# State of U.P. & Ors v. Geeta Rani

- **Citation:** (2024) 5 ILRA 691
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-15
- **Case number:** Special Appeal Defective No. 380 of 2024
- **Bench:** Mahesh Chandra Tripathi, Anish Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-ors-v-geeta-rani-51952
- **Pages:** 12

## Headnote

A. Service Law - UP Recruitment of
Dependents of Government Servants Dying
in Harness. Rules, 1974 - GO dated
18.09.2015 - Clause 2(5) - Compassionate
Appointment - Petitioner failed in physical
692 INDIAN LAW REPORTS ALLAHABAD SERIES
efficiency test for the post of SubInspector - Second chance for the test
sought for - Permissibility - Held, the
petitioner was not liable to be offered the
post of Sub Inspector. Moreover, once
having failed the physical efficiency test,
no second chance for qualifying the same
could have been offered to a candidate
claiming
compassionate
appointment.
(Para 27)

B. Jurisprudence - Constitution of India -
Article 141 - Rule of stare decisis defined -
Held,
Article
141
provides
that
the
decisions of the Supreme Court are binding
on all courts within the territory of India.
Although there is no express provision, but
by convention the decisions of a High Court
are binding on all lower courts within the
territorial jurisdiction of that High Court.
Similarly, a decision of a higher Bench, is
binding on the lower Bench. (Para 24)

C. Jurisprudence - Doctrine of Precedent -
Binding precedent, Persuasive precedent,
Original
precedent
and
Declaratory
precedent explained - Binding precedents
are
also
known
as
authoritative
precedents. These precedents are bound to
be followed by a lower court or other
equivalent courts once a judgment is made
whether
they
approve
it
or
not
-
Persuasive precedents include decisions
taken by an inferior court that a higher
court or any other court is not obliged to
follow. It depends on the court to decide
whether to consider it or not - An original
precedent are those judgements where the
court has never taken a decision in a case
and it has to use its own discretion to reach
to a conclusion - A declaratory precedent
is application of existing precedent in a
particular case. A declaratory precedent
involves declaring an existing law and
putting into practice, hence it does not help
in creating new law. (Para 25)

Special Appeal disposed of. (E-1)

List of Cases cited:

## Text

5 All. State of U.P. & Ors. Vs. Geeta Rani
691
jurisdiction, just because he has no power
to decide as to who is the 'heir' of the
deceased or just because the matter of
inheritance is fiercely fought in a civil
court. The purpose of the proceeding
under section 145 Cr.P.C. is significantly
different from the proceedings which
may be pending between the parties in a
civil court or a revenue court. Definitely,
the S.D.M. is not empowered to decide the
question of inheritance however, he can
always implead a legal representative to
continue the proceedings with a larger
interest of the parties and the society in
mind.

12. It is very interesting to note that
probably the dispute, which may cause
breach of peace continued but the S.D.M.
dropped the proceeding. Another thing
which has escaped attention at almost all the
stages of litigation is that the property was
handed over to a Supurdgar and admittedly
he died before the very first round of
litigation under section 145 Cr.P.C., came to
be finally concluded. In my opinion, it was
duty of the S.D.M. to appoint any other
person in place of deceased supurdgar but
that step was never taken, instead, the heirs
of supurdgar kept taking care of the property
and this is too glaring and gross negligence
on the part of the S.D.M. concerned. The
rights and duties of supurdgar cannot
devolve upon the heirs of a supurdgar.

13. In view of the above facts and
circumstances, I find that this matter needs
indulgence of this Court in exercise of
powers under article 226 of Constitution of
India. Hence, the impugned orders dated
03.01.2006 and 06.03.2006 are hereby set
aside and the court concerned is directed to
open the proceeding under section 145
Cr.P.C., and direct for substitution of legal
representative. Further he/she shall decide
the
question
of
desirability
of
its
continuance, in the light of the purpose of
the initiation of the proceedings under
section 145 Cr.P.C. which is to prevent
breach of peace. And in case the court is of
opinion that there is no need to continue the
same as no longer apprehension of breach of
peace existed, it shall decide the matter of
delivery of possession in accordance with
law.

14. The impugned orders dated
03.01.2006 and 06.03.2006 are hereby set
aside. The matter is remanded to the court
concerned for decision afresh in the light of
observations made in the body of this order.

15. Accordingly, this petition is
disposed of.
----------
(2024) 5 ILRA 691
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.05.2024

BEFORE

THE HON'BLE MAHESH CHANDRA
TRIPATHI, J.
THE HON'BLE ANISH KUMAR GUPTA, J.

Special Appeal Defective No. 380 of 2024

State of U.P. & Ors. ...Appellants
Versus
Geeta Rani ...Respondent

Counsel for the Appellants:
C.S.C., Kunal Ravi Singh, S.C.

