoppel doctrine as applied to participating candidates, the exceptional nature of prior orders, and public policy considerations for police service appointments, the Court concluded it could not grant the appellants an additional opportunity to re-take the physical fitness test.

Holding and Implications

Holding: The special appeals are DISMISSED. The Court refused to direct that the appellants be granted an additional opportunity to clear the physical efficiency/fitness test. The appeals were dismissed without imposing any costs. Interim orders, if any, were vacated.

Implications:

Direct effect on the parties: The appellants will not receive the additional opportunity they sought to qualify the physical fitness test; the Single Judge's dismissal of the writ petitions is affirmed (as reflected in this Division Bench ruling).
Interim orders cited by the appellants (other Division Bench orders granting second opportunities in specific matters) were treated as interim and not binding in the present final adjudication; the Court emphasized such orders do not compel similar relief here.
The Court stressed that solitary or exceptional judicial relaxations do not automatically create a binding precedent for future cases, particularly where rules and candidate undertakings expressly bar repeat tests and where public policy considerations (fitness/discipline in police recruitment) are implicated.
There is no indication in the opinion that the Court created a new broad precedent in favour of routinely granting additional opportunities; rather, the Court affirmed the primacy of the Rules, 2008, the undertakings obtained, and the estoppel principle where candidates participate without timely challenge.

This summary is confined to the content and conclusions expressly stated in the provided opinion and does not add information beyond the text of that opinion.

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Sanjeev Kumar Dwivedi & Others Petitioners/ v. State Of U.P And Others S

Amitava Lala, J.:— 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 judgement 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 judgements 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 can not 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 judgement dated 17 March, 2010 rendered in Special Appeal No. 353 of 2010 (Udaiveer Singh v. State of U.P), reported in 2010 (2) UPLBEC 1125, this Division Bench was pleased to allow the candidates for second physical fitness test. Such order was passed on 17 March, 2010. The judgement and order of Udaiveer Singh (supra) was passed following a Division Bench judgement of this Court dated 20 December, 2006 delivered in Special Appeal No. 1602 of 2006 (Pankaj Kumar Vishnoi v. State of U.P). In Udaiveer Singh (supra) 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 judgement in re: Pankaj Kumar Vishnoi (supra) has been stayed by the Supreme Court on 16 November, 2009. So far as Udaiveer Singh (supra) is concerned, a contempt proceeding was initiated by the concerned party which was stayed by the Supreme Court by an order dated 04 August, 2010. In any event, we have been further told that in the Supreme Court both the aforesaid matters are clubbed together for the purpose of analogous hearing. Therefore, pronouncement of this judgement 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 29 November, 2011.

4. When Mr. Singh sought parity of the case with the judgement and order of Udaiveer Singh (supra), Mr. Zafar Naiyyer, learned Additional Advocate General, ably assisted by Mr. Ravi Shanker Prasad, learned Additional Chief Standing Counsel for the State, has brought to our notice the distinguishing features between Udaiveer Singh (supra) and the present cases.

5. Mr. Naiyyer has brought our attention to page 94 of the Special Appeal No. 659 of 2010 to show that in the call letter of Udaiveer Singh (supra) no condition was imposed with regard to any repeated physical fitness test because when such call letter was issued on 03rd January, 2004, no rule was available in this field. Subsequently, the Rules, 2008 came into force and after that in each of the call letters it has been specified that in the physical fitness test if one becomes unsuccessful, he will not get any opportunity for such further test. Even undertakings to that extent were called upon and the appellants hereunder gave their undertakings by way of affidavits, copies of which have been produced by him in this Court when direction was given to make those copies part of the record. Therefore, the cases hereunder and Udaiveer Singh (supra) are factually distinguishable in nature.

6. It is further contended by Mr. Naiyyer that Rule 15(c) of the Rules, 2008, as amended on 02nd April, 2009, gives meaning of “physical efficiency test” as under:

“(c) Physical Efficiency Test.—“…Physical Efficiency Test of qualifying nature. The male candidates shall be required to complete a run of 10 kilometers in 60 minutes and the female candidates a run of 5 kilometers in 35 minutes.” The procedure for conducting the Physical Efficiency Test shall be such as prescribed in Appendix-2.”

