- (1.) PRAKASH Krishna, J. A wait listed candidate of a competitive examination conducted by the U. P. Subordinate Service Commission, for the post of Assistant Consolidation Officer, can as a matter of right claim appointment and compel the State Government to appoint him on the ground that some of the posts according to him are lying vacant, is the question mooted in the present writ petition. The ancillary question is whether the controversy involved in the present case is squarely covered by a decision of this Court in writ petition No. 24758 of 2000, Lal Singh v. State of U. P. and Anr. , decided on 24th of January, 2005.
(2.) THE facts of the case are not much in dispute. THE petitioner, in pursuance of an advertisement issued for the posts of Assistant Consolidation Officer and other posts appeared in the examination held by U. P. Subordinate Service Commission (hereinafter called as Commission ). A combined examination was held for different posts such as Deputy Jailor, Naib-Tehsildar, Assistant Consolidation Officer etc. In the result declared on 19th of March, 1997 the name of the petitioner was not included in the select list, but according to him he was a wait listed candidate. By means of the present writ petition a writ in the nature of mandamus directing the respondents No. 2 and 3 to call for the names of the candidates including the petitioner selected in accordance with the merit for the post of Assistant Consolidation Officer from U. P. Public Service Commission, Lucknow after 140 general category candidates as against vacant posts from the same selection and further direct the respondent No. 1 to send the name from the merit list of the next candidates has been claimed. Certain other reliefs have also been claimed in the petition. The petitioner is a general category candidate and claims that a select list of 282 candidates for the posts of Assistant Consolidation Officer was issued. Out of them 140 names were shown against the general category candidates. Only 126 candidates joined the post. According to the petitioner it was incumbent on the State of U. P. , respondent No. 2 and the Consolidation Commissioner, respondent No. 3, to have asked the Commission to send 14 candidates in accordance with the merit and their failure gives right to the petitioner to claim necessary direction by way of writ of mandamus for the same. In para 13 of the petition, the further averment is that the name of the petitioner is "at serial No. 8" in the merit list after 140 selected candidates in general category, whose names were declared by the Commission. His case is that if 14 further names from the general category candidates are called, the petitioner's name is bound to be forwarded by the Commission for the pest of Assistant Consolidate Officer. In para 16 of the writ petition it has been stated that about 30 persons from the list of general category candidates have not joined the post of Assistant Consolidation Officer and after the selection in question no further selection has been made by the Commission for filling the vacant posts of Assistant Consolidation Officer and several posts pertaining to the year 1995 are still vacant which are required to be filled by the Commission from the candidates next in the merit list. In the counter-affidavit filed on behalf of the respondent No. 2 it has been stated that power to declare the result of the examination which vested in the erstwhile Commission cannot be exercised now by the State Government in view of the fact that the U. P. Subordinate Service Commission which was constituted in 1998 under Act No. 7 of 1988 has been dissolved by the U. P. Subordinate Service Commission (Repeal Act No. 5 of 1998) as notified and Special Secretary Karmik Vibhag U. P. Shasan has been appointed as Administrator of the dissolved Commission. It has been further stated that the Commission had recommended to the Consolidation Commissioner, U. P. the names of 140 selected candidates for appointment on the post of Assistant Consolidation Officer and the Consolidation Commissioner vide his letter dated 21st of November, 1998 had only informed about non-joining of 42 candidates of different categories but he did not call for fresh names from the waiting list. Therefore, the defence of the respondents is that in absence of any requisition by the Consolidation Commissioner for fresh names, the names of other candidates beyond the 140 names already sent of general category was not sent by them and as such the petitioner has no case against them.
(3.) ALONG with the supplementary affidavit certain documents have been annexed therein and attempt has been made to show that the last candidate who was selected had obtained 682 marks and the petitioner, a wait listed candidate has also obtained same marks i. e. , 682, besides copies of the judgments delivered in Writ Petition No. 24758 of 2000, Lal Singh v. State of U. P. and in Writ Petition No. 23037 of 1999, Basu Deo and Anr. v. State of U. P. and Anr. , dated 18th of February, 2000. Shri Anil Bhushan, the learned Counsel for the petitioner strenuously submitted that the petitioner has obtained 682 marks and Lal Singh who is the last selected candidate had also obtained the same marks. It is not in dispute, according to him, that the names of 140 candidates of general category were included in the select list and out of them only 126 candidates gave their joining. The further case is that some other persons have also not reported on the posts and therefore, according to the petitioner the posts are lying vacant and necessary direction be issued directing the respondents to issue appointment letter to the petitioner as per merit list.;