Counsel for the Respondent:
Atipriya Gautam, Devesh Mishra

A. Service Law - UP Recruitment of
Dependents of Government Servants Dying
in Harness. Rules, 1974 - GO dated
18.09.2015 - Clause 2(5) - Compassionate
Appointment - Petitioner failed in physical
692 INDIAN LAW REPORTS ALLAHABAD SERIES
efficiency test for the post of SubInspector - Second chance for the test
sought for - Permissibility - Held, the
petitioner was not liable to be offered the
post of Sub Inspector. Moreover, once
having failed the physical efficiency test,
no second chance for qualifying the same
could have been offered to a candidate
claiming
compassionate
appointment.
(Para 27)

B. Jurisprudence - Constitution of India -
Article 141 - Rule of stare decisis defined -
Held,
Article
141
provides
that
the
decisions of the Supreme Court are binding
on all courts within the territory of India.
Although there is no express provision, but
by convention the decisions of a High Court
are binding on all lower courts within the
territorial jurisdiction of that High Court.
Similarly, a decision of a higher Bench, is
binding on the lower Bench. (Para 24)

C. Jurisprudence - Doctrine of Precedent -
Binding precedent, Persuasive precedent,
Original
precedent
and
Declaratory
precedent explained - Binding precedents
are
also
known
as
authoritative
precedents. These precedents are bound to
be followed by a lower court or other
equivalent courts once a judgment is made
whether
they
approve
it
or
not
-
Persuasive precedents include decisions
taken by an inferior court that a higher
court or any other court is not obliged to
follow. It depends on the court to decide
whether to consider it or not - An original
precedent are those judgements where the
court has never taken a decision in a case
and it has to use its own discretion to reach
to a conclusion - A declaratory precedent
is application of existing precedent in a
particular case. A declaratory precedent
involves declaring an existing law and
putting into practice, hence it does not help
in creating new law. (Para 25)

Special Appeal disposed of. (E-1)

List of Cases cited:

1. The St. of Uttar Pradesh & ors. Vs Premlata;
AIR 2021 SC 4984
2. Suneel Kumar Vs St. of U.P. & ors.; AIR 2022
SC 5416

3. Special Appeal No. 363 of 2019; St. of U.P. &
ors. Vs Ashif Ali decided on 04.03.2022

4. Service Single No. 14796 of 2020; Dharmendra
Singh Vs St. of U.P. & ors. decided on 22.10.2020

5. Special Appeal Defective No. 84 of 2021; St. of
U.P. & ors. Vs Dharmendra Singh decided on
11.02.2021

6. Special Leave to Appeal (C) No(s). 7554 of
2021; St. of U.P. & ors. Vs Dharmendra Singh

7. Writ A No. 19265 of 2023; Anil Kumar & ors.
Vs St. of U.P. & ors. decided on 21.11.2023

(Delivered by Hon'ble Mahesh Chandra
Tripathi, J.
&
Hon'ble Anish Kumar Gupta, J.)

(In
Re:-
Civil
Misc.
Delay
Condonation Application)

1. Heard learned counsel for the
parties.

2. Cause shown in the affidavit filed in
support of the instant application is to the
satisfaction of the Court.

3. Accordingly, the delay in filing the
instant appeal stands condoned and delay
condonation application is allowed.

(Order on Memo of Appeal)

4. The instant intra-court Special
Appeal under Chapter VIII Rule 5 of the
Allahabad
High
Court
Rules,
1952
(hereinafter referred to as the "Rules, 1952")
is being preferred by the appellantrespondent challenging the legality and
validity of the judgment and order dated
5 All. State of U.P. & Ors. Vs. Geeta Rani
693
21.12.2023 passed by the writ Court in
WRIT - A No. - 21105 of 2023 (Geeta Rani
Vs. The State of U.P. and 5 Others),
wherein, learned Single Judge while
accepting the ratio has essentially premised
its judgment on the basis of the mandate
given by a Coordinate Bench of this Court
vide
its
judgment
and
order
dated
22.10.2020 passed in SERVICE SINGLE
No.- 14796 of 2020 (Dharmendra Singh
Vs. State of U.P. Thru. Prin. Secy. Home,
Lko. & Ors.) and accorded a last opportunity
to the respondent-petitioner to clear the
physical efficiency test within a period of 30
days and even if she fails, suitable
appointment on compassionate basis shall
be accorded to her.

5. Before hearing the rival submissions
of the parties, it would be in the fitness of
things to reproduce the order dated
21.12.2023 passed by learned Single Judge:-

"Petitioner
applied
for
compassionate appointment on account of
her husband late Man Singh dying in
harness while working as Head Constable
with Civil Police on 02.02.2021 however,
while his application was entertained for the
post of Sub-Inspector and was directed for
the physical efficiency test, he could
complete running in excess of 3 seconds to
the scheduled time which was prescribed as
16 minutes for 2.4 kms.

