N.L. Ganguly, J. - (1.) THE Petitioner appeared in the regular competitive examination in the year 1976 for Provincial Civil services and Allied services the result was published in the December, 1977. The Petitioner states that he had obtained the qualifying marks and was given total 455 marks in aggregate. The allegation is that there were 11 vacancies in the Provincial Civil Services, three vacancies in the Provincial Police Services and 7 vacancies in the allied services in the State to be filled in by the members of the Scheduled Caste This allegation contained in para 3 of the writ petition and are undisputed in the counter affidavit filed by the Public Service Commission Admittedly, the Petitioner belongs to Scheduled Caste. It is stated that another candidate namely Sri Harish Chandra who also belonged to the Scheduled Caste was the last candidate given 455 marks in the competitive examination.
(2.) THE Petitioner grievances is that Sri Harish Chandra who had obtained equal marks as that of the Petitioner was appointed in the allied service of of the P.C.S. He is working. The Petitioner submits that he has been discriminated. He being scheduled Caste having equal marks should have been given appointment at least in Allied Service. The prayer in the writ petition is for issuing a writ of mandamus directing the State of U.P. to provide an appointment in the Provincial Civil Service Cadre held in the year 1976, besides other usual reliefs. Before coming to this Court, the Petitioner had made representation to the Chief Minister, Chief Secretary, Appointment, Secretary and Scheduled Caste Commissioner in this regard on 27th October 1978. It is also stated that after the representation was sent by the Petitioner, a subsequent development was there namely one Radhey Shyam of Scheduled Caste submitted his refusal on 11 -1 -79 to join the post of Dy. Superintendent of Police on which he was proposed to be appointed as a result of the examination. Since refusal by Radhey Shyam, one, vacancy allotted to the year 1976 was taken and Harish Chandra who had equal marks to the Petitioner was appointed in place of Radhey Shyam. The result was that there was still one vacancy available in Allied service.
(3.) THE Government vide letter No. 4 -SC/II -8 -302 -64 dated February 18, 1964 notified by G.O. to all the Head of Departments and Principal, Head of the office in the State lay that if and when vacancy reserved for Scheduled Caste fell vacant as a result of dropping out of Scheduled Caste candidate, the same should be filled by a member of such Caste only. On the basis of this consideration, the Petitioner was entitled to be appointed against the vacancies which had fallen vacant in the cadre as a result of refusal by Radhey Shyam to join the post and cadre. A copy of the said letter of the Government is annexed by the Petitioners as Annexure 4. On the subsequent representation of the Petitioner, the appointment Secretary of the Government wrote a letter to the Public Service Commission on 11 -12 -79 that the Petitioner should be considered for appointment against the vacancy arising out after refusal of Radhey Shyam who joined the aforesaid eider. The Public Service Commission sent a reply to the State Government. The G.O. dated 30 -1 -79 issued by Karmik Anubhag is already annexed as Annexure 1 to the writ petition The Public Service Commission categorically stated in para 6 of the counter affidavit that for the appointment to the post in the Allied group of service, so far the question of recommending Harish Chandra in preference to the Petitioner is concerned, it was on competitive merit/seniority of the candidate getting equal marks is determined by the Public Service Commission on certain principles and on the basis of those principles, the petitioner's position was below that of Harish Chandra, who was recommended for the appointment to the post of lower group. The principles laid down by the Public Service Commission are quoted as under: (i) Candidate getting higher aggregate of marks in the Compulsory subjects of the written examination plus interview will be placed higher in merit. (ii) When the aggregate of compulsory subjects in the written examination plus the interview is equal, the one getting higher marks in the interview will be placed higher in the merit. (iii) When the marks obtained by two candidates in compulsory subjects are equal and the marks obtained in the interview are also equal ,the candidates higher in age will be placed higher in the merit;