JUDGMENT
S.P. Srivastava and D.R. Chaudhary, JJ.
1. Heard the learned counsel for the petitioner as well as the learned counsel representing the respondent Nos. 1 and 2.
2. Perused the record.
3. The petitioner while he was holding the post of Assistant Development Officer had appeared at the selection test held by U. P. Public Service Commission through a competitive examination for being appointed against a vacancy in the post of Block Development Officer. The competitive examination held by the U. P. Public Service Commission
was for selecting the suitable persons for appointment against the available vacancies in the posts of Block Development Officer, Assistant Employment Officer and District Harljan and Social Welfare Officer. The competitive examination was held in the year 1981. Its result was declared on 10.6.1983. The petitioner could not get his name placed in the merit list but on the basis of his performance succeeded in getting his name placed at serial No. 6 in the waiting list which was a combined waiting list.
4. The merit list as well as the waiting list were prepared on the basis of the declaration of the result dated 10.6.1983. The waiting list according to the Government order in force was valid only for a period of one year which expired on 10.6.1984. It has been brought on record and in fact not disputed that a total number of 57 candidates recommended for appointment by the Commission did not turn up and as such a large number of vacancies remained unfilled. In the aforesaid circumstances, the appointing authority who was the Agriculture Production Commissioner who had acquired knowledge of the fact that 57 persons had declined to Join the post before expiry of the one year from the date of declaration of the result, requested the Commission to send additional list of recommendees so that the vacancies may be filled up. The vacancies in the post of the Block Development Officers remained unfilled during the currency of the waiting list. However, the Government was unable to appoint any candidate prior to 25.5.1984 on which date the interim stay in another case which was granted by the High Court was modified. This interim order had been granted in Writ Petition No. 6124 of 1981 restraining the authorities to appoint on the basis of the selection list which had been published in the year 1983. After the vacation of the interim order, the Government had decided to proceed with and act upon the selection list. The Agriculture Production Commissioner had, therefore, requested the Commission to send the list of its recommendees
so that suitable persons could be appointed from the select list or waiting list but the Commission did not send any recommendation. It may be noticed that the period of stay was liable to be excluded while computing the period of one year of currency of the select list/waiting list as no person could be allowed to suffer at the hands of the Court.
5. Learned counsel for the petitioner, in the circumstances, has strenuously urged that since the vacancies had become available within one year from the date of declaration of the result, that is to say, during the currency of the select list, the Government was bound to offer the appointment to the candidates of the waiting list which was not done. Learned counsel for the petitioner in support of the submission has placed reliance on the decision of this Court in Writ Petition No. 19639 of 1995, Dr. Rani Singh v. State of U. P. and Ors. decided on 25.8.1998, rendered by a Division Bench wherein this Court had clarified that if the Government is to follow the requirement of submission of recommendation within one year of creation of vacancy, they must take immediate action after the vacancies are made available for appointment. In that case, it was due to the laches and inaction of the Government that the recommendations were not called for from the Public Service Commission timely, hence this Court had held that the candidate could not be made to suffer.
6. In another decision of this
Court in Writ Petition No. 15243 of 1984, Ram Naresh v. State of U. P., decided on 5.4.1985, rendered by a Division Bench, it had been observed that once the vacancies were available and this fact had been brought to the notice of the Appointing Authority within the period of the currency of the select list, it was wholly immaterial if the petitioner had not moved within one year as it would have not made any difference in law as the vacancy having arisen within one year, it had to be filled by the candidate in the
waiting list. Accrual of vacancy within one year and its filling by candidate in waiting list are automatic. It had to be done by the Government. It does not depend on movement by the candidate, many of whom may not know if vacancy had arisen. In either case, vacancy having arisen within one year or its becoming available, the opposite parties committed error of law in not filling the same from candidates of waiting list as one year had elapsed from the declaration of result. If such a construction is put on the Government order it shall result in not only frustrating it but its effect would be that a candidate in the waiting list shall be deprived because of delay on which he can have no .control.
7. Learned counsel representing the Stale has strenuously urged that the petitioner has approached this Court with inordinate delay and the running out of the period of currency of the select list/waiting list could not be arrested. In support of this submission, reliance has been placed on the observations made by Hon’ble Supreme Court in State of Bihar v. Mohd. Kalimuddin. AIR 1996 SC 1145. The Apex Court in its aforesaid decision had indicated that the life or duration of the panel or list which was one year under the Rule having been framed under Article 309 of the Constitution having statutory force, the appellant-State was right in contending that continuance of the panel or list beyond one year would be a violation of the statutory rule and. therefore, illegal. Even the Court could not stop it from lapsing in exercise of judicial discretion unless its constitutional validity was questioned.
8. In yet another decision, the Apex Court in the case of M. P. Electricity Board and Anor. v. Virendra Kumar Sharma, 2002 FLR 767, It was observed that any scheme for selection will depend upon the terms on which selections are made. In that, case the scheme was provided in the circular dated 9.12.1968 and that circular provided for the panel to be valid/current for a particular period, namely, one year.
In such a situation, it was held that the list would lapse and fresh panel had to be prepared as the validity/currency of panel was for a particular period indicating that salulary principle behind that rule was to avoid a situation where after the selections are made and appointments to be made may not take long time, It is possible that new candidates may have become available who are better or more qualified than those selected, and if they are appointed it would be in the best interests of the institution.
9. In the present case, what we find is that in fact the vacancies continued to be available during the validity/currency of the panel as a large number of recommendees of the Commission from the select list did not turn up to Join the posts. In fact, the Appointing Authority had requested the U. P. Public Service Commission to make its recommendation and send the additional list of the names of suitable candidates as the selected candidates who had been recommended by the Commission had refused to turn up. But the Commission did not respond. In the result, the vacancies remained unfilled. This having happened during the currency of the select list as well as the waiting list, there could be no Justification for depriving the petitioner from getting the appointment on the post in question.
10. It may be noticed that in the case of M. P. Electricity Board (supra) and State of Bihar (supra), neither any such contingency had been visualised nor involved. The Apex Court had clarified the general rule but the question regarding exception to it in the circumstances as noticed hereinabove had not arisen for consideration. It may be noticed that the Apex Court itself in its decision in the case of State of Orissa v. Sudhansu Sekhar Misra and Ors. AIR 1968 SC 647, had clearly observed that a decision is only an authority for what It actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically
follows from the various observations made in it. The Apex Court in its aforesaid decision further approved the observation made in the case of Quinn v. Leathem. 1901 AC 495. It was to the effect that it is not a profitable task to extract a sentence here and there from a judgment and to build upon it.
11. The ratio of the decision in the case of Dr. Rani Singh (supra), as well as Ram Naresh (supra) are squarely attracted in the facts and circumstances of the present case. The present writ petition had been filed on 5.5.1987, As has already been indicated by this Court in the decision in the case of Ram Naresh (supra), the petitioner could not be made to suffer1 on account of laches or inaction of the Government. The petitioner was a departmental candidate. He is continuing as Assistant Development Officer. Learned counsel for the petitioner, after consulting the petitioner himself who is present in Court, states that the petitioner will not claim any seniority from a date prior to the date of his appointment made hereafter and shall be satisfied if he is kept junior most to the regularly appointed Block Development Officers. The petitioner who is present in person further states that at present, a large number of vacancies of Block Development Officers are available against which the petitioner can be considered.
12. Taking into account the totality of the circumstances brought on record, we are of the opinion that the interest of justice will be served if the respondents are directed to ensure that the petitioner is considered for appointment as against the available vacancy on the post of Block Development Officer on receiving the recommendation of the Commission. The Commission shall not withhold the recommendation on the ground that the currency/validity of the select list/waiting list has lapsed. This exercise will be completed within a period of two months from the date of production of a certified copy of this order before the authority concerned. The
appointment granted lo the petitioner shall be subject to the conditions indicated hereinabove.
13. This writ petition is disposed
of finally in terms of the directions as indicated hereinabove.
14. There shall, however, be no order as to cost.