DEVI PRASAD SINGH,J. - (1.) THE present writ petition has been filed under Article 226 of the Constitution of India for issuance of writ of mandamus to direct the opposite parties to appoint the petitioner against Class IV post in pursuance to select list, a copy of which has been filed as Annexure-1 to the writ petition.
(2.) THE submission of the learned Counsel for the petitioner is that from the same select list several persons including Shri Ram Nath Verma, Shri Surendra Pal and Nasrat Ali were appointed but petitioner has not been appointed by the respondents. Attention has been invited towards communication dated 30.9.1986, a copy of which has been filed as Annexure-2 to the writ petition by which District Selection Committee had requested District Panchayat Raj Officer, Lakhimpur Kheri to appoint the petitioner against regular vacancy keeping in view the merit in pursuance to the select list. It has been stated that in spite of the fact that a decision was taken to appoint the petitioner but for extraneous reasons the appointment was not given effect.
(3.) LEARNED Counsel for the petitioner had relied upon the judgments reported in 2006 (24) LCD 128, Vijay Kumar and another v. State of U.P. and others; 1993 LCD 524, Rama Kant Ram v. State of U.P. and others and a Division Bench judgment of this Court reported in 2008 (26) LCD 894, Ajit Kumar Singh v. Union of India and others. The Division Bench in the case of Ajit Kumar Singh (supra) relying upon the Apex Court judgment reported in 2000(3) SCC 699, State of U.P. v. Ram Swarup Saroj, held that in case a person is selected for appointment and vacancy exists and he is denied appointment arbitrarily then it shall be an instance of arbitrary exercise of power. It has been held by the Division Bench that because of pendency of writ petition a person should not be put to suffer. For convenience relevant portion from the judgment of Ajit Kumar Singh's case is reproduced as under : "8. It is admitted case of the parties that in the written examination as held for appointment on the post of Postal Assistant, the name of the petitioner, was in the select list prepared by the Department. It is also admitted case of the parties that on 27.9.2001 when the Original Application preferred by the petitioner and three others was allowed in respect to the three applicants there were three vacancies available in the Department. It is also admitted case of the parties that Shri Rishi Saran Jaiswal who was applicant No. 3 in Original Application No. 168 of 1996 is working in the Collector, Sitapur since 22.7.1996 in pursuance of the order dated 21.7.1996. The Central Administrative Tribunal has not granted any relief to the petitioner for want of any vacancy. Admittedly a vacancy was there as Sri Rishi Saran Jaiswal who was working in the Collector, Sitapur never submitted his joining in compliance of the judgment and order dated 27.9.2001 passed by the Central Administrative Tribunal. The Central Administrative Tribunal ought to have allowed the Review Petition preferred by the petitioner as at that time also a vacancy was there. In the case of State of U.P. v. Ram Swarup Saroj, reported in 2000 (3) SCC 669, Hon'ble the Supreme Court has held that the list of selected candidates for appointment remains valid during the pendency to the litigation." ;