- (1.) The petitioner has filed this writ petition seeking a direction in the nature of a writ of mandamus directing the respondent no.4 Public Service Commission, Uttar Pradesh, Allahabad, (hereinafter referred to as Commission) to send" the name of the petitioner from the waiting list of U.P. State Universities (Centralised) Services Assistant Registrar Examination year 1996, in pursuance of requisition sent by the State Government vide its letter dated 26.7.2001 and further a writ in the nature of mandamus was sought for directing respondents no.2 and 3 to appoint the petitioner forthwith on the post of Assistant Registrar on the vacant post of aforesaid 1996 Examination arising out of resignation of 2 candidates of general category within a period of one year after their joining. The petitioner has also challenged the letter dated 20.8.2001 contained in Annexure 9 of the writ petition whereby the Secretary of the Commission has communicated to the Secretary Higher Education, Government of Uttar Pradesh in pursuance of his letter dated 26.7.2001 stating three in that in view of para 5 of the government order dated 31.1.1994, the period of waiting list has already expired and in view of para 3 of the government order dated 23.12.1997 the vacancy arising out of resignation of selected candidates after joining even during the life time of waiting list cannot be filled from the waiting list.
(2.) The brief facts having material bearing to the controversy involved in the case are that on 5.8.1996 an advertisement no.A-l/E-1 96-97 was published by the Commission in daily newspapers for holding selection against 11 vacancies on the post of Assistant Registrar in U.P. State Universities (Centralised) Services. Out of the aforesaid 11 vacancies, 6 vacancies were earmarked as unreserved for candidates of general category, 3 vacancies were reserved for other backward class candidates and 2 vacancies were reserved for the candidates belonging to S.C. & S.T. Subsequently thereafter aforesaid vacancies were increased from 11 to 19. The petitioner being fully eligible and qualified, applied for the selection and pursuance thereof, he was permitted to appear in written examination. The petitioner was declared successful in written examination and was called for interview which was held on 29.9.1997. After the interview, the result of aforesaid selection was declared on 30.9.1997 in which total 19 candidates were declared successful. The name of the petitioner did not find place in the main select list. But he was placed at serial no.2 in the waiting list of the candidates belonging to the general category. The names of selected candidates were commended and forwarded by the Commission to the State Government for appointment and the letters of appointment have been issued to the selected candidates by the State Government on 30.12.1997. The petitioner came to know that 2 candidates of general category, namely Kamlesh Kumar Shukla and Anand Kumar had resigned from service within one year of their selection and appointment on 5.9.1998 and 2.12.1998 respectively as a result of which 2 vacancies on the said post have occurred. Since the aforesaid vacancies arose out of resignations of candidates belonging to the general category, the petitioner, being a general category candidate at serial no.2 in the waiting list, was entitled to be recommended by the Commission and the State Government was under legal obligation to ask the Commission to send the name of the petitioner for appointment and further to issue letter of appointment to the petitioner on the basis of his placement at serial no.2 in the waiting list amongst the candidates belonging to the general category. The petitioner moved several representations to the authorities concerned for his appointment against one of the aforesaid two vacancies. It is also alleged that the person placed at serial no.1 of the waiting list of general category, namely Sri Rajiv Kumar did not make any effort for appointment on the aforesaid post. In fact it appears that he is not interested in appointment against the said vacancies. It appears that in pursuance of such representations made by the" petitioner, the Secretary Government of Uttar Pradesh wrote a letter to the Commission on 26.7.2001 to send the names from the aforesaid wait listed candidates which in turn was replied by the Secretary of the Commission vide his letter dated 20.8.2001 contained in Annexure-9 to the writ petition whereby the request made by the government has been turned down by the Commission on the grounds stated herein above, hence this petition.
