Court No. - 40
Case :- SPECIAL APPEAL DEFECTIVE No. - 808 of 2018 Appellant :- State Of U.P. And 3 Others Respondent :- Rajveer Singh Yadav Counsel for Appellant :- Akanksha Sharma Counsel for Respondent :- Siddharth Khare
Hon'ble Amreshwar Pratap Sahi,J. Hon'ble Ajit Kumar,J.
Civil Misc. Delay Condonation Application No.2 of 2018 Heard Smt. Akanksha Sharma learned standing counsel for the appellant/State and Sri Siddharth Khare learned counsel for the respondent-petitioner The delay has been sufficiently explained. We condone the delay and allow the delay condonation application. Appeal shall be treated to be within time and shall be given a regular number.
Order on Appeal The respondent-petitioner subject to notification dated 12.06.2010 claimed himself to be eligible and he accordingly applied for promotion under the 50% promotion quota as a Sub-Inspector. He appeared in the written examination and he was declared fail in one paper which carried a maximum of 100 marks. The respondent petitioner challenged the same in Writ Petition No.38563 of 2011 in which orders were passed on 17.02.2012. The re-evaluation was carried out but the State instead of obeying the directions of the Court filed Special Appeals and the respondent petitioner also filed a Special Appeal as he had not been extended the entire benefit claimed by him. The special Appeal was disposed off with the directions that have been extracted in paragraph 3 of the impugned judgement. The special appeal filed by the State was dismissed and Special Leave to Appeal filed by the State before the Apex Court was also dismissed. The State then filed a review application which was rejected and thereafter again a Special Leave Petition was filed by the State which was also dismissed.
In between, a subsequent fresh exercise was undertaken after the rules of physical efficiency test were amended in the year 2015 and the petitioner under the new rules appeared on 23.09.2016 whereafter he was promoted having cleared the aforesaid test.
The respondent-petitioner filed a writ petition giving rise to the present appeal praying that the order dated 10.01.2018 insofar as it relates to the petitioner be quashed whereby the respondent-petitioner had been called upon to appear in the physical efficiency test as per the standards which were then prevailing in the year 2011. The contention of the respondent-petitioner before this Court was that he should not be subjected to any physical test as he has already cleared the same in the subsequent physical test and that he should be given all benefits of promotion relating to the post of Sub Inspector as he should be treated to have cleared the examinations entitling him for promotion as a Sub Inspector in the previous selections. It may be clarified that the respondent petitioner had been declared successful in the written examination whereafter he had been called for the said physical efficiency test.
The State took a stand that since the respondent-petitioner has not cleared the physical efficiency test as per the departmental examination Rules which were prevailing in the year 2011, the respondent petitioner would not be entitled to any such benefit for promotion either notional or otherwise.
Learned single judge after having considered the submissions, came to the conclusion that the action of the appellant in declaring the respondent-petitioner as having failed in written examination was illegal. It was further observed by the learned Single judge that after a lapse of almost seven years, the physical strength of the respondent-petitioner must have diminished and therefore he cannot be now compelled to undergo the physical efficiency test standards as fixed in the year 2011 which was running of 10 km. in 75 minutes. The learned single judge has also considered the fact that there was no laches or error on the part of the respondent petitioner and any delay caused was on account of the process of litigation where the appellant-State was unsuccessful right up to the stage of the Hon'ble Supreme Court.
The question of now calling upon the respondent petitioner to get his physical efficiency tested as per norms of 2011 would be against equity and even otherwise, the rules now stand superseded with the 2015 Rules. The only relief that the learned Single Judge has extended is of notional promotion in the background aforesaid.
The argument for the State of the learned counsel is that the respondent-petitioner could not have been extended this benefit without having undergone the physical efficiency test once again as per the standard of the 2011 examination. It is here we find that an equitable adjustment has been made by the learned single judge by not allowing any further physical efficiency test to be undertaken by the respondent petitioner which we find not worth interfering with. Apart from this the respondent petitioner has already cleared the physical efficiency test as per 2015 rules. In such circumstances, the benefit extended to the respondent petitioner on notional basis for promoting him does not appear to be suffering from any manifest injustice and to the contrary, it is the respondent petitioner who was put to a loss on account of the litigative pursuit of the State which went on for six years. We are not therefore adjudicating upon the findings or the reasons given by the learned single judge in the background aforesaid and also hold that the ratio of the decision impugned may not be treated to be a precedent in future for any other case, but at the same time we clarify that the benefit of notional promotion to the respondent petitioner will be confined only to the extent as granted by the learned single judge which shall not include any pecuniary benefit.
Consequently, the appeal stands disposed off with the said observations.
Order Date :- 31.10.2018 saqlain