- (1.) The petitioners had appeared in U.P. Judicial Services Civil Judge (Junior Division), Preliminary Examination, 2003 conducted by the U.P. Public Service Commission (hereinafter referred to as the "Commission") pursuant to Advertisement No. A-2/E-1/2003 dated 22-28.11.2003. The preliminary examination was held in March, 2004 wherein the petitioners qualified and thereafter they appeared in the main examination held for recruitment to the post of Civil Judge (Junior Division). The final result was declared on 02.05.2005 wherein the petitioners were declared successful. However, there was some controversy with respect to the cut off date for the purpose of age which came up for consideration before this Court in Dinesh Pratap Singh and Ors. v. State of U.P. and Ors. 2005(4) ESC 2645 (DB) wherein this Court held that the candidates who were within the upper age limit on 01.07.2003 would be eligible to appear in the said recruitment but those who has crossed upper age limit on 30.06.2003/01.07.2003 will not be eligible. The Apex Court in Malik Mazhar Sultan v. U.P.P.S.C. , however, took a view that the candidates who were eligible on 01.07.2002 in respect to upper age limit would be entitled to appear on the said selection but those who were ineligible on the said date would not have been considered. In view of the Apex Court decision in Malik Mazhar Sultan (Supra) the Commission revised the final result and published in the daily news paper Amar Ujala wherein the petitioners could not find place since others, who were eligible on account of cut off date as held by Apex Court, stood selected.
(2.) The grievance of the petitioners is that they have suffered a mental shock on account of exclusion of their names from merit list. However, they have come to know that there are some vacancies which are lying unfilled due to resignation of some candidates who joined earlier or due to non joining of certain candidates, therefore, a mandamus can be issued to the respondents to send further names from the merit list so that the petitioners may be considered for appointment on the post of Civil Judge (Junior Division) against the said vacancies. Reliance is also placed to certain orders passed in Civil Misc. Writ Petition No. 25664 of 2006 Krishna Kumar and Ors. v. State of U.P. and Ors. decided on 04.09.2006 (Annexure-5 to the writ petition) and in Civil Misc. Writ Petition No. 51386 of 2006 Sunaina Tripathi v. State of U.P. and Ors. decided on 15.09.2006 wherein this Court has issued similar directions to the respondents.
(3.) On the contrary learned Standing Counsel vehemently opposed the writ petition and submitted that the petitioners having not been selected in the final revised merit list, have no right to seek a writ of mandamus commanding the respondents to consider them for appointment on the post of Civil Judge (Junior Division) against the vacancies, if any, remain unfilled due to resignation of candidates who have already joined or due to non joining of certain candidates. He submitted that at the best the petitioners can be said to find a place in the wait list and since wait list candidate has no right to seek a writ of mandamus for his appointment, the present writ petition is not maintainable at the instance of the petitioners. Reliance is placed on a Division Bench decision of this Court in Special Appeal No. 130 of 2003 U.P. Public Service Commission, Allahabad and Anr. v. State of U.P. and Anr. decided on 08.03.2007.;