# State of U.P. & Ors v. Ashif Ali

- **Citation:** (2022) 5 ILRA 1008
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-04
- **Case number:** Special Appeal No. 362 of 2019
- **Bench:** Pritinker Diwaker, Ashutosh Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-ors-v-ashif-ali-48388
- **Pages:** 6

## Headnote

Law
-
Compassionate
Appointment - Physical Efficiency Test
- The fate of the appeal rests on the
question
as
to
whether
the
writ
petitioner/respondent was compelled
to take the physical efficiency test by
the appellants despite suffering from
fracture in his right leg as alleged by
him or the test was taken voluntarily
by
him
after
submitting
fitness
certificate
as
asserted
by
the
appellants. (Para 8)

The writ petitioner/respondent is stated to
have appeared in the physical efficiency
test on 08.05.2018 and participated in the
same, although he asserts that he was
forced to participate in the same. The
appellants on the other hand submit that
the petitioner took the test without protest
and failed. No intimation on 05.05.2018 as
alleged by the petitioner was ever received
by them. The petitioner vide letter dated
09.05.2018
(Annexure-6
to
the
writ
petition) is stated to have written to the
Principal Secretary Home, Govt. of U.P.
complaining about how he was forced to
take the test and requested for a fresh test
after he is fit. (Para 11)

Hon'ble
Court
opined
that
the
writ
petitioner/respondent was medically fit
i.e. did not have the fractured at the time
of taking the physical efficiency test on
08.05.2018 and having failed therein and
suffered a fracture subsequently has
cooked up the plea that the appellants
forced him to take the test with a fracture.
The plea found favour with the learned Single
Judge and the writ petition was allowed
primarily basing conclusions on the subsequent
report of the Medical Board constituted under
the orders of the learned Single Judge which
reported that a person with a fracture cannot
5 All. State of U.P. & Ors. Vs. Ashif Ali
1009
take 10 rounds of 400 meter field. However, the
screen shots of the physical efficiency test
showing
the
writ
petitioner/respondent
participating in the same and the results
declared thereof belie the version of the writ
petitioner/respondent. (Para 12, 13, 14)

Consequently, the learned Single Judge was not
justified in directing the appellants to conduct a
fresh physical efficiency test of the writ
petitioner
and
consider
his
claim
for
compassionate appointment afresh particularly
in view of the fact that the Rules and GOs
governing the issue do not permit any second
attempt to a candidate who has failed the
physical test in the first attempt. (Para 15)

Special appeal allowed. (E-4)

Present special appeal challenges the
judgment and order dated 30.08.2018,
passed by learned Single Judge in Civil
Misc. Writ Petition No.15360 of 2018.

## Text

1008 INDIAN LAW REPORTS ALLAHABAD SERIES
31.12.2012, it is the Corporation which
has
kept
the
petitioner
out
of
employment.

33. Once the impugned order goes, the
petitioner would be entitled to the benefit of
his post held with the Corporation until the
age
he
attained
superannuation,
and
thereafter, whatever consequential benefits
would follow. The petitioner would, in no
case, be entitled to any pecuniary benefit for
the period that he remained absent from duty
i.e. 04.05.2008 to 19.05.2012. For the period
from 19.05.2012 until attaining the age of
superannuation, the petitioner, for whatever
reason
not
having
worked
for
the
Corporation, would be entitled to 50% of his
emoluments and no more. The petitioner
would, nevertheless, be entitled to continuity
in service for the purpose of reckoning his
post retiral benefits.

34. In the result, the writ petition
succeeds and is allowed. The impugned
order dated 31.12.2012 is hereby quashed.
The petitioner shall be deemed to have been
in service of the Corporation until the date of
his
superannuation
and
entitled
to
consequential
benefits
as
indicated
hereinabove.

35. There shall be no order as costs.
----------
(2022)05ILR A1008
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.03.2022

BEFORE

THE HON'BLE PRITINKER DIWAKER, J.
THE HON'BLE ASHUTOSH SRIVASTAVA, J.

Special Appeal No. 362 of 2019

State of U.P. & Ors. ...Petitioners
Versus
Ashif Ali ...Respondent

Counsel for the Petitioners:
Sri Anand Kumar Ray, S.C.