Learned counsel for the petitioner
submits that in respect of 3 seconds of delay
there should be taken a sympathetic
consideration because in many of service
rules that provide for compassionate
appointment relaxations are offered. He
submits that in matters of compassionate
appointment, the authorities ought to have
taken pragmatic view as these rules are
exception to the general rules of recruitment
to show compassion towards the bereaved
family as sole earning member has met
premature death leaving liability behind.
However, he submits that given an
opportunity, may be as a last one, she would
be again participating in the physical
efficiency test and if this time she fails, she
will not be setting up any further claim for
the post and then can be offered any suitable
appointment on compassionate basis.

Learned counsel for the petitioner
has also relied upon an order of a
coordinate Bench of this Court at Lucknow
Bench in Service Single No.- 14796 of 2020
decided on 22nd October, 2020.

Learned
Standing
Counsel
submits that the police force requires
certain level of physical efficiency and any
compromise to the same would not be in the
interest in the police force which is involved
in policing like civil administration as and
when requires qua security of the people.
However, he does not dispute that one
direction has been issued in a case but
submits, that cannot be taken as a binding
precedent. He though submits that second
opportunity as such could be offered in the
discretion of this Court only as he does not
dispute that the rules of compassionate
appointment are exceptional to the general
rules, however, reiterates the principle that
there is no vested right to get a post of choice
by way of compassionate appointment.

Having heard learned counsel for
the respective parties and their arguments
raised across the bar, considering the fact
that the petitioner has been seeking a
compassionate appointment and for which
he was directed for physical efficiency test
and has just exceeded three seconds to the
scheduled time prescribed for running of a
candidate as per the rules, the Court takes
pragmatic view and directs that one last
opportunity may be given to the petitioner to
participate in the physical efficiency test.
694 INDIAN LAW REPORTS ALLAHABAD SERIES

It is, however, made clear that this
will be a last opportunity and no further
opportunity will be offered to the petitioner
and in the event petitioner fails, she may be
offered
suitable
appointment
on
compassionate basis.

The above exercise of physical
efficiency test will be done within a period
of 30 days from the the date of production of
certified copy of this order.

With the aforesaid observations
and directions, this petition stands disposed
of."

FACTS

6. From the perusal of the record, it
transpires that husband of the petitioner
namely, Man Singh died in harness while
working as Head Constable in Civil Police
on 02.02.2021. Thereafter, on account of
unfortunate demise of her husband, the
petitioner
applied
for
compassionate
appointment and her application was
entertained by the police department for the
post of Sub-Inspector and she was asked to
undergo the physical efficiency test.
However, the petitioner could not complete
the running within the stipulated time as
fixed
by
the
Police
department.
Consequently, she has approached to this
Court to consider her claim qua the
compassionate appointment under the
Uttar Pradesh Recruitment of Dependents
of
Government
Servants
Dying
in
Harness. Rules, 1974 (hereinafter referred
to as the "the Rules, 1974") for the post of
Sub-Inspector as per her qualification by
filing Writ A No.2105 of 2023, wherein,
the
learned
Single
Judge
taking
sympathetic
view
accorded
a
last
opportunity to the respondent-petitioner to
clear the physical efficiency test and
entitled her for a suitable appointment on
compassionate basis in case she fails to
qualify in the physical efficiency test.

ARGUMENTS ON BEHALF OF
APPELLANT-STATE

7. Mr. Fuzail Ahmad Ansari, learned
Standing Counsel for the appellant-State
vehemently submitted that the order
passed by the learned Single Judge cannot
sustain on the ground that claim of the
respondent-petitioner
was
to
be
considered under the Rules, 1974 and as
per the procedure prescribed in the
disciplined
force,
the
respondentpetitioner must undergo Physical Efficiency
Test, Medical Test etc. In continuance to the
same, he submitted that the respondentpetitioner could not be appointed as SubInspector under the Rules, 1974 as she could
not fulfill the minimum eligibility criteria,
which is prescribed as such, for the Physical
Efficiency Test. He submitted that there is
no provision under the Rules, 1974 and the
Government Order for according further
opportunity or chance for completion of
physical efficiency test. It has been argued
that the respondent-petitioner has appeared
in the physical examination out of her own
freewill and without any objection and qua
the same he has also placed reliance upon
the declaration form dated 31.12.2022 filled
up by the respondent-petitioner for the
physical test. The relevant conditions
contained in the aforesaid declaration form
is reproduced hereinunder:-

" परीक्षा नतधथ व समय एव परीक्षा
केन्र में पररवतगन सम्बन्िी कोई अनुरोि स्वीकार
नहीां ककया जायेर्ा।

