R.B.MISRA, J. - (1.) HEARD Sri Ashok Khare, learned senior advocate with Sri S. K. Gupta, advocate as well as standing counsel for the State and Sri B. N. Singh, advocate of Public Service Commission.
(2.) IN the Writ Petition No. 38335 of 1999 the prayer has been madedirecting the U. P. Public Service Commission, Allahabad (in short 'Commission' hereinafter) to declare the waiting list of the year 1987 in respect of Upper Division Assistant and Lower Division Assistant and send the name of the petitioner to the State Government of Uttar Pradesh by issuing a writ of mandamus commanding the State Government of Uttar Pradesh to demand the name from the waiting list of the examination of the year 1987 of Upper Division Assistant and Lower Division Assistant. In the Writ Petition No. 8146 of 1994, Prem Shanker Rai v. State of U. P., a writ of mandamus has been prayed directing the respondents to consider the appointment of the writ -petitioner to the post of Upper Division Assistant for which he had already been declared selected and also placed in the waiting list in the competitive examination conducted by the 'Commission' for Upper Division Assistant and Lower Division Assistant to the examination of 1987 (which was held in the year 1989).
(3.) THE brief facts necessary for adjudication of the present case are that the petitioners in the two writ petitions had appeared in recruitment and selection conducted by the 'Commission' in pursuance to advertisement No. A -4/E -1987 -1988 for making recruitment on the post of Upper Division Assistant and Lower Division Assistant in the Civil Secretariat of the State of U. P. The total number of posts of Upper Division Assistant advertised was 167 out of which only 152 recommended candidates join. As contended by the petitioner in spite of several vacancies existing in Upper Division Assistants the petitioners were not allowed to join. The candidates who secured 312 out of 500 in the examination were selected for the post of Upper Division Assistant in the general category and those candidates among backward quota who secured 309 were selected in the Upper Division Assistant and those who have secured less marks were to be in waiting list of Upper Division Assistant. Sri Brijesh Kumar petitioner No. 1 being a general candidate by virtue of securing 312 marks and petitioner No. 2 being a backward class by virtue of securing 308 marks were only given appointment as Lower Division Assistant ignoring their claims for appointment to the post of Upper Division Assistant. The grievance of the petitioners is against the non -grant of appointment to the petitioners against such remaining unfilled vacancies. The two petitioners of Writ Petition Nos. 38335 of 1999 and 8146 of 1994 were selected in the same selection recommended and granted appointment on the post of Lower Division Assistant on which post they are working. The order of State Government dated 11.3.1997 (Annexure -6 to the Writ Petition No. 38335 of 1999) as also the counter -affidavit of Sri Amar Sen Singh filed on behalf of the State Government in Writ Petition No. 38335 of 1999 admits the factual position that vacancies of Upper Division Assistant covered by the above mentioned advertisement remained unfilled on account of several of the selected candidates having failed to join in pursuance to the order of appointment issued in their favour. The counter -affidavit also does not dispute that vacancies of Upper Division Assistant are not available as on date.;