Counsel for the Respondent:
Sri Om Prakash Singh

A.
Service
Law
-
Compassionate
Appointment - Physical Efficiency Test
- The fate of the appeal rests on the
question
as
to
whether
the
writ
petitioner/respondent was compelled
to take the physical efficiency test by
the appellants despite suffering from
fracture in his right leg as alleged by
him or the test was taken voluntarily
by
him
after
submitting
fitness
certificate
as
asserted
by
the
appellants. (Para 8)

The writ petitioner/respondent is stated to
have appeared in the physical efficiency
test on 08.05.2018 and participated in the
same, although he asserts that he was
forced to participate in the same. The
appellants on the other hand submit that
the petitioner took the test without protest
and failed. No intimation on 05.05.2018 as
alleged by the petitioner was ever received
by them. The petitioner vide letter dated
09.05.2018
(Annexure-6
to
the
writ
petition) is stated to have written to the
Principal Secretary Home, Govt. of U.P.
complaining about how he was forced to
take the test and requested for a fresh test
after he is fit. (Para 11)

Hon'ble
Court
opined
that
the
writ
petitioner/respondent was medically fit
i.e. did not have the fractured at the time
of taking the physical efficiency test on
08.05.2018 and having failed therein and
suffered a fracture subsequently has
cooked up the plea that the appellants
forced him to take the test with a fracture.
The plea found favour with the learned Single
Judge and the writ petition was allowed
primarily basing conclusions on the subsequent
report of the Medical Board constituted under
the orders of the learned Single Judge which
reported that a person with a fracture cannot
5 All. State of U.P. & Ors. Vs. Ashif Ali
1009
take 10 rounds of 400 meter field. However, the
screen shots of the physical efficiency test
showing
the
writ
petitioner/respondent
participating in the same and the results
declared thereof belie the version of the writ
petitioner/respondent. (Para 12, 13, 14)

Consequently, the learned Single Judge was not
justified in directing the appellants to conduct a
fresh physical efficiency test of the writ
petitioner
and
consider
his
claim
for
compassionate appointment afresh particularly
in view of the fact that the Rules and GOs
governing the issue do not permit any second
attempt to a candidate who has failed the
physical test in the first attempt. (Para 15)

Special appeal allowed. (E-4)

Present special appeal challenges the
judgment and order dated 30.08.2018,
passed by learned Single Judge in Civil
Misc. Writ Petition No.15360 of 2018.

(Delivered by Hon'ble Ashutosh
Srivastava, J.)

1. This Intra-Court Appeal has been
filed by the State-respondents assailing the
judgment and order of the learned Single
Judge dated 30.8.2018 passed in Writ-A No.
15360 of 2018 (Ashif Ali versus State of U.P.
and 2 others) whereby the writ petition has
been allowed with cost of Rs.10,000/-
directing the appellants / respondents to
conduct a fresh physical efficiency test of the
petitioner / respondent after six weeks.
Further direction has been issued to the
appellants / respondents to keep the original
records pertaining to the writ petitioner /
respondent in a sealed cover and transmit the
same to the Senior Superintendent of Police,
Mathura
for
its
safe
custody,
while
considering
the
petitioner's
claim
for
compassionate appointment afresh.

2. The appeal was filed with a delay
of 150 days. This Court vide order dated
5.3.2019 had condoned the delay and directed
the office to allot a regular number to the
appeal. Learned counsel for the appellant
points out that pursuant to the order dated
22.2.2017 passed in Writ-A No. 18981 of
2014, the writ petitioner / respondent was
called to participate in the physical efficiency
test on 7.5.2018 after he had furnished a
declaration of his fitness to take the physical
efficiency test and actually participated
therein, but failed. The factum of participation
in the test aforesaid was disputed by the writ
petitioner / respondent on the ground that he
had met with an accident on 4.5.2018 after
submitting the fitness certificate and was
compelled to participate in the physical
efficiency test with a fractured leg. Since, the
order dated 5.3.2019 recorded the fact that the
writ
petitioner
/
respondent
had
not
participated in the test, a modification of the
order dated 5.3.2019 was sought. The said
application was turned down by this Court
vide order dated 19.4.2019 holding that the
appeal itself be decided on merits and all
points available may be raised during the
hearing of the appeal.

