Hon'ble Mahesh Chandra Tripathi,J.
[Oral: V.K. Shukla,J. ] Nadeem Anwar is before this Court for the following reliefs:
I. a writ, order or direction in the nature of mandamus be issued commanding the respondent no. 2 to forward the name of the General Category candidate in order of the merit to fill the posts of Civil Judge (Junior Division), lying vacant which was a part of the advertisement dated 23.5.2013 before the State Government pursuance to which follow up action may be taken within a reasonable period for appointment.
II. A writ, order or direction in the nature of which this Hon'ble Court may deem fit and proper under the circumstances of the case.
III. Award cost to the humble petitioner throughout of the present writ petition.
Brief background of the case, as is reflected from the record in question, is that a requisition of 125 posts for U.P. Civil Judge (Junior Division) under U.P. Nyayik Sewa was sent by the State Government vide its letter dated 17.4.2013 and in consonance of the aforesaid requisition the U.P. Public Service Commission (hereinafter referred to as the "Commission") has issued an advertisement for the aforesaid 125 posts of Civil Judge (Junior Division) vide its advertisement No. A-1/E-1/2013 dated 23.5.2013. In the said advertisement the posts for each category was determined as under;
1. 63 posts for General Category candidates
2. 26 posts for Scheduled Caste category candidates
3. 02 posts for Scheduled Tribes category candidates
4. 34 posts for Other Backward Class category candidates.
And under horizontal reservation 02 posts were determined for D.F.F. Candidates and 25 posts were to be filled up by female candidates.
Petitioner pursuant to the aforementioned advertisement in question applied for consideration of his candidature as a General Category candidate and undertook the preliminary examination in question wherein 1314 candidates were found suitable for the written/main examination. Written/Main examination for the aforesaid 125 posts was held by the Commission in the month of January 2014 and out of 1314 candidates, 386 candidates were provisionally qualified for the interview/personality test. This much is also reflected from the record that petitioner faced the interview as a General Category candidate but he could not be selected in the final select list. Record in question reflects that recommendation of 125 selected candidates had been sent by the Commission to the State Government, at the said point of time. Out of aforementioned 125 candidates whose names have been recommended by the Commission to the State Government, candidates placed at serial nos. 17, 26 and 52 have not joined the posts and petitioner's submission before this Court is that against the said vacancies in question petitioner is liable to be offered appointment as he has secured 538 marks like the last selected General Category candidate but on account of being younger in age in consonance with the provisions as contained in the U.P. Judicial Service (Second Amendment) Rules, 2012, he has been left out. Petitioner, in this background, is before this Court with the submission that this Court should come to his rescue and reprieve.
Counter affidavit has been filed on behalf of the Commission and therein this fact has been accepted that candidates placed at serial nos. 17, 26 and 52 have not joined the posts in question and posts are lying vacant and mention has been made that without any proposal/direction of the State Government/Department concerned no such posts could be recommended/filled up by the Commission in reference to main examination of 2013 batch.
Short counter affidavit has also been filed on behalf of the State Government and therein mention has been made that recommendations with regard to 124 candidates have been sent against the total 125 selected candidates to the State Government and out of aforesaid 124 candidates appointment letters have been issued to 122 candidates after their character verification and medical examination. Mention has also been made of the fact that since Kaustubh Mishra and Sudhansu Ranjan Mishra, whose names were shown at serial nos. 17 and 52 sent by the Commission to the State Government, have not joined the posts within the stipulated time, as such, their candidatures have been cancelled by means of orders dated 14.12.2015 and 19.1.2016 respectively. In reference of candidate placed at serial no. 26 in the recommendation list namely Shivendra Kumar Mishra it has been mentioned that final decision could not be taken due to some legal impediment in his matter and after taking legal advice from the Law Department, proceeding is being undertaken.
On the basis of pleadings that have come on record present matter has been taken up for final hearing and disposal.
Sri Siddharth Khare, Advocate, submitted that once candidate whose candidature has been recommended have failed to join and his candidature stood cancelled, then in all eventuality steps ought to have been undertaken for filling up the same from wait-listed candidates as here the life of select list has been subsisting.
Learned Standing Counsel as well as Sri Nisheeth Yadav, Advocate, submitted that in the facts of the case as per the stand taken in the counter affidavit, relief claimed cannot be allowed.
After respective arguments have been advanced, in pith and substance, this fact stands accepted by the State Government that qua the candidates mentioned at serial nos. 17 and 52 decision has already been taken to cancel their candidature vide orders dated 14.12.2015 and 19.1.2016 respectively by the State Government and in reference of candidate placed at serial no. 26 qua the recommendation made in favour of Shivendra Kumar Mishra final decision has not been taken due to some legal impediment and, in view of this, as far as his candidature is concerned, same has not been cancelled and matter is pending.
Selection and appointment of Civil Judge (Junior Division) is regulated by statutory provisions known as The Uttar Pradesh Judicial Service Rules 2001 framed by the Governor in pursuance of the provisions of Clause (3) of Article 348 of the Constitution. The said rules in question have been framed by the Governor in consultation with the Commission and the High Court of Judicature at Allahabad. Procedure for recruitment to the service is contained under Part 5 and matter pertaining to the appointment, probation and confirmation is contained under Part 6. For ready reference, Part V and Part VI of the Uttar Pradesh Judicial Service Rules 2001 are being quoted below;
"PART V Procedure for Recruitment to the Service
15. Determination of vacancies.- The Governor shall, in consultation with the Court, determine and intimate to the Commission the number of vacancies in the posts of Civil Judge (Junior Division) to be filled in during the year of recruitment as also the number of vacancies to be reserved for candidate belonging to Scheduled Caste, Scheduled Tribe and other categories.
16. Competitive Examination.- The examination may be conducted at such time and on such dates as may be notified by the Commission and shall consist of-
(a) a written examination in such legal and allied subject including procedure, as may be included in the Syllabus prescribed under Rule 19, unless the same is otherwise modified by the Governor in consultation with the Court and the Commission;
(b) an examination to test the knowledge of the candidates in Hindi, English and Urdu;
(c) an interview for assessing merit of the candidate giving due regard to his ability, character, personality, physique and general suitability personality, physique and general suitability for appointment to the service.
17. Application Form.- (i) Application for permission to appear at the competitive examination shall be invited by the Commission in the prescribed pro forma published in the advertisement issued by a Commission.
(ii) No candidate shall be admitted to the examination, unless he holds a certificate of admission issued by the Commission.
18. Fees.- Candidates must pay to the Commission and to the President of Medical Board such fees as may from time to time be specified by the Government.
19. Syllabus.- The Syllabus and the rules relating to the competitive examination shall be such as given in the Appendix II, provided that the Syllabus and rules may be amended by the Governor in consultation with the Commission and Court.
PART VI Appointment, Probation and Confirmation
20. List of candidate approved by the Commission.-
(1) After the result of written examination is prepared, the Commission shall call for interview such number of candidates, who in the opinion of the Commission have secured minimum marks as may be fixed by the Commission in this respect.
(2) Notwithstanding anything to the contrary contained in any rules or orders, the Commission shall invite a sitting Judge of the Court to be nominated by the Chief Justice to participate in the interview of the candidates called under sub-rule (1) and the opinion given by him with regard to the suitability of the candidates shall not be disregarded by the Commission unless there are strong and cogent reasons for not accepting the opinion which reasons must be recorded in writing by the Commission.
(3) The Commission then shall prepare a final list of selected candidates in order of their proficiency as disclosed by aggregate of marks finally awarded to each candidate in the written examination and the interview:
Provided that if two or more candidates obtain equal marks in the aggregate, the name of the candidate being elder in age, shall be placed higher:
Provided further that if two or more candidates of equal age obtain equal marks in aggregate, the name of the candidate, who has obtained higher marks in the written examination, shall be placed higher.
21. Appointment to the service.- (1) Subject to the provisions of sub-rule (2), the Governor shall, on receipt of the list of candidates submitted by the Commission under sub-rule (3) of Rule 20, make appointment on the post of Civil Judge (Junior Division) in the order in which their names are given in the list provided the Governors is satisfied that the Candidate is otherwise qualified and entitled for such appointment under these rules.
(2) The select list prepared under sub-rule (3) of Rule 20 shall lapse after all the vacancies advertised or varied after due notification, are filled up."
In the aforementioned Rules of 2001 amendment in question has been introduced known as The Uttar Pradesh Judicial Service (Second Amendment) Rules, 2012 and the said amendments are as follows;
"In pursuance of the provisions of clause (3) of Article 348 of the Constitution, the Governor is pleased to order the publication of the following English translation of notification no. 2189/Two-4-2012-45(32)/2006 dated December 10, 2012.
GOVERNMENT OF UTTAR PRADESH APPOINTMENT SECTION-4 NOTIFICATION Miscellaneous No. 2189/Two-4-2012-45(32)/2006 Dated Lucknow, December 10, 2012 In exercise of the powers conferred by the Article 234 and the proviso to Article 309 of the Constitution, the Governor, in consultation with the Uttar Pradesh Public Service Commission and the High Court of Judicature at Allahabad, is pleased to make the following rules with a view to amending the Uttar Pradesh Judicial Service Rules, 2001:
THE UTTAR PRADESH JUDICIAL SERVICE (SECOND AMENDMENT) RULES, 2012 Short title and commencement 1 (1) These rules may be called the Uttar Pradesh Judicial Service (Second Amendment) Rules, 2012 Substitution of rule 15 2 In the Uttar Pradesh Judicial Service Rules, 2001, hereinafter referred to as the said rules, for the existing rule 15 set out in column 1 below, the rule as set out in column 2 shall be substituted, namely:-
COLUMN 1 Existing rule COLUMN 2 Rule as hereby substituted Determination of vacancies
15. The Governor shall, in consultation with the Court, determine and intimate to the Commission the number of vacancies in the posts of Civil Judge (Junior Division) to be filled in during the year of recruitment as also the number of vacancies to be reserved for candidate belonging to Scheduled Caste, Scheduled Tribes and other categories.
Determination of vacancies
15. (1) The Governor shall, in consultation with the Court, determine and intimate to the Commission the number of vacancies in the posts of Civil Judge (Junior Division) to be filled in during the year of recruitment as also the number of vacancies to be reserved for candidate belonging to Scheduled Caste, Scheduled Tribes and other categories.
(2) While determining the vacancies in the posts of Civil Judge (Junior Division) to be filled in during the year of recruitment, the existing number of vacancies plus anticipated vacancies for the next one year be included.
Amendment 3. of rule 20 In the said rules, in rule 20, for the existing sub-rule (3) set out in column 1 below, the sub-rule as set out in column 2 shall be substituted, namely COLUMN 1 Existing sub-rule COLUMN 2 Sub-rule as hereby substituted (3) The Commission then shall prepare a final list of selected candidates in order of their proficiency as disclosed by aggregate of marks finally awarded to each candidate in the written examination and the interview:
Provided that if two or more candidates obtain equal marks in the aggregate, the name of the candidate being elder in age, shall be placed higher:
Provided further that if two or more candidates of equal age obtain equal marks in the aggregate, the name of the candidate, who has obtained higher marks in the written examination, shall be placed higher.
(3) The Commission then shall prepare a final list of selected candidates in order of their proficiency as disclosed by aggregate of marks finally awarded to each candidate in the written examination and the interview.
NOTE- The wait list shall be prepared category-wise i.e. for Scheduled Castes, Scheduled Tribes and other categories. The wait-list shall be utilized only in case, the candidates in the select list do not join the posts and shall not be utilized for any subsequent vacancies.
Provided that if two or more candidates obtain equal marks in the aggregate, the name of the candidate being elder in age, shall be placed higher:
Provided further that if two or more candidates of equal age obtain equal marks in the aggregate, the name of the candidate, who has obtained higher marks in the written examination, shall be placed higher.
A bare perusal of the Rules, quoted above, would go to show that the Governor in consultation with the Court would determine and intimate to the Commission the number of vacancies in the posts of Civil Judge (Junior Division) to be filled in during the year of recruitment as also the number of vacancies to be reserved for candidate belonging to Scheduled Castes, Scheduled Tribes and other categories at the point of time when vacancies are to be determined in the posts of Civil Judge (Junior Division) to be filled in during the year of recruitment, the existing number of vacancies plus anticipated vacancies for the next one year is to be included. The Commission after undertaking the process of examination/interview is obliged to prepare a list of finally selected candidates alongwith a wait-list of 10% of the existing vacancies in order of their proficiency as disclosed by aggregate of marks finally awarded to each candidate in the written examination and the interview. The wait-list is to be prepared categorywise i.e. for Scheduled Castes, Scheduled Tribes and other categories. The wait-list is to be utilized only in case, the candidates in the select list do not join the posts and shall not be utilized for any subsequent vacancies. It also further provides for that if two or more candidates obtained equal marks in the aggregate, the name of the candidate being elder in age shall be placed higher and further that if two or more candidates of equal age obtained equal marks in the aggregate, the name of the candidate, who has obtained higher marks in the written examination, is to be placed higher.
At this juncture, we also proceed to examine the Government Orders dated 31.1.1994 and 15.11.1999, which are as follows;
"mRrj izns'k 'kklu dkfeZd vuqHkkx&4 la[;k&1760&[email protected]&dk&4&93&28&5&1980 y[kuÅ] fnukaad 31 tuojh] 1994 dk;kZy;&Kki v?kksgLrk{kjh dks ;g dgus dk funs'k gqvk gS fd yksd lsok vk;ksx }kjk vk;ksftr izfr;ksfxrkRed ijh{kkvksa rFkk vU; p;uksa ds vk/kkj ij p;fur vH;fFkZ;ksa dks fu;qfDr iznku djus] dk;ZHkkj xzg.k djus] fuf'pr vof/k esa dk;ZHkkj xzg.k u djus ij vH;FkZu fujLr fd;s tkus ,oa izrh{kk lwph ds mi;ksx gsrq le; fu/kZkfjr djus vkfn ds laca/k esa 'kklukns'k fnukad 29-8-92 tkjh fd;k FkkA mDr 'kklukns'k ds izkfo/kkuksa ds vuqlkj dk;Zokgh fd;s tkus esa dfri; O;ogkfjd dfBukb;ka 'kklu ds laKku esa vk jgh gS] v% 'kklu }kjk mDr O;ogkfjd dfBukb;ksa ds fuokj.kkFkZ lE;d~ fopkjksijkUr fuEufyf[kr fu.kZ; fy;s x;s gSa%& ¼1½ foHkkxksa }kjk miyC/k inksa dh lgh x.kuk lqfuf'pr djus ds mijkUr gh vk;ksx dks vf/k;kpu Hkstk tk;A vf/k;kpu Hksts tkus ds mijkUr mf/k;kfpr fjfDr;ksa ds fo:| tks p;fur vH;FkhZ lfEefyr ijh{kk ds vk/kkj ij foHkkx dks miyC?k djk;s tk;saxs] foHkkx dks mUgsa fu;qfDr iznku djuh gh gksxhA flok; mu ekeyksa ds tgak lacaf/kr [email protected]@laxBu iw.kZ :i ls lekIr dj fn;k x;k gks ;k tgak ,dy ij ds fy;s vk;ksftr p;u ds vk/kkj ij p;fur vH;FkhZ vk;ksx us laLrqr fd;k gks ogak vf/k;kfpr in gh lekIr dj fn;k x;k gksA lacaf/kr [email protected]@laxBu dks lekIr fd;s tkus vFkok vf/k;kfor inksa dks gh lekIr fd;s tkus dk fu.kZ; 'kklu }kjk fy;s tkus dh n'kk esa vf/k;kfpr inksa ij p;u dh dk;Zokgh rRdky jksdus gsrq foHkkxksa }kjk vk;ksx ls lEidZ fd;k tk;sxk vkSj ;fn p;fur vH;FkhZ dh laLrqfr foHkkx esa izkIr gks xbZ gks] rRdky vk;ksx dks lwfpr fd;k tk;sxk] rkfd ;fn lfEefyr izfr;ksxh ijh{kk ds vk/kkj ij p;u gqvk gks rks vk;ksx }kjk lacaf/kr vH;FkhZ ds fo"k; esa le; ls fj'kQfyax dh dk;Zokgh dj la'kksf/kr [email protected];ka dh tk ldsA ijUrq tgka U;k;ky; ds vkns'kksa ds vk/kkj ij vf/k;kfpr inksa dks vU;Fkk Hkj fy;k x;k gks ogak vk;ksx }kjk laLrqr vH;fFkZ;ksa dks fu;qfDr iznku fd;s tkus dh ck/;rk u gksxhA ¼2½ lacaf/kr foHkkx vkoaVu izkIr gksus ds rhu ekg ds vUnj fu;qfDr vkns'k djuk lqfuf'pr djsaxs rFkk vH;FkhZ dks dk;ZHkkj xzg.k djus gsrq ,d ekg dk le; fn;k tk;sxk tks vifjgk;Z ifjfLFkfr;ksa esa ,d ekg rd vkSj c<+k;k tk ldrk gSA rRi'pkr vH;FkhZ dk vH;FkZu fujLr djus dk vkns'k djrs gq, vH;FkZu fujLr djus laca/kh vkns'k dh ,d izfr vk;ksx dks vH;FkZu fujLr fd;s x;s vH;[email protected];fFkZ;ksa ds Lfkku ij izrh{kk lwph ls uke 'kh?kz miyC/k djkus ds vuqjks/k ds lkFk iszf"kr dh tk;sxhA mDr vkns'k dh ,d izfr dkfeZd vuqHkkx&4 dks Hkh miyC/k djk;h tk;sxhA ¼3½ LokLF; ijh{k.k rFkk iqfyl osjhfQds'ku lekukUrj :i ls fd;k tk;sxk] ftlls blesa foyEc u gksA ¼4½ izrh{kk lwph izdkf'kr ugha dh tk;sxh rFkk can fyQkQksa esa vk;ksx esa miyC/k jgsxhA vko';drkuqlkj vk;ksx }kjk izrh{kk lwph esa ls vH;fFkZ;ksa ds uke 'kklu dks ;Fkkle; miyC/k djk;s tk;saxsA ¼5½ izrh{kk lwph dsoy ,d o"kZ ds fy, oS/k gksxh pkgs izfr o"kZ gksus okys izfr;ksfxrkRed ijh{kk ls lacaf/kr gks vFkok fdlh p;u fo'ks"k lsA dfri; ekeyksa esa ;g ns[kk x;k gS fd foHkkxksa }kjk fu/kkZfjr vof/k ds vUnj vk;ksx ls izrh{kk lwph ls uke ekax fy, tkus ij Hkh vk;ksx }kjk fu/kkZfjr ,d o"kZ dh vof/k esa izrh{kk lwph ls uke miyC/k ugha djk;s tkrsA vr% mDr leL;k ds lek/kku gsrq ftu ekeyksa esa foHkkx }kjk fu/kkZfjr ,d o"kZ dh vof/k ds vUnj ;fn vk;ksx ls izrh{kk lwph ls uke ekax fy, x;s gksa] fdUrq vk;ksx us fu/kkZfjr vof/k esa uke miyC/k u djk;k gks] ,sls ekeyksa esa izrh{kk lwph ,d o"kZ ds ckn Hkh oS/k gksxhA ¼6½ ;fn fu/kkZfjr vof/k esa izrh{kk lwph dk mi;ksx ugha gksrk gS vFkok fu/kkZfjr vof/k esa foHkkxkssa }kjk vk;ksx ls uke ugha ekax fy;k tkrk gS rks tks Hkh fjfDr;ka jg tk;saaxh og vxys o"kZ ds fy, vxszuhr ekuh tk;saxhA d`i;k mi;qZDrkuqlkj dk;Zokgh izR;sd Lrj ij lqfuf'pr djk;h tk;sA mDr vkns'k rkRdkfyd izHkko ls ykxw gksaxs rFkk bl laca/k esa iwoZ esa lHkh 'kklukns'k fujLr le>s tk;saxsA vkj0ch0Hkk"dj lfpoA mRrj izns'k 'kklu dkfeZd vuqHkkx&4 la[;k&[email protected]@80&[email protected]&1999 y[kuÅ] fnukaad 15 uoEcj] 1999 dk;kZy;&Kki yksd lsok vk;ksx] m0 iz0 }kjk vk;ksftr izfr;ksfxrkRed ijh{kkvksa rFk vU; p;uksa ds vk/kkj ij p;fur vH;fFkZ;ksa dks fu;qfDr iznku djus ,oa izrh{kk lwph ls uke ekaxus lEca/kh iwoZ esa fuxZr 'kklukns'kksa ds vuqikyu esa vkus okyh dfBukb;ksa dks /;ku esa j[krs gq,] 'kklu }kjk ;g fu.kZ; fy;k x;k gS] fd ,dy laoxksZ ds inksa dks NksMdj] vU; leLr lfEefyr lsokvksa ,oa vU; p;uksa esa izrh{kk lwph dk fuekZ.k ugh fd;k tk;sxk vkSj u gh fdlh izdkj dh fj'kQfyax dh dk;Zokgh dh tk;sxhA 2- mi;qZDr ds lEca/k esa iwoZ esa fuxrZ leLr 'kklukns'kksa dks vodzfer djrs gq,] 'kklu }kjk fy;s x;s vU; egRoiw.kZ fu.kZ; fuEuor gS% ¼1½ fdlh p;u o"kZ fos'ks"k esa ?kfVr gksus okyh fjfDr;ksa dh lgh x.kuk lqfuf'pr djus ds mijkUr gh vk;ksx dks vf/k;kpu Hkstk tk;A vf/k;kpu Hksts tkus ds mijkUr ;FkklEHko fjfDr;ksa esa dksbZ ifjorZu u fd;k tk;A ¼2½ p;fur vH;fFkZ;ksa dh laLrqfr;ka izkIr gksus ds mijkUr mUgsa dk;ZHkkj vo'; xzg.k djk;k tk;] flok; mu ekeyksa ds tgka lEcaf/kr foHkkx ;k laLFkk ;k laxBu dks iw.kZ:i ls lekIr dj fn;k x;k gks vFkok fdlh U;k;ky; }kjk dksbZ vU;Fkk vkns'k fn;s x;s gksaA ¼3½ lEcaf/kr foHkkxksa }kjk laLrqfr;ka ;k vkoaVu izkIr gksus ds rhu ekg ds vUnj fu;qfDr vkns'k tkjh djuk lqfuf'pr fd;k tk; rFkk vH;FkhZ dks izFker% dk;ZHkkj xzg.k djus gsrq ,d ekg dk le; iznku fd;k tk;] ftls vifjgk;Z ifjfLFkfr;ksa esa ,d ekg rd vkSj c ¼4½ p;fur vH;fFkZ;ksa ds pfj= lR;kiu ,oa LokLFk ijh{k.k djkus ds mijkUr gh fu;qfDr i= tkjh fd, tk;aA ¼5½ fu/kkZfjr vof/k esa dk;ZHkkj xzg.k u djus okys vH;fFkZ;ksa ds vH;FkZu fujLr djrs gq,] ?kfVr fufDr;ksa dks vkxkeh p;u o"kZ gsrq vxzsuhr dj fn;k tk;A ¼6½ p;u lwph dk mi;ksx mlh p;u o"kZ dh fjfDr;ksa ds fo:) fd;k tk;] ftlds fy, vf/k;kpu Hkstk x;k gks @ p;u fd;k x;k gksA 3- mi;qZDr vkns'k rRdky izHkko ls izHkkoh gksxsaA 4- mi;qZDr vkns'kksa dk izR;sd Lrj ij dMkbZ ls vuqikyu lqfuf'pr fd;k tk;A g0 lq/khj dqekj] lfpoA""
A perusal of the aforesaid Government Orders would show that in order to streamline the process of recruitment pursuant to combined competitive examination conducted by the Commission involving number of services, certain directions were issued from time to time. On the recommendation made by the Commission in respect to the selected candidates, the Government used to forward recommendation to the respective Departments, wherefrom the appointment letters are issued by the competent authority to the selected candidates, whose names are recommended by the Commission after completing all other formalities, like character verification, police verification of antecedents and medical examination etc. However, sometimes candidates offered appointment failed to join service for various reasons and the vacancy remain unfilled. The concerned department informs the Government about non-joining of such selected candidates, who were issued letters offering appointment and thereafter only the Government used to seek further recommendation of the Commission from the waiting list, if any. Some times the entire process used to take lot of time and in the meantime the next recruitment process used to start causing a practical difficulty in making the said recruitment final. To mitigate such a situation, the State Government issued Government Order 1994 communicating its decision namely: (1) where the recommendation has been received from the Commission, the concerned department has to issue letter of appointment except where the department itself has been abolished or where the selection has been made by the Commission for single post or notified post and it has been abolished. (2) Such appointment letters shall be issued by the concerned department after receiving allotment within three months thereof and the candidates shall be offered one month's time to join extendable by one month for unavoidable circumstances. (3) Thereafter, the candidature, in case of non-joining, shall be cancelled and the copy of such order shall be sent to the Commission with the request to send names from the waiting list. (4) The waiting list shall not be published by the Commission but shall be kept by it in a sealed cover and required names shall be sent to the Government as and when requisitioned from it. (5) Such waiting list shall be valid for one year only where the recruitment process is to be held on annual basis or if it a special selection. (6) However, in case where the requisition has been sent to the Commission against unfilled vacancies requesting to send additional names from waiting list within a period of one year, in such case, the life of wait list shall be treated to have been extended beyond one year, inasmuch as, the Commission may send recommendation even after expiry of one year. (7) Where no information has been received from the concerned department requisitioning any candidate from the wait list, the unfilled vacancies shall be carried forward and be filled in the next recruitment. Subsequently, a query was made as to whether a vacancy occurred during the validity of life time of the wait list due to resignation of a candidate who was appointed pursuant to the recommendation made by the Commission, would such a vacancy be filled in from the waiting list. By a Government Order No. 28/5/80-Ka-4-1997 dated 23.12.1997 the Government conveyed its decision that once a candidate, who has been offered appointment joins, the vacancy in the concerned recruitment comes to an end and if such a person subsequently resign, even within one year from the date of preparation of the select list, such vacancy being a fresh one occurring in a different recruitment year, shall not be filed in from the wait list.
On the parameters of the Rules in question and in the light of the Government Orders the claim of petitioner is being adverted to. Under The Uttar Pradesh Judicial Service (Second Amendment) Rules, 2012, the Commission is obliged to prepare a final list of selected candidates alongwith wait-list of 10% of existing vacancies in order of their proficiency as disclosed by aggregate of marks finally awarded to each candidate in the written examination and the interview. The Commission, in the present case, has not at all proceeded to prepare the wait-list in consonance with the Rules in question, whereas, requisition has been sent of 125 posts for U.P. Civil Judge (Junior Division) for being appointed as Civil Judge (Junior Division) under U.P. Nyayik Sewa, in this background, after the final selection has been made, then Commission ought to have prepared final list of 125 selected candidates alongwith wait-list of 10% of existing vacancies, in order of their proficiency as disclosed by aggregate of marks finally awarded to each candidate in the written examination and the interview. Law on the subject is clear that wait-listed candidates have no vested right to be appointed except when a selected candidate does not join while the select-list is still operative. See Sri Kant Tripathi Vs. State of U.P. & Others, 2001 (10) SCC 337. A waiting list prepared by the Commission is to be operative only for the contingency that if any of the selected candidate does not join then the persons from the waiting list could be pushed up and be appointed against the vacancies requisitioned and against which recommendation has already been made by the Commission. The U.P. Judicial Service Rules, 2001 has a peculiar characteristic, inasmuch as, Sub-rule (2) of Rule 21 clearly proceeds to make a mandate that the select list prepared under Sub-rule (3) of Rule 20 shall lapse after all the vacancies advertised or varied after due notification, are filled up, in view of this, the life span of select list has been provided for by the Rules under Sub-rule (2) of Rule 21 and the said select list prepared under Sub-rule (3) of Rule 20 will lapse after all the vacancies advertised or varied after due notification, are filled up and not at all beyond the same. The life of the select list stands determined by the Rules and, in view of this, once the life span of select list stands determined by the Rules, then any executive instructions or policy decision taken by the Commission in the shape of Government Orders dated 31.1.1994 and 15.11.1999 would be of no avail.
These Government Orders in question would not at all be applicable in reference of the life span of the select list in question. Once the Rules in question are specific and the law on the subject is clear that in case any executive instructions are running counter to the statutory Rules, then executive instructions should give way to the statutory Rules in question. Apex Court in the case of Ram Ganesh Triapthi Vs. State of U.P. & Others, AIR 1997 SC 1446, has taken the view that any Government Order contrary to rules cannot be enforced rather requires to be ignored. The factual situation, that is emerging in the present case, is that life span of select list will continue to remain in operation till all the vacancies advertised or varied after due notification, are filled up and here accepted position is that three vacancies still remain unfilled up as candidates, who have been placed at serial nos. 17, 26 and 52 have not joined the posts in question and as far as candidates at serial nos. 17 and 52 are concerned, their candidature in question has already been cancelled by the State Government and even in reference of candidate placed at serial no. 26, decision is awaited. Even this much fact has been accepted before us that fresh requisition has been sent by the State Government and pursuant to the same fresh advertisement has been issued, but the vacancies referred to in the judgment have been left out and have not been included. Once such is the factual situation and such is the language of the Rules in question, then inevitable conclusion is that in reference of selection and appointment to be made under the U.P. Judicial Service Rules, 2001, as amended up to the date, as against the recommendations, that have been so made, the Commission is under statutory obligation not only to make recommendations of total number of vacancies, that have been requisitioned, but to also prepare 10% of the additional wait-list that would be utilized in the contingency when recommended candidates fail to join their respective posts.
Consequently, in the facts of the case, keeping in view the spirit of the Rules in question, as accepted position is that candidates placed at serial nos. 17, 26 and 52 have not joined their respective posts and posts are still lying vacant and in reference of two candidates already decision has been taken by the State Government to cancel their candidature. We are conscious of this fact that even in the case of select-list candidates, what to say of a wait-listed candidate the law is well settled that such a candidate has no indefisible right to claim appointment merely for the reason that his name is included in the select-list as the State is under no legal duty to fill up all or any of the vacancy and it can always be left vacant or unfilled for valid reasons. State Government, in the present case, in the affidavit filed before us has not at all come up with the case, that State Government intends to leave the vacancies requisitioned/advertised vacant. The Commission has also submitted in affidavit filed before this Court that the moment requisition is received from the State Government, needful would be done. Accordingly, in the peculiar characteristic of the case and the Rules holding the field, we proceed to pass an order directing the State Government to forthwith forward the requisite requisition to the Commission and the Commission, thereafter, in its turn, would make necessary recommendations in favour of candidates, who stand in merit, subject to fulfilment of other terms and conditions. The entire exercise be undertaken within next three months from the date of receipt of certified copy of this order.
Writ petition is allowed, accordingly.
No order as to the costs.