7. Appendix-2 as mentioned in the aforesaid Rule is also quoted hereunder:

“APPENDIX-2

[See Rule 15(e)]

Physical Efficiency Test for direct recruitment

Physical Efficiency Test.—The Physical Efficiency Test is conducted by a three member team comprising following members:

1. Sub-Divisional Magistrate/Deputy Collector:

2. Doctor/Sports Officer/National Cadet Corps Officer;

3. Deputy Superintendent of Police.

(a) The number of candidates [not more than 100 (one Hundred) in one day] for each such team so decided as not to affect the quality and procedure of the test. This Examination/Test shall be completed in one week in the entire State. Due to the excess number of candidates the Police Service Recruitment and Promotion Board may take a decision and determine the required time.

(b) The minimum physical standards for qualification for each test to be displayed very prominently on Boards in the Stadium/Police Line where ever the test is conducted before conducting the examination.

(c) The Physical Efficiency Test is only of qualifying nature and it has no effect on the Merit list. The result of this qualifying test be displayed on the notice board and if possible the Board's website is updated daily.

(d) The members of the team who found to give the wrong report wilfully would be liable for criminal proceedings.

(e) The result of Physical Efficiency Test is made available to the candidates on the same day. The list of pass/fail candidates is displayed on the Notice Board and the Board's website is uploaded daily. Once the examination of 100 candidates is completed, the list of successful candidates will be declared under the joint signatures of Sub-Divisional Magistrate/Deputy Superintendent of Police/Assistant Superintendent of Police.

(f) The result of this qualifying test be announced on mike mentioning measurements of each candidates test wise immediately after the test is over, displayed on the notice board and if possible the Board's website is updated daily.

(g) Only standardized equipments having Indian Standard Institute certification to be used for Physical Efficiency Test Examination.

(h) On declaration of the list of successful candidates in the Physical Efficiency Test, they would be sent to the designated Community Health Center Tehsil/Headquarter and District Hospitals for medical examination.”

8. Mr. Singh has further contended that before physical efficiency/fitness test as per Rule 15(c), one has to apply Rule 15(b) of the Rules, 2008, as amended on the same date, which speaks about the issuance of call letters. Such call letters should reach at least a week before the examination as per Rule 15(b). Here, the call letters were issued on 20 August, 2009, whereas physical fitness tests were held on 26, 27 and 28 August, 2009. For the purpose of better understanding such Rule 15(b) of the Rules, 2008 is quoted hereunder:

“(b) Call Letters— The Board will ensure that the copy of certificates shall be examined and compared with original certificates at the time of Physical Standard Test. After getting the Application Form scanned through computer, computerised call letter will be issued to eligible candidates through the same Post Office/Bank from where Application Form was purchased/submitted. The Board may also use any other appropriate means of sending call letter after a through consideration. Code/name/postal address/place of the examination centre along with the date and time of the Physical Standard Test, Physical Efficiency Test and medical examination will be clearly mentioned in the call letter. Documents with which the candidates are required to reach for the examination will be clearly indicated in the call letter. Call letter should reach at least a week before the examination. In case call letter is not received till a week before beginning of the examination candidates any contact helpline, serial code of the Application Form will have to be given in this regard. Duplicate call letter will be issued by the Board.”

9. Mr. Naiyyer has contended before us that this Division Bench itself in the judgement reported in 2010 (1) UPLBEC 26 (Vipin Bihari Singh v. State of U.P) has held that once the candidates participated in the selection process without any demur, they are estopped from complaining that the selection process was not in accordance with the rules. If they thought that the advertisement and selection process were not in accordance with the rules, they could have challenged the advertisement and selection process without participating in the selection process.

10. According to Mr. Singh, coming of the Rules, 2008 will no way create any obstacle to the appellants. After promulgation of the Rules, 2008 and amendment thereof in 2009, in Special Appeal Defective No. 330 of 2010 [State of U.P through Secretary Home (Police) v. Amit Shahi] another Division Bench of this Court by its order dated 10 May, 2010 followed the ratio of Pankaj Kumar Vishnoi (supra) and directed to provide one more opportunity to the respondent therein for qualifying the physical test but the result of the same will not be declared without the leave of the Court. Several Division Benches of this Court have also passed similar orders, which are dated 24 May, 2010 in Special Appeal No. 294 of 2010 [Arun Kumar v. State of U.P through Secretary, Home (Police Section)], dated 10 May, 2010 in Special Appeal No. 616 of 2010 (Neeraj Pawar v. State of U.P), dated 01st September, 2010 in Special Appeal Defective No. 790 of 2010 (State of U.P v. Arun Kumar), dated 06 October, 2010 in Special Appeal Defective No. 908 of 2010 (State of U.P Thru' Secretary Deptt. Of Home Police Sec. v. Bhola Shankar Upadhyay).

