JUDGMENT
Umeshwar Pandey, J.
1. The U.P. Public Service Commission in the year 1981 had advertised vacancies for recruitment in the posts of Block Development Officers and other allied services. In pursuance thereto the petitioner as a candidate of the reserved category of Other Backward Classes (hereinafter referred as ‘OBC’) had offered his candidature and made an application for the recruitment. After his having qualified in the written test as well as in the interview, his name appeared in the final result, which was declared on 10.6.1983. The petitioner was shown at No. 1 in the OBC category of the waiting list approved by the Public Service Commission (hereinafter referred as ‘the Commission’). The Commission with its recommendations sent the merit list as well as waiting list to the Government. As some candidates selected in the category of OBC did not join the service and they intimated their intention to the Commission as well as the Government in writing, the appointment in the vacancies left by them should have been offered to the petitioner. The repeated communication of the petitioner with the Commission did not get any response from the other side and he did not receive any intimation regarding his appointment against the existing vacancies. The petitioner was given to understand that his appointment could not be made against those vacancies as the Government had failed to utilize the waiting list within a period of one year from the date of publication of the result. In Paras 10 and 11 of the writ petition it is contended that the relevance of the period of one year life of a select list/waiting list has been negatived in subsequent Government Orders, which have been annexed as Annexures No. 1 and 2 to the writ petition. Once waiting list candidate, namely Hakim Singh got his appointment in the year 1989 much after the expiry of the life period of the list, but the petitioner’s all efforts for his adjustment by way of appointment to the post of Block Development Officer etc. have given no result. The petitioner has, thus, prayed for a writ in the nature of mandamus commanding the respondents to appoint him on the post of Block Development Officer etc. on the basis of result of 1981 examination and also to command respondent No. 3, the Commission, to take a decision in the matter of petitioner’s recommendation for appointment to the aforesaid vacant posts.
2. Subsequent to the filing of the writ petition, the petitioner under the orders of the Court impleaded Respondents No. 4 and 5 in the petition. The Respondents No. 1 and 2 have not filed any counter affidavit in the case. Respondent No. 3, the Commission, has contested and filed a counter affidavit. In Para 7 of the counter affidavit it is pleaded that the first communication, which it received from the Agricultural Production and Rural Development Department of the Government was dated 15.6.1984 and subsequent letter dated 27.9.1985 was also received informing that 26 candidates had not jointed on the post of BDO. Since both the letters sent by the Appointing Authority to the Commission were of the date falling after the expiry of the period of life of select list/waiting list, they were treated as time barred in view of the Government Order dated 30.1.1979, 2.2.1981, 14.7.1981 and 15.7.1982. Accordingly the Commission did not recommend any name to the Government from out of the said waiting list for appointment against the existing vacancies on the posts of BDO etc. The Commission has further contended that there are several other candidates of higher merit, who had their better claim than the petitioner for appointment against the existing vacancies and there was no justification for the Commission to recommend petitioner’s name for such appointment. It is, however, admitted in Para 12 of the counter affidavit that some earlier petitions were filed in respect of the same matter in which this Court has given decision holding that the list would continue after one year provided the vacancy had arisen within one year of the life duration of the select list/waiting list. In the counter affidavit, the Commission has also given the details of those candidates of 1981 examination whose names had been recommended to the Government on the direction given by the Court. The respondent No. 4, Jai Ram Varma, after his impleadment has also put in appearance and filed his counter affidavit stating that he had secured more marks in the said competitive examination than the petitioner and as such his appointment against the vacancy of Block Development Officer cannot be dislodged and the petitioner’s claim cannot be preferred as against him,
3. We have heard the learned Counsel for the petitioner as well as the learned Counsel appearing for the respondent No. 3, the Commission, and respondent No. 4, Jai Ram Varma.
4. The learned Counsel for the petitioner, relying upon the judgment rendered by a Division Bench of this Court in Writ Petition No. 8842 of 1987, Ram Dutta v. State of U.P. and Ors. decided on 11.4.2002, has urged that this judgment also relates to the claim of a petitioner, who was in the waiting list of the result declared by the Commission on 10.6.1983. The Division Bench, while holding the validity of the list, has very clearly observed in the judgment that since the vacancy had become available within one year from the date of declaration of result, the Government was bound to offer the appointment to the candidate of the waiting list, which has not been done in this case. While delivering the judgment the Division Bench presided over by one of us (Hon’ble S.P. Srivastava, J.) has relied upon two other decisions of Division Benches of this Court rendered in Writ Petitions No. 19639 of 1995, Dr. Rani Singh v. State of U.P. and Ors. and 15243 of 1984, Ram Naresh v. State of U.P., decided on 25.8.1998 and 5.4.1985 respectively. Para 9 of the judgment, which categorically deals with the point in question about the availability of the waiting list and the result declared in the said examination, is quoted as below ;
Para 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 has 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.”
5. Besides the aforesaid decision of the Division Bench there are two other decisions of this Court given by Division Benches. They also relate to the question of availability of the waiting list of the said examination of 1981, Those decisions are given in Writ Petition No. 851 of 1986, Awadesh Kumar v. State of U.P. and Anr. decided on 26.7.1989 and Writ Petition No. 12138 of 1985, Hakim Singh v. State of U.P. and Ors. decided on 2.1.1989. In both these cases it has been clearly held that the vacancy if has occurred before the expiry of the period of one year from the date of declaration of the result, it would be available to be filled up from out of the waiting list of the same examination.
6. Since in the present case as already held by several Division Benches in the aforesaid petitions that the vacancies continued to be available during the validity/currency of the select panel as a large number of recommendees of the Commission from the select list did not turn up to join the post and the Appointing Authority had requested the Commission to make its recommendation and to send an additional list, the petitioner being at Serial No. 1 of the waiting list of the Reserved Category of OBC should have been considered if he was otherwise qualifying for such appointment on the post of Block Development Officer etc. His candidature for such appointment could not have been ignored simply because by the time the Agriculture Production and Development Department (Appointing Authority/Government has asked for the Commission’s recommendation after the expiry of the period of one year of the waiting list. If the petitioner was otherwise in the merit for such recommendation to the Government by the Commission, the respondent No. 3, it could not have withheld it on the ground that the validity period of the select list/waiting list had elapsed.
7. Taking into account the totality of the circumstances brought on record, we are of the view that the interest of justice will be served if the respondents are directed to ensure the petitioner’s appointment as against the available vacancy in the post of Block Development Officer etc. 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 recommendation shall be strictly in accordance with the merit list prepared by the Commission and without by-passing the claim of Respondents No. 4 and 5 if they are placed higher in merit as compared to the petitioner. 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 seniority of the petitioner shall be counted from the date of his appointment in the department. The appointment granted to the petitioner shall be subject to the conditions indicated above.
8. The writ petition is disposed of finally in terms of the directions enumerated hereinabove.
9. There shall be no order as to costs.