दक्षता परीक्षा में ववटहत पत्रक प्राप्त न
कर सकने के कारण असफल हो जाने वाले
अभ्यथी को दूसरा मौका नहीां टदया जायेर्ा और
5 All. State of U.P. & Ors. Vs. Geeta Rani
695
स्वास्थ्य के कारण या ककसी .................. परीक्षा
के ललए अपील स्वीकार नहीां की जायेर्ी, समय
एवां टदनाांक. ................... में सम्म्प्मभलत होने में
असफल हो जाने वाले अभ्यथी को दूसरा मौका
नहीं ददया जायेगा और स्वास््य के कारण या
ककसी अन्य आिार पर ...................... अपील
स्वीकार नहीं की जायेगी।

अपररहायग कारों (वषाग अथवा तकनीकी
कटठनाई) से उस नतधथ की परीक्षा पूणगतः अथवा
बाधित होने की दशा में बोर्ग द्वारा ककसी अन्य
नतधथ पर परीक्षा आयोजजत नहीां की जायेर्ी।

द्वारा यथासम्भव उपयुक्त धचककत्सक
ववशेषकर हृदय रोर् ववशेषज्ञा से अपने हृदय तथा
रक्तचाप की जाांच कराकर धचककत्सक की राय के
अनुसार अपने स्वास्थ्य का ...................... व
परीक्षा में अथवा पूणग जजम्मेदारी पर ही भार् लें।
यटद ककसी अभ्यथी की शारीररक दक्षता परीक्षा
के दौरान स्वास्थ्य सम्बन्िी आकजस्मक समस्या
आती है ................. नहीां होर्ी।

घोषणा

मैं (अभ्यथी का नाम) र्ीता रानी
पुत्र/पुत्री मानलसक सेवायोजन प्रस्तावक जनपद
इकाई र्ाजजयाबाद प्रमाखणत करता हूुँ कक मृतक
आधश्रत के उप ननरीक्षक नार्ररक पुललस के पद
पर भती हेतु आयोजजत इस शारीररक दक्षता
परीक्षा, जजसमें पुरुष अभ्यधथगयों को 4.8 कक०मी०
के. में तथा मदहला अभ्यधथतयों को 2.4 कक०मी०
की दौड़ 16 भमनि में पूरी करनी है, में िाग लेने
हेतु मैं पूणत रूप से स्वस्थ हूूँ और इसमें स्वेच्छा
से नाम ............ की शारीररक क्षतत / स्वास््य
सम्प्िन्िी अवरय घिना घदित होने पर उसके भलये
मैं स्वयं म्जम्प्मेदारी होऊंगा / होऊंगी। यह िी कक
मेरी पहचान ............... करने आदद के भलए
पुभलस िती िोडत को मेरे आिार डािा का उपयोग
करने के भलए राधिकृत करता/करती हूूँ।

31.12.22

र्ीता रानी
अभ्यथी के हस्ताक्षर

प्रनत हस्ताक्षररत

ह0/अस्पष्टि

कायागलयाध्यक्ष के हस्ताक्षर

नाम/पदनाम के मुहर व टदनाांक

मोहर/अस्पष्टि

// सत्य प्रनतललवप //"
(emphasis supplied)

8. In this backdrop, learned Standing
Counsel for the appellant-State submitted
that
once
the
respondent-petitioner
participated in the physical examination
without any objection and that too, out of her
own freewill and failed therein, then she
could not turn around and ask for second
chance.

9. Learned Standing Counsel has
further placed reliance upon the Clause 2 (5)
of the Government Order dated 18.09.2015,
which clearly provides that only one chance
will be offered to the applicants, who are
inclined
to be
appointed
under
the
compassionate appointment. The aforesaid
G.O. dated 18.09.2015 was not under
challenge before the learned Single Judge.
Hence, learned Single Judge erred in law in
according the second chance to the
696 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner, which is, in fact, not available to
the candidates claiming compassionate
appointment.

10. Learned Standing Counsel for the
appellant-State in support of his submission
has further placed reliance upon the
judgment and order dated 05.10.2021
passed by Hon'ble the Apex Court in Civil
Appeal No.6003 of 2021 (The State of Uttar
Pradesh & Ors. Vs. Premlata) reported in
AIR 2021 SC 4984 and submitted that, in
fact, the petitioner was not liable to be
offered the post of Sub-Inspector, which is
higher post than the post of Head Constable
on which her husband was admittedly
discharging his duties and hence, she could
have been offered the post of Constable or
any other post lower than that. In this regard,
he has also relied upon the interpretation
given by the Hon'ble Apex Court to the term
"suitable post" under Rule 5 of the Rules,
1974. The relevant portion of the aforesaid
order is reproduced hereinunder:-

"10.1 Applying the law laid down
by this court in the aforesaid decisions and
considering
the
observations
made
hereinabove and the object and purpose for
which the appointment on compassionate
ground is provided, the submissions on
behalf
of
the
respondent
and
the
interpretation by the Division Bench of the
High Court on Rule 5 of Rules 1974, is
required to be considered.

