State Of U.P.& Ors vs Pankaj Kumar Vishnoi on 25 July, 2013
9. Having gone through the decision cited at the Bar by learned Standing Counsel in State of U.P. & Ors. Vs. Pankaj Kumar Vishnoi (supra), I find that it has no application in the case in hand. Therein, physical test was conducted from 27.6.2005 to 29.6.2005 for the post of Sub-Inspector (Civil Police), wherein petitioner participated but returned unsuccessful. Challenging his non selection, he preferred Writ Petition No.63596 of 2006 with a prayer that he should be allowed compassionate appointment on the post of Sub-Inspector (Civil Police) but did not disclose in the writ petition that he was already subjected to physical test for appointment on the said post but failed. The writ petition was dismissed by learned Single Judge vide judgment dated 23.11.2006 on the ground that earlier writ petition with the same prayer was filed and was dismissed as withdrawn without any liberty to file another writ petition, therefore, second writ petition was not maintainable for the same relief and second prayer that he should be offered post of Sub-Inspector (Civil Police) without subjecting him to undergo physical efficiency test is misconceived. This judgment of learned Single Judge was assailed in intra Court appeal i.e. Special Appeal No.1602 of 2006 under Chapter VIII, Rule 5 of the Rules of the Court, which was allowed by Division Bench and judgment of learned Single Judge was set aside. The Division Bench observed that dismissal of earlier petition would not come in the way of second petition since with the passage of time, the petitioner may have become more fit or may be unfit. The Court, therefore, directed the State to test Pankaj Kumar Vishnoi again. It is this judgment of Division Bench, which was taken in appeal by State. The Apex Court has reversed Division Bench judgment observing that compassionate appointment is not a matter of right. If applicant does not conform to the physical efficiency required under the rules or as decided by appointing authority, such applicant cannot claim appointment on compassionate basis as a matter of right ignoring such efficiency or suitability test as prescribed. The Court further held that in the present case petitioner Pankaj Kumar Vishnoi was already subjected to test for appointment on the post of Sub-Inspector (Civil Police) but he did not qualify and in these circumstances, High Court was not justified to direct Department to give him another opportunity only on the ground that there has been efflux of time. The Court said: