JUDGMENT Shishir Kumar, J.
1. This writ petition has been filed for issuing a writ of mandamus directing the respondents to grant forthwith appointment to the petitioner on Group-C post in district Etawah on the basis of the selection of the year 2001 against the unfilled vacancy on account of non-joining of one selected candidate and for further issuing a writ in the nature of certiorari quashing the order dated 27.3.2003 passed by the District Magistrate, Etawah.
2. The facts arising out of the writ petition are that an advertisement was issued by the District Magistrate, Etawah on 28.8.2001 inviting applications for filling up Group-C posts in the different departments of the district. A copy of the said advertisement has been filed as Annexure-l to the writ petition. The petitioner being fully qualified and eligible also applied on the basis of the said advertisement and the petitioner was allotted Roll No. 14003235. A written examination was held on 7.10.2001 and the petitioner participated and declared qualified. By means of communication dated 9.12.2001 issued by the Addl. District Magistrate, the petitioner was directed to appear in the typing /Stenography test on 13 12.2001 I lie petitioner participated in the aforesaid typing test and qualified the same The final result of the aforesaid selection was not declared immediately on account of some order issued by the State Government for prohibition dated 21.12.2001 The ban was lifted by order-dated 176 2002 Then the respondents in pursuance of the lifting of the prohibition on appointments. the steps were taken for appointment by respondents on the basis of the Selection held It was only in the first week of May 2003, the appointment orders were issued to the selected candidates.
3. According to the information of the petitioner one Saroj Kumar Dixit whose roll number was I770 was also selected under a general category candidate and an appointment letter was issued in his favour but he failed to join on account of the fact that he was already employed in the National Thermal Power Corporation. Narora. district-Bulandshahr To the best knowledge of the petitioner Sri Saroj Kumar Dixit declined to join in pursuance of the appointment letter issued in his favour. In view of the aforesaid fact, there existed one vacancy. The petitioner who was entitled to grant an appointment against the said vacancy on account of non-joining of Saroj Kumar Dixit as the petitioner has secured 115 marks in the selection while the person who secured 116 marks namely Alok Shakya has already been granted appointment, but as the respondents have not considered the case of the petitioner for appointment, the petitioner filed a representation dated 7.6.2003 before the Addl. District Magistrate. As no action was taken and in spite of the repeated requests made by the petitioner, no appointment letter has been issued though the petitioner was entitled to be appointed as it is clear that one vacancy due to the non-joining of one selected candidate existed.
4. The writ petition was entertained by this Court and order was passed on 18.7.2003 and this Court has granted three weeks to file counter affidavit, By an interim measure a mandamus was issued to consider and decide the petitioner's representation dated 7.6.2003. Subsequently, the representation of the petitioner has been decided and the same has been rejected vide its order dated 2"X 2004 A copy of the same has been filed with the counter affidavit as Annexure-CA-4. An amendment application was filed Challenging the order-dated 27 8 2004 and the said amendment application was allowed vide its order-dated 6.9.2005.
5. It has been contended on behalf of the petitioner that as the petitioner has secured 115 marks and the candidate who has secured 116 marks has already been granted appointment and it is an admitted case that one Saroj Kumar Dixit in spite of the fact of issuance of the appointment letter has not joined, therefore, one vacancy was there and as such, the petitioner was entitled to be appointed on the said post. Reliance has been placed upon a Division Bench Judgment of this Court reported in 2006 (1) I Education Service Cases Page 491, Om Prakash Singh v. State of I .P. and Ors. and reliance has been placed upon paras 5 and 7 of the said judgment which are reproduced below:
5. In our opinion, the argument is good and excellently put forward. It is further the law, that if the posts for which selections have been made are not actually filed up by the joining of candidates who might later have withdrawn, but that the withdrawal or not joining happened before the actual filling up of posts, then the ordinary course to be followed by the public respondents would be to draw upon the unexhausted merit list and give appointment to persons who are next in order of merit. The Supreme Court's judgment in Jai Naram Ram v. State of U.P. A.I.R. 1996 S.C. 703 is relevant for this case. Paragraph 6 and 7 from the said judgment are set out below:
6 It is not in dispute that the appellant is u reserved candidate belonging to Scheduled Castes. In view of the admitted position that four posts were reserved in the Finance I Department in category I mentioned earlier and 4 selected candidates appeared to have not joined in the service, as asserted in para II of the S.I,. II, and not specifically denied by the respondents in the counter-affidavit in para 6 as referred to earlier, it is clear that the appellant also in the 4lh candidate in the order of merit would have been selected, had there been a requisition by the State Government for appointment of the reserved candidates.
