IS BASE PAR RE PHYSICAL HO SAKTA HAI Court No. - 33 Case :- SPECIAL APPEAL DEFECTIVE No. - 1068 of 2012 Petitioner :- Ajay Kumar Yadav Respondent :- State Of U.P. And Others Petitioner Counsel :- Deo Dayal Respondent Counsel :- C.S.C. Honble Sushil Harkauli,J. Honble Naheed Ara Moonis,J. Heard, both the sides. The appellant has been denied compassionate appointment as he failed to qualify the physical endurance test in the for...m of completing a 10 Km. Run in 60 minutes. In any examination/competitive examination normally in fairness the candidates are given advance notice of the details/syllabus of the examination, which they have to face so to enable them to prepare for the examination. The purpose of examinations is not to take the candidates by surprise. Similarly in case of severe physical endurance tests, the candidates must be given sufficient time to practice and to build up their stamina to face the endurance test. On that basis, in a case of compassionate appointment a learned Single Judge of this Court had issued the requisite directions or by the judgement dated 28.10.2009 in Writ Petition No. 52357 of 2009. The present case is also a case of compassionate case. While it is true that a person is not entitled to a post for which that person is not eligible/qualified/fit even by way of compassionate appointment. But a candidate, who is seeking compassionate appointment, must be given a reasonable time to prepare for the endurance test. What amount of time will be reasonable would depend upon the severity of the physical test. In this case the appellant was not given adequate time and indication about what he was required to face. In the circumstances, we allow this appeal and require the respondents to give another opportunity to the appellant for facing the endurance test. For this purpose the respondent no. 2 will fix another date for endurance test which the appellant could not pass on the previous occasion and the date will not be earlier than one month of the date on which certified copy of this order will be presented before respondent no. 2, provided the copy is presented within two weeks from today. If the appellant passes the endurance test on this new opportunity, he will not be denied a compassionate appointment on the ground that he had failed the endurance test on the previous occasion. It has been argued by the Standing Counsel for the State that a second opportunity is not permissible. Assuming that to be correct, we reject the submission because in the eye of law this is not the second but is the first opportunity, as we have held that the first opportunity was illusory want for of notice and time. The appeal is allowed as above. Order Date :- 10.12.2012 S.Prakash (Naheed Ara Moonis,J.) (Sushil Harkauli,J.)
Posted on: Fri, 22 Aug 2014 10:41:12 +0000
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