Rajnish Kumar, J. - (1.) Heard Sri Sharad Kumar Srivastava, learned counsel for the petitioners and learned Standing Counsel.
(2.) The petitioners have approached to this Court challenging the order dated 06.06.2013 passed by the Principal Secretary, Medical Education Department, Government of U.P. with a further prayer to the opposite parties to treat the petitioners to have been appointed from the date persons having lower merit to them, as per merit list, have been appointed with all consequential benefits including seniority, commutation, full pension and other service benefits arising therefrom as has been granted to persons referred above.
(3.) The facts, in brief, for adjudication of the present controversy are that an advertisement dated 05.05.1987 was published in newspaper, wherein 1400 vacancies for appointment of Medical Officers of Ayurved and Unani were published. In response thereof, the petitioners have also applied for the said post. The marks were bifurcated and on the basis of merit, 70% marks were allocated for academic qualification and 30% marks were allocated for interview, out of which 10% marks in viva-voce were necessary to be obtained by the candidate for being selected. The said criteria was challenged in Writ Petition No. 5495 (S/B) of 1998 by Ayurved Doctors Association, which was allowed vide order dated 12.04.1994 and viva-voce marks were reduced from 30% to 15% directing the State Government to re-calculate the marks of candidates whether selected or not selected and to prepare a fresh select list and to make appointment accordingly. The State Government challenged the order of the High Court by means of filing Special Leave Petition before the Hon'ble Supreme Court which was dismissed on 08.12.1996. In compliance thereof, the merit list was prepared by the opposite parties. But the State Government initially decided to appoint only such persons who were petitioners in earlier writ petition, leaving several other selected candidates from being appointed. So another Writ Petition No. 19695 of 1999(Ayurved Doctors Association and others v. State of Uttar Pradesh and others) was filed by the Ayurved Doctors Association and some other persons also filed other writ petitions and the bunch of writ petitions were connected and came to be decided vide judgment and order dated 26.10.1999. While deciding the bunch of writ petitions, the Court clearly provided that the appointment will be made from the selection held in the year 1988 and the merit list prepared on the basis of the judgment passed earlier on 12.04.1994, which provided for recalculation of marks on the basis of reduction of percentage of viva-voce marks from 30% to 15%. In compliance thereof, the State Government finalized the merit list of the selected candidates after reducing the viva-voce marks from 30% to 15%. In the said merit list, the names of the petitioners were at serial nos. 41, 70, 115, 117 and 119 in general category and at serial nos. 29, 32 and 40 in backward category respectively. It has further been submitted that the persons at serial nos. 53,67,71,107,124,125 and 127 in the select list of general category were appointed while the petitioner nos. 1 to 5 who were at serial nos. 41, 70, 115, 117 and 119 were ignored, while they were higher in merit. Similarly amongst the backward category persons, at serial no.94,10,103 of the appointment order issued in the year 1988 were at serial nos. 37, 39 and 42 of the merit list while petitioner nos. 6 to 8 belonging to backward category at serial no. 29, 32 and 34 of the merit list were ignored. Thereafter, the State Government kept on making appointments as and when it wanted, but did not follow the merit list while making appointments and the petitioners were not appointed, which fact has been mentioned in paragraph nos. 16 and 17 of the writ petition.;