10.2 The Division Bench of the
High Court in the present case has
interpreted Rule 5 of Rules 1974 and has
held that 'suitable post' under Rule 5 of the
Rules 1974 would mean any post suitable to
the
qualification
of
the
candidate
irrespective of the post held by the deceased
employee. The aforesaid interpretation by
the Division Bench of the High Court is
just opposite to the object and purpose of
granting
the
appointment
on
compassionate ground. 'Suitable post' has
to be considered, considering status/post
held by the deceased employee and the
educational qualification/eligibility criteria
is required to be considered, considering
the post held by the deceased employee and
the suitability of the post is required to be
considered vis a vis the post held by the
deceased employee, otherwise there shall
be no difference/distinction between the
appointment on compassionate ground and
the regular appointment. In a given case it
may happen that the dependent of the
deceased employee who has applied for
appointment on compassionate ground is
having the educational qualification of
Class II or Class I post and the deceased
employee was working on the post of
Class/Grade IV and/or lower than the post
applied,
in
that
case
the
dependent/applicant
cannot
seek
the
appointment on compassionate ground on
the higher post than what was held by the
deceased employee as a matter of right, on
the ground that he/she is eligible fulfilling
the eligibility criteria of such higher post.
The aforesaid shall be contrary to the object
and purpose of grant of appointment on
compassionate ground which as observed
hereinabove is to enable the family to tide
over the sudden crisis on the death of the
bread
earner.
As
observed
above,
appointment on compassionate ground is
provided
out
of
pure
humanitarian
consideration taking into consideration the
fact that some source of livelihood is
provided and family would be able to make
both ends meet.

11. In view of the above and for
the reasons stated above, the Division
Bench
of
the
High
Court
has
misinterpreted and misconstrued Rule 5 of
the Rules 1974 and in observing and
holding that the 'suitable post' under Rule
5 All. State of U.P. & Ors. Vs. Geeta Rani
697
5 of the Dying In Harness Rules 1974
would mean any post suitable to the
qualification of the candidate and the
appointment on compassionate ground is
to be offered considering the educational
qualification of the dependent. As observed
hereinabove such an interpretation would
defeat
the
object
and
purpose
of
appointment on compassionate ground."

(emphasis supplied)

11. To elaborate his submissions he
has placed reliance upon the judgment and
order dated 02.08.2022 passed by Hon'ble
the Apex Court in Civil Appeal No.-5038 of
2022 (Suneel Kumar Vs. State of U.P. &
Ors.) reported in AIR 2022 SC 5416. The
relevant portion of the aforesaid order is
reproduced hereinunder:-

"10. At the same time, as far as
the question relating to the entitlement as it
were of the appellant to be considered to
the post of Gram Panchayat Officer is
concerned, it is without doubt a post borne
in Class-III. The father of the appellant
was working as a Sweeper borne in ClassIV post. We have noticed the view taken by
this Court in Premlata (supra). In other
words, the law as declared is to the effect
that the words "suitable employment" in
Rule 5 must be understood with reference
to the post held by the deceased employee.
The superior qualification held by a
dependent cannot determine the scope of
the words "suitable employment".

11. It is clear that the Annexure
P-1 does not represent statutory Rules. We
do not think we should be persuaded to take
a different view as things stand. We cannot
eclipse the dimension that the whole
purport of the scheme of compassionate
appointment is to reach immediate relief to
the
bereaved
family.
In
such
circumstances, the meaning placed on the
words "suitable employment" bearing in
mind the post held by the deceased
employee cannot be said to be an
unreasonable or incorrect view."

12. Learned Standing Counsel has also
placed reliance upon the judgment and order
dated 04.03.2022 passed by a Division
Bench of this Court in SPECIAL APPEAL
No.- 363 of 2019 (State of U.P. and 2
Others Vs. Ashif Ali) which also dealt with
a similar issue of providing second chance
to a candidate claiming compassionate
appointment. The relevant portion of the
aforesaid order is reproduced hereinunder:-

"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."

13. Referring to the order passed by the
learned Single Judge, he submitted that the
learned Single Judge while considering the
matter has heavily relied upon the ratio laid
down by another Single Bench in an order
dated 22.10.2020 passed in Service Single
No. - 14796 of 2020 (Dharmendra Singh
Vs. State of U.P. Thru. Prin. Secy. Home,
Lko. & Ors.) which itself contained that it
will not be treated as "a precedent". The
same is extracted hereinunder:-

"On 06.10.2020 the following
order was passed by this court. Today Shri
698 INDIAN LAW REPORTS ALLAHABAD SERIES
Ranvijay Singh Additional Chief Counsel
has informed the court on the basis of
instructions that in the physical endurance
test a distance of 4.8 k.m. was to be run by
the petitioner in 30 minutes but he
completed same in 30.01 minutes i.e. he
overshot the time limit only by one second.
This is precisely the case of the petitioner
that he should be given one more
opportunity considering the fact that he is
being considered for appointment on
compassionate basis.

