- (1.) J. C. Gupta, J. By means of this writ petition under Article 226 of the Constitu tion of India, the petitioner has prayed for the following reliefs: (1) to issue a writ in the nature of certiorari quashing the order dated 19. 7. 95 passed by the respondent No. 3 (Annexure 8 to the writ peti tion); (2) to issue a writ in the nature of mandamus commanding the respondents to issue appoint ment order to the petitioner for the post of Assis tant Boring Technician (3) to issue a writ in the nature of mandamus commanding the respondents to give the petitioner all the consequential benefits including the arrears of salary from the time the other selected persons from the select list have been issued appointment orders, including the notional seniority.
(2.) ACCORDING to the petitioner's case, in the year 1990 a Selection Board was con stituted to select the candidates for the ap pointment on the post of Assistant Boring Technicians. Interview was held on 7. 12. 90 and on the same day a select list was publish ed. The list of General and Backward Class candidates comprised of six names while that of Scheduled Caste candidates of three names and therein the petitioner's name stood placed at the bottom at serial No. 3. It is alleged that subsequent to the publication of the said list, six persons, five from the list of General and Backward Class and one candidate whose name figured at serial No. 1 in the list of Scheduled Caste, were given appointments at different places in Moradabad Zone in the year 1991. Sub sequently, Kuldeep whose name figured at serial No. 6 in the General and Backward Class candidates, was also given appoint ment on 28. 3. 93. The petitioner thereafter made a representation on 5. 6. 93, which was duly received in the office of the Superin tending Engineer on 7. 6. 93. Copies of the said representation were also sent to respondent No. 1, the Secretary, Minor Ir rigation, Lucknow. The Superintending En gineer, respondent No. 2 through letter dated 25. 8. 93 directed the Executive En gineer, respondent No. 3 to consider the matter of the petitioner. Since no action was taken in the matter, the petitioner filed Writ Petition No. 27493 of 1994 in this Court, which was finally disposed of by the order dated 18. 4. 95. A direction was issued to the respondent No. 3 to decide the repre sentation of the petitioner dated 5. 6. 93 within a specified period. In pursuance of the said order, the respondent No. 3 passed the impugned order dated 19. 7. 95. The petitioner has challenged the said order as being arbitrary, unjust, illegal and violative of Articles 14, 16, 21, 39 and 300-A of the Constitution of India. It is alleged that in the matter of appointment the petitioner has been discriminated, as other persons from the same Select List have been given ap pointments, but the claim of the petitioner has been ignored. In the counter affidavit filed on be half of the respondents, it is not disputed that a Select List was prepared as alleged by the" petitioner. It is also not disputed that from the said List six persons were initially appointed, five from the list of General and Backward Class and one from the list of Scheduled Caste. The appointment of Kul deep, whose name figured at serial No. 6 in the list of General and Backward Class can didates, has also not been disputed. How ever, it is stated that before the petitioner could be given appointment, Uttar Pradesh Laghu Sinchai Vibhag Boring Pravidhik Sewa Niyamawali, 1993 (hereinafter referred to as the Rules) came into force with effect from 19. 10. 93 and after the en forcement of the said Rules, the power to make appointment on the post of Assistant Boring Technicians vests only in the U. P. Subordinate Services Selection Commis sion and no appointment can be made by any other authority. Since there is no vacant post of the Assistant Boring Technician in the division, it is not possible to appoint the petitioner as Assistant Boring Technician. During the course of arguments, the learned counsel for the petitioner con tended before me that the Rules of 1993 could not be given effect to retrospectively and since the petitioner's name stood in the Select List prepared before the commence ment of the said Rules, he was entitled to get appointment on ihe post of Assistant Boring Technician as the post was lying vacant in the said cadre before the commen cement of the Rules.
(3.) RULES of 1993 came into force with effect from 19. 10. 93 and there is no dispute about that. Under the said RULES the ap pointment on the post of Assistant Boring Technician can be made only in accordance with the provisions of the said RULES and power to make appointment vests in the Commission constituted under the provisions of the said RULES. Admittedly the petitioner's name figured in the last at serial No. 3 in the list of Scheduled Caste can didates and all the persons who were given appointments were placed higher in rank then the petitioner in the Select List. It is not the case of the petitioner that persons lower in rank than him have been preferred over the petitioner and his claim was ig nored, while making appointments from the said Select List. The mere fact that the petitioner's name figured in the Select List that by itself would not confer any right on him to be appointed on a particular post. It is always open for the Government to fill up any vacancy or to keep it vacant or in abeyance and no persons can claim as of right that he should be given appointment and the post be filled up. ft is well settled law that the inclusion of candidates' name in the merit list does not confer any right to be appointed. (See Shankardan Dash v. Union of India, AIR 1991 SC 1612; JT 1996 (1) SC 258 ). Assuming that any post of Assistant Boring Technician was lying vacant at the time of enforcement of the Rules, the same can be filled only in accordance with the provisions of the Rules and not otherwise after the commencement of the Rules. It is settled law that once the statutory Rules have been made, appointments have to be made only in accordance with the Rules and not otherwise. [jammu and Kashmir Public Service Commission v. Dr. Narinder Mohan and others, AIR 1994 SC 1800.;