11. According to us, all those orders are interim in nature and the appellants are interested only to get such type of interim orders to serve the purpose not the final disposal. Such interim orders have no binding effect upon this Court in pronouncing its final judgement.

12. According to us, Rule 15(b) of the Rules, 2008 definitely says that call letters would reach to the candidates at least a week before the examination. However, such rule is made for the purpose of convenience of the candidate. Therefore, if one feels inconvenience in attending the examination on the due date, he can definitely apply for duplicate call letter as per Rule itself. But once one has received the call letter and participated in the physical fitness test and that too either on the marginally before or after the expiry of the period, he can not turn around and say that period of one week as meant for reaching call letters as per Rule 15(b) of the Rules, 2008, has not been followed properly. It has not caused harm to the appellants but they have got the opportunity of participating in the physical fitness test. Against this background, service of call letters can, at best, be called irregular but not illegal to get any equitable justice. Moreover, we can not deviate from our own judgement regarding right of the participants after participation in a selection process based on the judgements of the Supreme Court as well as Division Benches of this Court.

13. So far as second limb of argument regarding parity of the case with Udaiveer Singh (supra) is concerned, we are of the view that there is a fallacy of argument on the part of the appellants. In Udaiveer Singh (supra) this Division Bench has not propounded a ratio to apply for all time to come. Such order was passed in an exceptional circumstance out of concession and to avoid the multiplicity of the proceedings between the ratio of such case and Pankaj Kumar Vishnoi (supra), which was passed earlier. But now we have come to know that the case of Pankaj Kumar Vishnoi (supra) has already been stayed by the Supreme Court. Without going into further discussion in this regard, we hold and say that in Udaiveer Singh (supra) the Court also indicated that no relaxation would be shown in respect of the candidates who are to be appointed in the police service, relying upon the judgement of the Supreme Court reported in 2007 (6) AWC 6075 (SC) [I.G (Karmik) v. Prahlad Mani Tripathi] when the learned Counsel appearing for the appellant therein specifically contended that they are not asking any relief with regard to appointment on compassionate ground but they only require an opportunity of physical test because they were not prepared for the physical fitness test in the earlier occasion due to shortage of time. But when the same is prohibited by the rules applicable prospectively and condition of the advertisement, whereby undertakings are also obtained from the candidates for only one physical fitness test, and if similar order is passed even thereafter, it will make the rules scrap. The prayer/s will have to be turned down when rules are specific in this regard and undertakings are given by the candidates and particularly when the service is a police service, where fitness and discipline are utmost requirements irrespective of their appointments either for physical work or for ministerial work attached to police department. Importance of fitness and discipline in the police force is the order of the day, as observed by the people in the common parlance. Therefore, if any relaxation is shown therein, such relaxation may affect the society at large and, as such, no routine order is to be passed on that score. Secondly, after introduction of rules for recruitment from the category of dying in harness, as one of the sources, it looses character of exception so far as physical fitness test is concerned. Solitary order of the Court, if any, passed in an extraordinary circumstance is an exception to rule, which can not create precedent for the future but the ratio of this judgement will prevail.

14. Having so, we are not in a position to pass any affirmative order in favour of the appellants. Hence, the special appeals are dismissed, however, without imposing any cost.

15. Interim order, if any, stands vacated.

16. Justice Ashok Srivastava

17. I agree.

Sanjeev Kumar Dwivedi & Others Petitioners/ v. State Of U.P And Others S

Concise Analytical Summary of the Opinion (Amitava Lala, J.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellants' Arguments (as advanced by Mr. Om Prakash Singh)

Respondent/State's Arguments (as advanced by Mr. Zafar Naiyyer assisted by Mr. Ravi Shanker Prasad)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Sanjeev Kumar Dwivedi & Others Petitioners/ v. State Of U.P And Others S

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