- (1.) SUDHIR Agarwal, J. Sri S. M. A. Kazmi, learned Senior Advocate, assisted by Sri S. P. Pandey, Advocate, on behalf of applicant- respondent No. 1 (hereinafter referred to as the 'petitioner'), Sri Yogendra Kumar Yadav, learned Standing Counsel and Sri M. A. Qadeer, Advocate, on behalf of the appellant and respondent No. 2, i. e. , U. P. Public Service Commission (hereinafter referred to as the "commission") have been heard at length.
(2.) THE petitioner has filed this application seeking recall of our judgment dated 30-10-2007 whereby the Special Appeal No. 99 of 1999 was allowed and the judgment of Hon'ble Single Judge was reversed as also the writ petition of the petitioner was dismissed. It is submitted by the learned Counsel for the petitioner that he was en gaged in another matter before another Court and, therefore, could not appear and make submission when the intra Court Appeal was heard and decided by this Court on 30-10-2007 and thus, he has requested that he may be given an oppor tunity to address the Court on merits of the issue since several judgments and Government Orders, which are applicable and relevant to the question and issue, could not have been placed before the Court, which would have impact on the ultimate result of the appeal. In order to satisfy ourselves as to whether the judg ment dated 30. 10. 2007 passed by us needs to be recalled on merits, we permit ted the learned Counsel for the petitioner to place those Government Orders and the judgments, of which he has made an averment in para-10 of the affidavit filed in support of the recall application that the same are relevant and applicable in the facts and circumstances of the present case, which allegedly have not been Considered by this Court, whereupon Sri Kazmi, at the outset made a statement at the bar that law is well settled that a wait listed candidate has no indefeasible right to get appointment and, therefore, it is difficult to submit that the judgment dated 30-10-2007 is not correct so far as the question of law considered and decided therein, is concerned. He, however, submits that since there are some developments during the pendency of the appeal, which needs to be considered and requested that this Court may exercise its extraordinary discretionary jurisdiction to look into those subsequent events so that even if the appeal, on the question of law, has rightly been allowed, as a consequence thereof, the petitioner may not loose his job, which he has got during her pendency of the Appeal. He submitted that it is for this reason, he is pursuing the discretionary and equitable jurisdiction of this Court. He also cited some authorities on the question that once a person has been appointed and continued for a long time, even if on the question of law the matter is decided otherwise, the appointment of such a person need not be an nulled and should be protected. In support of his submissions that the Court can mould relief, he has placed reliance on the Apex Court's decision in 1986 (2) SCC 679, Comptroller and Auditor General of India and another v. K. S. Jagannathan and another and 2002 (2) SCC 475, Food Corporation of India v. S. N. Nagarkar.
(3.) IN view of the statement of the learned Senior Advocate appearing for the petitioner that he is not in a position to assail the judgment dated 30-10-2007 on merits, and, legal issue decided therein is in accordance with the binding authori ties of the Apex Court on the said issue, in our view, this application needed no further consideration and is liable to be rejected at the threshold. However, since the learned Counsel for the petitioner has made submissions at great length citing certain authorities of the Apex Court, requesting this Court to show judicial discretion and benevolence to the petitioner so that as a consequence of the judgment dated 30-10-2007, he may not loose his appointment, we propose to consider sustainability of the aforesaid submission also in the facts and circum stances as well as the legal position on this aspect of the matter. Since our judgment dated 30-10-2007 has decided the question of law argued before us and, therefore, the factual background of the matter was not detailed therein more particularly for the reason that the same was also stated by the Hon'ble Single Judge in the judgment dated 9-4-1998 which was reversed by us in the intra Court appeal but in order to appreciate the submissions of the learned Counsel for the petitioner, we find it appropriate to place the facts straight in this order also.;