3. The parties have exchanged
affidavits reiterating their respective stands.

4. Learned counsel representing
the writ petitioner / respondent opposing
the appeal has filed a counter affidavit
stating inter alia therein that the father of
the writ petitioner / respondent was a
permanent employee posted as Constable
who admittedly died in harness on
31.3.2005. The writ petitioner / respondent
applied for compassionate appointment for
the post of Sub-Inspector vide application
dated 16.2.2008. The writ petitioner /
respondent was permitted to appear in the
physical efficiency test for the post of S. I.
(under Dying in Harness) Recruitment2017, fixed for 7.5.2018. The petitioner /
1010 INDIAN LAW REPORTS ALLAHABAD SERIES
respondent was required to collect his
admit card from the office of SSP, Mathura
on 4.5.2018. The petitioner / respondent
after collecting the admit card met with an
accident on the same day i.e. 4.5.2018
resulting in fracture of his right leg and the
right leg was put in plaster. He was advised
to take complete rest for four weeks. It is
stated that the information of the accident
was intimated through registered post vide
application dated 5.5.2018 along with
medical certificate issued by the District
Hospital, Agra. The petitioner was also
advised to appear before the Board on
7.5.2018 i.e. the date fixed for the physical
test and his claim for postponing his
physical test in the next recruitment would
be considered. However, the Board did not
adhere to the request and the petitioner was
compelled to participate in the physical
efficiency test and was declared failed. The
petitioner / respondent thereafter moved an
application before the appellant no. 1 on
9.5.2018 requesting action against the
Board. However, no action was taken and
the result of the selection was declared on
23.5.2018 wherein the petitioner was
declared not selected. The petitioner moved
another application dated 31.5.2018 before
the appellant no. 3 which too was rejected
vide order dated 11.6.2018 holding that
there is no provision for appearing as
second chance in the physical efficiency
test as per Board Circular. The writ
petitioner,
however,
stated
that
the
appellants permitted second chance to some
of candidates under dying in harness
category who were absent in the physical
efficiency test, but the writ petitioner has
been denied the chance arbitrarily. It is also
contended that the learned Single Judge
vide order dated 9.8.2018 issued direction
for constituting a Medical Board to
examine the writ petitioner and submit its
opinion in a sealed cover as to whether the
petitioner had in fact suffered such a
fracture or not? As also whether it was
possible for such a person to run 10 rounds
after three days of fracture itself by the next
date and the Medical Board so constituted
in its report dated 27.8.2018 opined that a
person with a fractured cannot take 10
rounds of a 400 meter field.

5. Learned counsel for the
appellants has filed a supplementary
affidavit dated 1.4.2019 clearly denying the
stand taken by the writ petitioner /
respondent that he was compelled to
participate in the physical efficiency test
despite a fractured leg. It is the specific
case of the appellants that the writ
petitioner / respondent with Roll No.
1810159, Bib No. 1262 participated in the
physical fitness test on 8.5.2018 and
completed 10 rounds of 400 meters total in
39 minutes 13 seconds whereas he was
required to complete 12 rounds of 400
meters in 35 minutes and thus could not
qualify the test. The writ petitioner /
respondent never made a declaration that
he is not physically fit to take the test and
also made the signature after completion of
the test result whereof were declared before
the ADM, Medical Officer and Deputy
Superintendent of Police. The appellants
have also filed the screen shots of the race
to demonstrate the fact that the writ
petitioner / respondent actually participated
in the race / physical efficiency test without
any plaster on the leg.

6. The above statement of fact
pleaded
by
the
appellants
in
their
supplementary affidavit has been refuted by
the writ petitioner / respondent by filing
supplementary counter affidavit by stating
that he had sent an application to the
department
two
days
before
the
commencement of the physical efficiency
5 All. State of U.P. & Ors. Vs. Ashif Ali
1011
test on 5.5.2018 by registered post along
with medical certificate.

7. We have heard the learned
counsel for the parties and have perused the
records.

8. We are of the opinion that the
fate of the appeal rests on the question as to
whether the writ petitioner / respondent
was compelled to take the physical
efficiency test by the appellants despite
suffering from fracture in his right leg as
alleged by him or the test was taken
voluntarily by him after submitting fitness
certificate as asserted by the appellants.