7. Right to seek appointment to a post under Article 14 read with Article 16(1) and (4) is a constitutional right to equality. The State failed to perform its constitutional duly to requisition the P.S.C. to recommend the next qualified person to the posts reserved for scheduled castes. Under these circumstances, denial of appointment of the appellant and three others above is unconstitutional. Therefore, the respondents are not justified in denying the claim of the appellant for the appointment to the above post.
8. From both these points of view, i.e., the equitable point of view and the general applicability of service law, as laid down by the Supreme Court, (he case of the writ petitioner appellant is good and unanswerable. The order under appeal is set aside. The relief is granted to the writ petitioner as prayed for in the writ petition Appointment be granted to him immediately, in any event not later than a fortnight hereof. 11 is services be continued to he accepted and he be paid salary as per rules and practice applicable.
6. Further reliance has been placed upon a judgment of this Court reported in 2002 (3) UPLBEC 2675 Triiok Nath Mishra and Ors. v. state of U.P. and Anr.. In view of the aforesaid judgments it has been Submitted that it was incumbent on the part of the respondents that the candidates selected will have a vested right to claim for preparation of the select list or waiting list. It has further been submitted that the petitioners were selected to keep in the waiting list and when few candidates appointed did not join and the vacancies remain unfilled and the petitioners had per chance for being considered for appointment on the unfilled post, the Court has quashed the office memo dated 15.11.1999 for giving up waiting list has been quashed and it has been held that it is violative of rights of the petitioner under Article 14 and 16 of the Constitution of India and this Court has directed for preparation of the waiting list and appointment. The relevant paragraphs on which reliance has been placed are paras 11 and 14, which are being reproduced below:
11. The first question need not detain this Court for long. The effect of Office Memorandum dated 15.11.1999 was not to change the -selection procedure, namely, the number of vacancies, eligibility of candidates and method of selection. Petitioners do have a vested right regarding preparation of select list or a waiting list. The advertisement was made on 6.9.1998, preliminary examination was taken on 7.2.1999, main written examination was held in June, 1999, and interviews were held between. 1.11.1999 to 4.12.1999. Final result was declared on 19,12.1999. The impugned Office Memorandum dated 15.11.1999 was issued while interviews were in process. It vi as not issued only for subject selection and covered all the selections l he made by the I'.I'. Public Service Commission (or the Stale Government. a corrigendum notification dated 24.6.2000 was published in newspaper Rastriya Sahara on 25'k June, 2000 with regard to the selected candidates. In the circumstances the first question is answered in affirmative.
14. The Supreme Court in a number of decisions relied upon in Prem Singh and Ors. v. Haryana State Electricity Hoard and Ors. , has-held, after following the earlier decisions, that if the requisition and advertisement are for a certain number of posts only the Slate cannot make more appointments than the number of posts adverused, even though it mught have prepared a select list of more candidates.
7. Another judgment relied upon by the counsel for the petitioner is judgment in Writ Petition No. 55368 of 2004 Jitendra Kumar v. State of U.P. and Ors. and this Court has held that the right of the petitioner for being considered for appointment against the available advertised vacancy, which remained unfilled because of candidate higher in merit having not joined, cannot be defeated by the respondents on the ground that in the rules of 2002 and that of 2003, there is no provision for preparation of the waiting lilt The Court has held that there is no provision in the aforesaid rules qua preparation of the waiting list; on the contrary this Court has held that an older restraining the preparation of the waiting list would be arbitrary
8. In such circumstances the petitioner states that as the notified vacancy already existed and the petitioner was at serial No. 1 of the waiting list as Such he was entitled to be appointed on the said post. But the respondents without considering the aforesaid fact, has rejected the claim of the petitioner-vide its order dated 27.8.2003.
9. A counter affidavit has been filed on behalf of the contesting respondents. It has been submitted that Sri Saroj Kumar Dixit was selected in the General Category by the Selection Committee under the provision of U.P. Outside Purview of Public Service Commission Group-C Direct Recruitment Niyamawali 2001, the duty of the District Selection Committee is only to select the candidate against existing vacancies and after selection send their names to the department concerned. It has further been stated that as per merit the petitioner has not been selected and his name does not find place in the merit list and in view of the Niyamawali 2001 it does not prescribe for preparing any waiting list as such no waiting list was prepared. The Niyamawali does not prescribe that in any case if the selected candidate does not join the post, the next candidate will be permitted to join on the said post. After publication of the interim merit list the objections were invited. The petitioner has also filed his objection and the Selection Committee after affording an opportunity of personal hearing to the petitioner, has rejected the said objection. The respondents further submit that the representation of the petitioner was considered and a specific finding has been recorded that the name of the petitioner appears at serial No. 7 and there was vacancy of 6 general candidates and as the name of the petitioner is at serial No. 7, therefore, his name has not been included in the select list.