Considering the fact of the case as
the petitioner exceeded the time limit only by
one second, ends of justice require that he
be given one more opportunity by the
opposite parties to undergo the physical
endurance test. It should be conducted
within two weeks of receipt of this order,
based on which the candidature of the
petitioner for compassionate appointment
shall be considered. This order shall not be
treated as a precedent as it has been passed
in peculiar of facts of the present case.

Petition is disposed of in the
aforesaid terms."

 (emphasis supplied)

14. He further submitted that the
aforesaid order dated 22.10.2020 passed by
the learned Single Judge was assailed by the
State in the intra-court appeal i.e. SPECIAL
APPEAL DEFECTIVE No. -84 of 2021
(State of U.P. Thru. Prin. Secy. Home Lko.
& Ors. Vs. Dharmendra Singh), wherein
the Division Bench of this Court has
proceeded to observe that the order passed
by learned Single Judge was based upon
equity and not to be treated as a precedent,
even though, the order passed by learned
Single Judge was affirmed and the Special
Appeal was dismissed vide judgment and
order dated 11.2.2021. Thereafter, against
the appellate order, the State Government
has preferred a Special Leave to Appeal
before the Hon'ble Apex Court being
Special Leave to Appeal (C) No(s).
7554/2021 (State of U.P. & Ors. Vs.
Dharmendra Singh), wherein, Hon'ble
Apex Court was pleased to dismiss the same
making an observation to the effect that
issue of law shall remain open and the
judgment of the Division Bench shall not be
operated as a precedent. The order passed by
the Hon'ble Apex Court is reproduced
hereinunder:-

"Having regard to the facts and
circumstances of this case, we do not deem
it necessary to interfere with the impugned
judgment and order in exercise of the power
under Article 136 of the Constitution of
India.

The special leave petition, is
accordingly, dismissed.

We, however, make it absolutely
clear that the issue of law shall remain
open and the judgment of the Division
Bench shall not operate as a precedent."

 (emphasis supplied)

15. Learned Standing Counsel has also
drawn our attention to the order dated
21.11.2023 passed by learned Single Judge
in WRIT - A No.19265 of 2023 (Anil
Kumar and 2 Others Vs. State of U.P. and
3 Others), wherein, learned Single Judge
has disposed of the writ petition extending
the benefit to the petitioners, therein, under
Clause 2(5) of the Government Order dated
18.09.2015.
The
aforesaid
order
is
reproduced hereinunder:-

"1. Heard Sri Vijay Kumar
Pandey, learned counsel for the petitioner
as well as learned Standing Counsel.

2.Petitioner sought appointment
on compassionate ground as Constable as
he is intermediate qualified. However, in the
5 All. State of U.P. & Ors. Vs. Geeta Rani
699
he could not qualify in the Physical
Efficiency Test.

3. Learned counsel for the
petitioner submits that he is entitled to the
benefit as given by this Court in the case of
Jitendra Singh and another vs. State of U.P.
and 3 others, Writ A No. 16436 of 2022.

4. Learned Standing Counsel
submits that in the above regard he has
obtained instructions and in view of the
provisions
as
contained
under
the
Government
Order
dated
18.09.2015
petitioner can be adjusted against any other
post, if he applies afresh within three
months. The provision as contained in para
5 of the instructions is reproduced
hereunder:

"5. यह कक प्रश्नर्त भती शासनादेश
टदनाांककतः 18.09.2015 के प्राविानों के अन्तर्गत
सांपन्न की र्यी थी, जजसके प्रस्तर-2(5) में
ननम्नवत हैः-

"ककसी भी पद पर मृत पुललस कमी
के आधश्रत के रूप में भती हेतु ककसी भी अभ्यथी
को ननयमानुसार एक ही अवसर प्रदान ककया
जायेर्ा, अर्र वह इस हेतु प्रदान ककये र्ये अवसर
में ककसी भी कारण से उस पद के ललए ननिागररत
प्रकियानुसार सेवायोजन पाने में असफल रहता है,
तो उसे ककसी ननम्न पद पर सेवायोजन हेतु ऑफर
टदया जायेर्ा और वह यटद 03 माह के अन्दर
अन्य ककसी पद पर सेवायोजन हेतु आवेदन नहीां
करता है, तो यह समझा जायेर्ा कक वह पुललस
ववभार् में ककसी भी पद पर सेवायोजन पाने का
इच्छुक नहीां है।"

5. In view of the above, it is hereby
provided that since the petitioner has failed
in physical efficiency test for the post of
Constable, it will remain open for the
petitioners to apply afresh for any other post
in the police department which may be
offered to him as per their eligibility.

6. It is accordingly provided that
in the event petitioners make an application
within four weeks from today, the same shall
be considered and disposed of in the light of
provisions
as
contained
under
the
Government Order dated 18.09.2015 and
quoted herein above. Petitioners, if held
entitled for any other post, the same shall be
offered within 30 days from the date of
decision to be taken by the authority.