9. A perusal of the record reveals
that the writ petitioner / respondent has
placed reliance upon a medical certificate
issued by the District Hospital, Agra
bearing OPD No. 136596 (entered by hand)
dated 4.5.2018. The certificate records
fracture of shaft (Rt) Tibia and the patient
is advised rest from 4.5.2018 to four weeks.
Another document filed along with the
medical certificate is a document described
as an "Out Patient Record" which bears the
date of 22.5.2018 and is signed by the Dr.
M.
Lal,
Senior
Consultant,
District
Hospital, Agra, Reg. No. 24722. This
document also bears the OPD No. 136596
(printed
same
as
in
the
Medical
Certificate). Yet another document filed as
Annexre-4 to the writ petition is a Slip
issued by the Radiologist, District Hospital,
Agra accompanying the X-ray report. This
document bears the date 4.5.2018 and OPD
No. 136596 written by hand.

10. Further the writ petitioner /
respondent is stated to have intimated the
fact that he met with an accident on
4.5.2018 and suffered a fracture in his right
leg vide registered letter dated 5.5.2018
requesting for being given a fresh date
instead of 7.5.2018 for physical efficiency
test. The writ petitioner / respondent has
also filed the postal receipt bearing No.
4375. The date mentioned is not very clear
but may be presumed to be 5.5.2018 as
stated by the writ petitioner / respondent.

11.

The
writ
petitioner
/
respondent is stated to have appeared in the
physical efficiency test on 8.5.2018 and
participated in the same, although he
asserts that he was forced to participate in
the same. The appellants on the other hand
submit that the petitioner took the test
without protest and failed. No intimation on
5.5.2018 as alleged by the petitioner was
ever received by them. The petitioner vide
letter dated 9.5.2018 (Annexre-6 to the writ
petition) is stated to have written to the
Principal Secretary Home, Govt. of U.P.
complaining about how he was forced to
take the test and requested for a fresh test
after he is fit. The said letter is stated to
have been sent on 9.5.2018. A receipt
issued from the postal department bearing
receipt No. 4376 dated 9.5.2018 has been
filed as Annexure-6 to the writ petition.

12. We have examined the above
mentioned documents in the light of the
respective stands of the parties. We find that
postal receipt bearing No. 4376 was issued on
9.5.2018. However, the letter dated 5.5.2018
is stated to have been dispatched on 5.5.2018
(as alleged by the writ petitioner) and receipt
whereof issued by the postal department
bears the No. 4375. It is rather surprising that
the postal department has not issued any
registered letters between 5.5.2018 and
9.5.2018. This fact is also apparent from the
registry number appearing on the receipt No.
4375 which is RU18837153 and the registry
number mentioned in the receipt No. 4376 in
respect of the letter dated 9.5.2018 is
1012 INDIAN LAW REPORTS ALLAHABAD SERIES
RU18837154. This fact coupled with the
screen shots brought on record by the
appellants does not inspire confidence about
the version of the writ petitioner / respondent.
We do not doubt that the writ petitioner did
not meet with an accident resulting in fracture
of his right leg, but the said fracture has
occurred subsequent to the date of physical
efficiency test held on 8.5.2018. The screen
shots do not disclose that the writ petitioner /
respondent was compelled to take the test
with a bandaged / plastered leg even though it
is the case of the writ petitioner as set out in
Para 3 (d) of the counter affidavit filed on
15.3.2019 in this appeal which is being
quoted herewith:
 "3 (d). That the respondent /
petitioner proceeded for getting admit card
from the office of S.S.P., Mathura on
4.5.2018 and while he was returning,
unfortunately he met an accident in District
Agra and received serious injuries and
immediately
consulted
the
doctor
of
District Hospital, Agra who has declared
fracture in his right leg and his leg was
plastered. The senior consultant has also
advised to take complete rest of four
weeks."

13. The same stand has been
taken in Para 8 of the writ petition which
is being quoted hereunder:
 "8.
That
the
petitioner
proceeded for getting Admit Card form
the office of S.S.P., Mathura on 4.5.2018
and while returning, unfortunately he met
an accident in District Agra and received
serious injuries of fracture in his right
leg and immediately consulted the Doctor
of District Hospital, Agra. His leg was in
plaster and the senior consultant has
advised to take complete rest of four
weeks. A photocopy Medical Certificate
issued
by
Medical
Officer,
District
Hospital, Agra dated 4.5.2018 along with
photograph of injured leg covered with
Kachha Plaster is being field herewith
and marked as Annexure No. 4 to this
writ petition."