10. The respondents have placed reliance upon a judgment of the Apex Court All India SC and ST Employees Association and Anr. v. A. Arthur Jeen and Ors. and has made a submission on the basis of the aforesaid judgment that inclusion in the panel of selected candidates it has been held by the Apex Court that it does not confer any indefeasible right even against the existing vacancies, State is under no obligation to fill up all or any of the vacancies. Inclusion of name in the panel or selection list or reserve list or waiting list or merit list does not confer a right of appointment. Reliance has been placed upon paras 13 and 15 of the said judgment which are reproduced below:
13. Although the candidates included in (he panel showing their provisional selection do not get vested right to appointment, they will be surely interested in protecting and defending the select list. It is an admitted position that before the Tribunal the successful candidates whose names were included in the panel of selection were not made parties. The argument of the learned Counsel that since the names and particulars of the successful candidates included in (he panel were not given, they could not be made efforts to get the particulars; at least they ought to have impleaded some of the successful candidates, may be, in the representative capacity: if the large number of candidates were there and if there was any difficulty in service of notices on them, they could have taken appropriate steps to serve them by any one of the modes permissible in law with the leave of the Tribunal. This Court in Prabodh Verma v. Stale of U.P. has held that in writ petitions filed against the Slate questioning the validity of recruitment of a large number of persons in service could not be proceSeded with to hear and take decision adverse to those affected persons without getting them or their representatives impleaded as parties. In para 50 of the said judgment, summarizing the conclusions this Court in regard to impleading of the respondents has stated that (SCC pp. 28H-H9) A High Court ought not to hear and dispose of a writ petition Article 226 of the Constitution without the person who would be vitally affected by its judgment being more it as respondents or at least some of them being before it as respondents in a representative capacity if their number is too large to join them as respondents individually, and, if the petitioners refuse to so join them, the high Court ought to dismiss the petition for non-joinder of necessary parties.
14. This Court in para 4 of the judgment in A.M.S. Sushanth v. M. Sujatha has stated thus: (SCC 198)
4. We find that none of the persons who were selected and whose appointments were set aside by the High Court had been impleaded as a party-respondent. It appears that a public notice was given in a representative capacity only with regard to the appointment to the post of Assistant Sericulture Officer. The direction of the high Court, however, is not confined to that post alone and it is the appointments to the other posts also which have been set aside. This could not be done. The principles of natural justice demanded that any person who was going to be adversely affected by the order should have had an opportunity of being heard. That apart, one would have expected the High Court to have considered the report submitted under Section 65 on its merits and then decided whether the said report should be accepted or not.
11. I have heard the learned Counsel for the petitioner and the Standing Counsel and have perused the record. From the record it is clear that the petitioner was at serial No. 7 and there was only six vacancies of general candidates and from the record it is also clear that the name of the petitioner was not included in the select list. The respondent has come with a case before this Court that in view of the Niyamawali of 2001, no waiting list was prepared. As such the petitioner cannot say that the petitioner was selected and he has a right of appointment in case one of the selected candidates has not joined. In view of the Apex Court judgment in Civil Appeal No. 7068 of 1996, State of U.P. v. Harish Chandra decided on 12.4.1996, the Apex Court has taken a view that Courts cannot direct or issue a mandamus to the State to fill up an unfilled vacancy. In case of All India SC & ST Employees (Supra) the Apex Court has gone to that extent that even the inclusion of the name in the select list, it does not confer a right upon a candidate. In the present case admittedly, the petitioner was just below, to the candidate who was selected. The question for consideration before this Court is whether this Court can direct the State to fill up the unfilled vacancy in case one of the selected candidates has not joined in spite of the fact that the respondents have come with a case that no waiting list has been prepared meaning thereby the name of the petitioner has not been included in the select list. If the name was not included in the select list whether on the basis that one of the selected candidate has not joined, a direction can be issued by this Court far directing the State or the authorities to issue appointment letter in favour of the petitioner on the basis that one of the selected candidates has not joined. The cases cited by the petitioner does not help to the petitioner as in those cases the issue was regarding the preparation of the waiting list. In that circumstances the Hon'ble Court has directed to prepare a waiting list which was given up on the basis of office memorandum dated 15th November, 1999.
12. In view of the aforesaid fact, I find no merit in this writ petition. The writ petition being devoid of merit is hereby dismissed No order as to costs.