7. With the aforesaid observations
and directions, this petition stands disposed
of."

ARGUMENTS ON BEHALF OF
RESPONDENT-PETITIONER

16.

Learned
counsel
for
the
respondent-petitioner vehemently opposed
the instant appeal and submitted that learned
Single Judge has rightly passed the order on
equity and essentially in respect of only 3
seconds of delay, the authorities must take
sympathetic consideration, especially in the
backdrop
that
the
matter
relates
to
compassionate employment and as such, the
appeal is liable to be dismissed.

17. The learned counsel for the
respondent-petitioner
has
drawn
our
attention to the judgement of Dharmendra
Singh (supra) and submitted that the
learned Single Judge has exercised his
equity jurisdiction under Article 226 of the
Constitution of India and as such, relying
upon the same ratio the learned Single Judge
has committed no error in exercising equity
in favour of the respondent-petitioner and
granting another opportunity to her in the
present case.

ANALYSIS

18. We have heard the learned counsel
for the parties and perused the material on
700 INDIAN LAW REPORTS ALLAHABAD SERIES
record and have carefully considered the
judgements cited by the learned Advocates.

19. The present matter relates to
compassionate
appointment
in
a
disciplined force i.e. police force and
under the relevant provisions of the Rules,
no relaxation in physical examination is
accorded even to the direct recruitees and
if they do not complete the race in the
specific time, they are not selected hence
no relaxation is available or to be extended
qua the candidate seeking compassionate
appointment, who even have a subsequent
chance to claim the next lower post within
the three months. In the present matter,
admittedly, the admit card was issued by
the State-appellant for physical test, which
took place on 04.01.2024 and she had
participated in the physical examination
without any objection, compulsion or
duress and with her own consent and
freewill, which is crystal clear from the
declaration form dated 31.12.2022 filled
by her. In such admitted situation, in case,
she failed in physical efficiency test then
under the compassionate employment, she
could not ask for a second chance to
undergo the physical efficiency test again.

20. Surprisingly, in the present
matter, the husband of the petitioner was
working as Head Constable and she was
allowed to participate for an appointment
under the compassionate employment on
the higher post to which her husband was
holding i.e. on the post of Sub Inspector.
The said offer could not be accorded to the
petitioner-respondent in view of the law
laid down by the Apex Court in the case of
Premlata (supra) and Suneel Kumar
(supra). Even on this score she was not
eligible to be appointed as Sub-Inspector.
Moreover, she failed in the physical
efficiency test.

21. No such provision could be placed
by the counsel for the respondent-petitioner
before us, which contemplates for providing
another chance to clear the physical
efficiency test. Whereas, in another matter,
the learned Single Judge, on the similar
facts, has already disposed of the matter in
the light of the Clause 2(5) of the the
Government Order dated 18.09.2015. For
ready reference, the aforesaid Clause 2(5) of
the G.O. dated 18.09.2015 is reproduced
hereinunder:-

"ककसी भी पद पर मृत पुललस कमी
के आधश्रत के रूप में भती हेतु ककसी भी अभ्यथी
को ननयमानुसार एक ही अवसर प्रदान ककया
जायेर्ा, अर्र वह इस हेतु प्रदान ककये र्ये अवसर
में ककसी भी कारण से, उस पद के ललए ननिागररत
प्रकियानुसार सेवायोजन पाने में असफल रहता है,
तो उसे ककसी ननम्न पद पर सेवायोजन हेतु ऑफर
टदया जायेर्ा और वह यटद 03 माह के अन्दर
अन्य ककसी पद पर सेवायोजन हेतु आवेदन नहीां
करता है, तो यह समझा जायेर्ा कक वह पुललस
ववभार् में ककसी भी पद पर सेवायोजन पाने का
इच्छुक नहीां है।"

22. It is not in dispute that the
judgement relied upon by the learned
counsel for the respondent-petitioner in the
case of Dharmendra Kumar (supra) itself
contained that it shall not be treated as a
precedent. Although the Special Appeal and
the Special Leave Petition filed by the State
were dismissed but while dismissing the
SLP the Apex Court also made it absolutely
clear that the issue of law shall remain open
and the judgement of the Division Bench
shall not operate as a precedent.

23. In the opinion of the Court, the
orders passed by the writ court, appellate
5 All. State of U.P. & Ors. Vs. Geeta Rani
701
court and the Apex Court in the case of
Dharmendra Kumar (supra) is not
binding precedent. It would be apt to have a
glance of definition of "precedent":-

"As per Black's law dictionary,
'precedent' means an adjudged case or
decision of a court of justice, considered as
furnishing an example or authority for an
identical or similar case afterwards arising
or a similar question of law."

Salmond: -Precedent is, ?in a
loose sense, it includes merely reported case
law which may be cited & followed by
courts.? In a strict sense, that case law
which not only has a great binding authority
but must also be followed.