14. Thus, in view of the above, we
are of the opinion that the writ petitioner /
respondent was medically fit i.e. did not
have the fractured at the time of taking
the physical efficiency test on 8.5.2018
and having failed therein and suffered a
fracture subsequently has cooked up the
plea that the appellants forced him to take
the test with a fracture. The plea found
favour with the learned Single Judge and
the writ petition was allowed primarily
basing conclusions on the subsequent
report of the Medical Board constituted
under the orders of the learned Single
Judge which reported that a person with a
fracture cannot take 10 rounds of 400
meter field. However, the screen shots of
the physical efficiency test showing the
writ petitioner / respondent participating
in the same and the results declared
thereof belie the version of the writ
petitioner / respondent.

15. Consequently, we find that the
learned Single Judge was not justified in
directing the appellants to conduct a fresh
physical efficiency test of the writ
petitioner and consider his claim for
compassionate
appointment
afresh
particularly in view of the fact that the
Rules and Government Orders governing
the issue do not permit any second
attempt to a candidate who has failed the
physical test in the first attempt. The
appeal is allowed. The judgment and
order dated 30.8.2018 passed by the
learned Single Judge allowing the writ
petition with cost is set aside. The writ
petition stands dismissed.
----------
5 All. Anil Kumar Singh Vs. IInd Addl. Distt. Judge Hardoi & Ors.
1013
(2022)05ILR A1013
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 25.04.2022

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ A No. 1000074 of 2012
Rent Control No. 74 of 2012 (Old Number)

Anil Kumar Singh ...Petitioner
Versus
IInd Addl. Distt. Judge Hardoi & Ors.
 ...Respondents

Counsel for the Petitioner:
Ganga Singh

Counsel for the Respondents:
C.S.C., Akhlaq Ali, Rajendra S. Kushwaha,
Sharad Pathak, Shyam Mohan

A. Land Law - Tenancy - Bona-fide
need - Refusal of application for
release - The Uttar Pradesh Urban
Buildings
(Regulation
of
Letting,
Rent and Eviction) Act, 1972 (U.P.
Act No. 13 of 1972 - Sections 3(g) &
21(1)(a).

Bona-fide need - The specific need that
the landlord set up has come to an end with
his life that the long course of these
proceedings have defeated by sheer lapse of
time. Even if a member of the landlord's
family, within the meaning of S.3(g) of the
Act were alive, the prayer for release could
have been considered because the landlord
had sought release for the purpose of his
residence and to set up his chamber. The
bona fide need for the purpose of the
landlord's residence would include the
interest of a person who was a member
of his family, particularly one who was
residing with the landlord, within the
meaning of S.3(g) of the Act. Here, the
landlord's wife was not staying with him and
upon his death, has not come forward to
seek substitution in his stead. (Para 22)
If the landlord's widow or a son had asked to
pursue release for the purpose of his/their
residence, being members of his family as
defined u/s 3(g) of the Act, they would be
entitled to maintain the release application. This
would be so because a member of the landlord's
family would be sharing the landlord's bona fide
need for residential purpose. Here, the heirs and
LRs who have come on record are the sons of
the landlord's brother and claim through a
testamentary disposition. Thus, if the heirs
and LRs of the landlord do have a case of
bona fide need of their own, it would be
generically different and unconnected to
the landlord's case, and in that case, they
would be free to pursue it by instituting
appropriate
proceedings
before
the
Prescribed Authority or other Court of
competent jurisdiction, as may be advised.
However, so far as the present writ petition is
concerned, no relief can be granted in favour of
the heirs and LRs of the landlord. (Para 23)

Writ petition dismissed. (E-4)

(Delivered by Hon'ble J.J. Munir, J.)

1. This writ petition is directed
against concurrent refusal of an application
for release under Section 21(1)(a) of The
Uttar Pradesh Urban Buildings (Regulation
of Letting, Rent and Eviction) Act, 1972
(U.P. Act No. 13 of 1972) (for short 'the
Act') by both the Courts below.

2. An application for release was
moved under Section 21(1)(a) of the Act by
Anil Kumar Singh, seeking release of
House No. 167, situate at Mohalla Sarai
Thok Purvi, Pargana Bangar, Tehsil and
District Hardoi that was in the tenancy
occupation of Brijendra Pal Singh. The
release application was registered on the
file of the Prescribed Authority/Civil Judge,
Hardoi as P.A. Case No. 11 of 1989. This
application was instituted way back in the
month
of August,
1989
before
the
Prescribed Authority by Anil Kumar Singh