(3.) A detailed counter affidavit has been filed on behalf, of the Commission, respondent no.4 whereby the stand taken by it in the impugned order/letter dated 20.8.2001 had been reiterated and supported by placing justification for not recommending the name of the petitioner for appointment against the aforesaid vacancy. For ready reference the averments made in paragraphs 4 and 11 of the counter affidavit are reproduced below: "That the petitioner Sri Arun Kumar Singh, a general category candidate having Roll No. 404 appeared at the U.P. State Universities (Centralised) Services Assistant Registrar Examination, 1996 but after interview he was not finally declared selected. Subsequently the recommendation of the finally selected candidates for the 19 posts of Assistant Registrar was sent to the govt. vide letter No. 101/2/Misc./E-l/94-95 dated 20th November, 1997 for further action. Then after the expiry of about four years since the aforesaid recommendation was sent, the Commission received the proposal from the govt. vide letter No. Mu. Man. /645/70-1-2001-35 (6)/1999 dated 28 July 2001 to send recommendation from the waiting list for three vacant posts of Assistant Registrar which fell vacant due to non-joining of one of the S.C. candidate as well as the resignation tendered by two candidates from the general category (General merit list). Through this letter the Commission was intimated that one Sri Mool Chandra, an S.C. category candidate who was placed at serial" No. 17 of the recommendation, did not join his post, hence his candidature was rejected. In the same way two candidates who were placed at serial no.l a& 2 Sri Anand Kumar (O.B.C.) and Sri Kamlesh Kumar (Gen.) who resigned from their post after joining, resulting 3 posts of Assistant Registrar vacant for which recommendation was sought by the govt. mentioning the name of the petitioner to be sent. Here it is noteworthy to state that the name from the waiting list for any examination is recommended to the govt. in accordance with the provisions provided in the State govt.'s Office Memo No. 1760-Aa/47-Ka-4-9328- 5-1980,dated 31 January, 1994 in which it is very clearly mentioned in sub para 5 & 6 that the waiting list would be valid only for one year and if the waiting list is not utilised within the stipulated period of one year, the vacancy would be forwarded for the next selection year.. Apart from this the sub para 3 of the Office Memo No. 28-5-60-Ka-4-l997 dated 23 December, 1997 also maintains that the name from the waiting list cannot be recommended for the post falling vacant on account of the resignation tendered by a candidate even if the waiting list is being utilised within the stipulated period of one year. Thus the said proposal of the govt. dated 28 July, 2001 for sending recommendation from the waiting list was found to be "time barred" and against the provisions provided in the aforesaid G.O. Thus the proposal was turned down, and the govt. was informed about this vide office letter No. 74(i)/ 08/C-1/97-98 dated 27 October 2001. Now the petitioner wants the Commission to act in accordance with the proposal sent by the government and send his name from the waiting list. Hence he has filed the present writ petition which is devoid of merit and is liable to be rejected. (11) That in reply to the contents of paras 18 and 19 of the writ petition, it is submitted that the name from the waiting list of any examination is recommended to the govt. in accordance with the provisions provided in the state govt. office memo No. 1760-A/347-Ka-4-93-28-5-1980 dated 31 January, 1994 in which it is very clearly mentioned in sub-para 5 and 6 that the waiting list would be valid only for one year and if the waiting list is not utilised within the stipulated period of one year, the vacancy would be carried forwarded for the next selection year. Thus in the light of the provision provided in the said G.O. the proposal of the Govt. to recommend substitutes name from the waiting list is "time barred" proposal because it was sent by the govt. after the gap of about four years since the recommendation for the said examination was sent to the govt. by the commission. Apart from this the sub-para 3 of the office memo No. 28/5/80-Ka-4-1997, dated 23 December, 1997 also provides that the name from the waiting list cannot be recommended for the post falling Vacant on account of the resignation tendered by a candidate even if the waiting list is being utilised within the stipulated period of one year. Thus it is quite obvious that the proposal of the govt. to send substitutes name from the waiting list is not at all in keeping with the rules and provisions provided in the aforesaid G.O. thus untenable. Hence the proposal was turned down and the govt. was informed about this vide letter No. 74(l)/08/C-l/97-98 dated 27 Oct. 2001. A true cony of the aforesaid G.O. dated 31 January, 1994, Office memo dated 23 Dec. 1997 are being annexed here with as "Annexure C.A-1 & Annexure C.A.-II" to this counter affidavit.";