Vinay Kumar Giri Vs State of U.P. Thru. Prin. Secy. Home Deptt. Lko and 5 Others

Neutral Citation No. - 2025:AHC-LKO:27606

Court No. - 18

Case :- WRIT - A No. - 2880 of 2025

Petitioner :- Vinay Kumar Giri Respondent :- State Of U.P. Thru. Prin. Secy. Home Deptt. Lko And 5 Others Counsel for Petitioner :- Dinesh Pratap Singh,Ajeet Kumar Singh,Armaan Surendra Tiwari Counsel for Respondent :- C.S.C.

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Hon'ble Karunesh Singh Pawar,J.

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Heard learned counsel for the petitioner and learned standing counsel for the State-respondents.

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Submission of learned counsel for the petitioner is that the petitioner has applied for appointment on compassionate ground promptly on account of death of his father Late Ramakar Giri who was working as Head Constable and died on 25.09.2018 under the Uttar Pradesh Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974. The case of the petitioner was considered and date for physical efficiency test was fixed on 04.10.2024 however, the petitioner could not participate in the same because of his illness, the medical certificate has been filed by the petitioner along with the writ petition. After recovery from the illness, the petitioner is requested to fix a date for physical efficiency test then the opposite parties has not been given any head.

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He submits that vide letter dated 27.12.2024, the petitioner has been intimated that his candidature for appointment on the post of Head Constable has been cancelled, the letter is contained as Annexure No.1 to the writ petition. In support of his contention, he has relied on the judgment passed by this Court in Writ-A No.12105 of 2019 (Saurabh Singh vs. State of U.P. & 2 others) , Writ-A No.12749 of 2024 (Dinker Mishra vs. State of U.P. & 5 others) and Writ-A No.1553 of 2025 (Akhilesh Singh vs. State of U.P. and 3 others).

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Learned standing counsel has opposed the contention and has submitted that the petitioner was given two opportunities. He has further submitted that after recovery, one more opportunity was given to the petitioner i.e. on 01.03.2025 in which also he did not appear to which learned counsel for the petitioner submits that he was suffering from Typhoid however, learned standing counsel has denied.

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Learned counsel for the petitioner submits that owing to the fact the petitioner was suffering with Typhoid he could not appear in the second opportunity also. He prays that in the interest of justice, the petitioner may be given one more opportunity to appear in the physical efficiency test for appointment on the post of Head Constable in the department.

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Considering rival submissions, it is noticed that in similar circumstances, this Court had interfered where it has been found that due to genuine physical ailment person seeking appointment on compassionate ground could not appear in the physical test. This Court in Writ Petition No. 35983 (S/S) of 2019 - Kaushal Sharma Vs. State of U.P. and Others (alongwith one connected case), 2020 (38) LCD 1059 , has observed as under :-

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"This Court in Service Single No.15721 of 2016, Vineet Kumar Mishra Vs. State of U.P. and others, vide order dated 26.4.2017, has considered the medical ailment of that petitioner and perused the documents relating to the medical advice and found that the said petitioner was not capable to appear in the physical efficiency test, therefore, it has been directed to the respondents to fix a fresh date for physical examination for that petitioner afresh for compassionate appointment.

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Following the direction of this Court in Vineet Kumar Mishra (supra), this Court in Service Single No.7758 of 2019, Dharmendra Fugat Vs. U.P. Police Recruitment & Promotion Board and others, has issued the similar direction vide order dated 15.3.2019, which reads as under:-

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"The present Writ Petition has been filed seeking a direction to the opposite parties to conduct physical efficiency test afresh for the post of Sub-Inspector of Police under the U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 on account of the fact that the petitioner was suffering from illness on the date when the physical efficiency test was scheduled.

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Similar controversy had already been adjudicated by this Court by means of judgment and order dated 26.04.2017 passed in Writ Petition No.15721 (S/S) of 2016, which is reproduced hereinafter :

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"Heard learned counsel for the parties.

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No counter affidavit has been filed yet but the instructions have been received by the learned standing counsel. A copy of the said instructions has been placed before the Court, the same be

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placed on record. The instructions merely reiterates the reasons already given in the impugned order, therefore, there is no need to call for any counter affidavit.

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The instructions received by the learned standing counsel do not disclose any justifiable cause for not acceding to the request of the petitioner for fixing a date for physical test as on the date already fixed, the petitioner was not well and was suffering from Jaundice and had been advised three weeks rest which is evident from the documents at page no. 30-31 of the paper book, therefore, in these circumstances the contention that on the Website it had been specifically mentioned that no second chance would be given to the candidate is of no avail as if a person is suffering from Jaundice obviously he could not participate in physical races etc. and specially as the consideration being for compassionate appointment, a compassionate view ought to have been taken into the matter, as such, the impugned order containing the aforesaid reason is hereby quashed. The respondents shall fix a fresh date for a physical examination for the petitioner afresh for compassionate appointment. Let this be done within three weeks and thereafter within next three weeks the physical examination shall be held. Consequences shall fallow as per law.

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The writ petition is disposed of in the aforesaid terms."

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Since grievance of the petitioner in the present petition is similar to one which has already been adjudicated hereinabove, the benefit of the aforesaid order dated 26.4.2017 shall also be made available to the petitioner in the same terms.

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The Writ Petition is disposed of finally subject to the observations made herein above."

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The State Government has filed Special Appeal Defective No.346 of 2019 assailing the order dated 15.3.2019 and the said special appeal was dismissed by this Court vide order dated 26.8.2019, which reads as under:-

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"Heard Sri Q. H. Rizvi, learned Standing Counsel for the appellants and Sri Gyanendra Kumar Pandey, learned Counsel for the respondent.

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This Special Appeal has been filed against an order dated 15.3.2019 passed in Writ Petition No. 7758 (SS) of 2019, Dharmendra Fugat v. U. P. Police Recruitment & Promotion Board through Chairman & Others whereby the learned Writ Court relying on the decision of the order dated 26.4.2017

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passed in Writ Petition No. 15721 (SS) of 2016 disposed of the writ petition with a direction that the benefit of the aforesaid order dated 26.4.2017 shall also be available to the respondent.

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Brief facts of the present case are that in pursuance of the advertisement issued for recruitment in U. P. Police Department for the posts of Constables, Constables P.A.C. and Fireman, the respondent applied on 25..2013 and thereafter, he appeared in the preliminary written examination held on 15.12.2013. He was selected and a letter has been issued for scrutiny of records and medical examination. As he was not well and was suffering from high fever and was confined to bed from 25.8.2018 to 10.9.2018, therefore, he could not appear before the authority concerned.

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Learned Counsel for the appellants has submitted that in the case relied upon by the learned Single Judge, the petitioner applied for the post of Sub-Inspector under the U. P. Recruitment of Dependents of the government Servants Dyingin-Harness Rules, 1974 and in the aforesaid case, the petitioner was suffering from jaundice and has been advised to three weeks rest and therefore, he could not mark his presence before the authority concerned to participate in the physical test. Thus his submission is that the aforesaid judgment will not applicable to the present case.

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On due consideration of the aforesaid so also the order dated 26.4.2017 passed in Writ Petition No.15721 (SS) of 2016, we are of the view that the case of the present petitioner is squarely covered by the aforesaid judgment as the petitioner was unwell from 25.8.2018 to 10.9.2018 and therefore, the learned Writ Could has rightly disposed of the writ petition relying upon the aforesaid order. No case is made out to interfere with the aforesaid order passed by the learned Single Judge.

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The Special Appeal lacks merit and is accordingly dismissed.""

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This Court has noticed that in the case of Akhilesh Singh (supra) five opportunities were given to the petitioner to appear in the physical test on account of his illness thus, considering the peculiar facts of this case so also perusal of the judgment judgment and order of the coordinate Bench of this Court in the case of Kaushal Sharma (supra) , this Court finds that facts of the present case are similar to the facts of the case as narrated in the judgment of the coordinate Bench.

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Accordingly, the petitioner in the present case is also entitled to be granted relief as granted in the order dated 26.04.2017 in the case of Vineet Kumar Mishra (supra) and Dharmendra

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Fugat (supra).

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Accordingly, considering that on the last occasion i.e. on 01.03.2025, the petitioner was suffering from Typhoid due to which he could not appear, the respondents are directed to fix fresh date for conducting physical test of the petitioner for the purpose of granting him compassionate appointment. Let the aforesaid exercise be done in three weeks from the date of production of certified copy of this order and thereafter physical test shall be held. Consequences to follow.

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It is made clear that no further opportunity shall be given to the petitioner to participate in the physical test.

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With above directions the writ petition stands disposed of.

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Order Date :- 9.5.2025 Saurabh Yadav/-

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Digitally signed by :- SAURABH YADAV High Court of Judicature at Allahabad, Lucknow Bench

Vinay Kumar Giri v. State of U.P. Thru. Prin. Secy. Home Deptt. Lko and 5 Others

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Vinay Kumar Giri v. State of U.P. Thru. Prin. Secy. Home Deptt. Lko and 5 Others

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