Keeton: - Judicial precedent is a
judicial decision to which authority has in
some measure been attached.

24. The origin of the term 'precedent'
is from a Latin term called 'stare decisis'
which became the doctrine of legal
precedent. The term 'stare decisis' refer to
courts looking at similar or historical case as
a guide to take a judgement in future, it
means to stand by the decided cases. This
doctrine is mentioned in the Article 141 of
the Constitution. It is used in all courts and
in all legal issues. The doctrine of precedent
is expressly incorporated in India by Article
141 of the Constitution of India, 1950.
Article 141 provides that the decisions of the
Supreme Court are binding on all courts
within the territory of India. Although there
is no express provision, but by convention
the decisions of a High Court are binding on
all lower courts within the territorial
jurisdiction of that High Court. Similarly, a
decision of a higher Bench, is binding on the
lower Bench.

25. With the evolution of law, the
concept
of
precedent
gained
new
dimensions and it came to be classified as
'binding precedents', 'persuasive precedent',
'original
precedent'
and
'declaratory
precedent'. Binding precedents are also
known as authoritative precedents. These
precedents are bound to be followed by a
lower court or other equivalent courts once
a judgment is made whether they approve it
or not. Persuasive precedents include
decisions taken by an inferior court that a
higher court or any other court is not obliged
to follow. It depends on the court to decide
whether to consider it or not. An original
precedent are those judgements where the
court has never taken a decision in a case
and it has to use its own discretion to reach
to a conclusion. A declaratory precedent is
application of existing precedent in a
particular case. A declaratory precedent
involves declaring an existing law and
putting into practice, hence it does not help
in creating new law.

CONCLUSION

26. In the aforesaid facts and
circumstances, we are of the opinion that the
learned Single Judge committed an error in
law in following the ratio of an order, passed
by another Bench of same strength which
itself contained that the order shall not be
treated as 'precedent'.

27. In view of the ratio laid down by
Hon'ble the Apex Court in Premlata
(supra) and Suneel Kumar (supra), the
petitioner was not liable to be offered the
post of Sub Inspector. Moreover, once
having failed the physical efficiency test,
no second chance for qualifying the same
could have been offered to a candidate
claiming compassionate appointment. As
such, the order impugned cannot be
sustained and accordingly, the same is set
aside.
702 INDIAN LAW REPORTS ALLAHABAD SERIES

OBSERVATIONS OF THE COURT

28. Before parting, this Court deems it
fit to observe that the appointment under the
compassionate scheme is not meant to be an
alternate source of recruitment. It is
essentially to reach immediate succor to a
bereaved family. In other words, the sudden
passing away of a government servant
creates a financial vacuum and it is to lend a
helping hand to the genuinely needed
members of the bereaved family that an
appointment is provided. It is never meant to
be a source of conferring any status or an
alternate mode of recruitment.

ORDER BY THE COURT

29. In view of the above, it is provided
that as the respondent-petitioner has failed
to qualify in the physical examination for the
post of Sub-Inspector, it will remain open
for
her
to
apply
afresh
seeking
compassionate appointment on any other
suitable post in the Department, which may
be offered to her as per her eligibility and
suitability. It is also provided that in the
event the respondent-petitioner makes any
such application within four weeks from
today, the same shall be considered and
disposed of in view of the observations
made hereinabove as well as taking into
account the Government Order dated
18.09.2015 within next three weeks. If the
petitioner is considered entitled for any
other post by the department, the same shall
be offered to her within a period of 30 days'
from the date of decision to be taken by the
authority.

30. With the aforesaid observations,
the instant special appeal stands disposed of.

31. There shall be no order as to costs.
----------
(2024) 5 ILRA 702
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.05.2024

BEFORE

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

Writ-A No. 2175 of 2023

Om Veer & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sr. Advocate, Sri Uma Nath Pandey

Counsel for the Respondents:
Anjali Upadhya, C.S.C.

A. Service Law - Constitution of India -
Article 14 - Discrimination - Termination
from service - Petitioners were engaged
with NOIDA through Service provider as
Assistant Manager over a long period of
time - Though 187 old employees, who
were engaged through another Service
providers have been retained, services of
the petitioners have been dispensed with -
Permissibility - Held, the Greater NOIDA,
being an establishment of the St., ought
not to pick and choose, throwing out able
and experienced hands and replacing them
by fresh hands for no ostensible and reason
individuate to each case - The petitioners
had been on the Greater NOIDA's roll
directly, may be as contractual employees,
over periods of time, spreading from 10-23
years - Held further, dispensation of the
petitioners' services in the fashion, that
has
been
done
through
the
order
impugned, appears to be unreasonable,
arbitrary and discriminatory - High Court
issued Mandamus for re-engagement of
the petitioners, if regularly selected have
not already joined. (Para 18, 19 and 25)

Writ petition allowed in part. (E-1)

List of Cases cited: