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The State Of U.P. Through Secy. Karmik, U.P. Lucknow v. Yogendra Kumar Pal And Another - SPECIAL APPEAL No. - 99 of 1999 [2007] RD-AH 17190 (30 October 2007)

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Court No.32

Special Appeal No. 99 of 1999

The State of U.P. .....Appellant


Yogendra Kumar Pal and another .....Respondents


Hon'ble S.Rafat Alam, J.

Hon'ble Sudhir Agarwal,J.

We have heard Sri Yogendra Kumar Yadav, learned counsel appearing for the appellant-State of Uttar Pradesh and Sri M.A.Qadeer, learned counsel, who has put in appearance on behalf of respondent no.2-Commission. Though this case has been called out in the revised list but no one has put in appearance on behalf of petitioner-respondent no.1.

This intra Court appeal under the Rules of the Court has been preferred against the judgment dated 9.4.1998 passed by the Hon'ble Single Judge disposing of Civil Misc. Writ Petition No.32389 of 1997 directing the State Government to send requisition in respect to the vacancies which arose as a result of resignation etc. to the U.P. Public Service Commission, Allahabad, (hereinafter referred to as the "Commission") within a period of two months and the Commission has been directed to send the names of the candidates from the wait list in order of merit to the State Government for appointment.

Learned Standing Counsel appearing on behalf of the appellant contended that against any vacancy in respect whereto the selected candidate has been issued letter of appointment and has joined and if has subsequently submitted resignation or the vacancy has occurred thereafter for any other reason, such vacancy cannot be treated unfilled vacancy which can be filled in from the candidates of the earlier selection. It is to be treated as a new vacancy and can be filled in only after its fresh advertisement and fresh selection by the competent authority. The earlier selection cannot be utilized to fill in such vacancy. That being so, the wait list candidates of earlier selection have no right to claim appointment against such subsequent vacancies. He further contended that the final select list was prepared on 31.1.1996 and the vacancies, have occurred after expiry of more than one year, i.e., after the expiry of the life of the select list and therefore, the wait list candidates cannot claim appointment against such vacancy.

Sri Ravi Kiran Jain, learned senior counsel assisted by Sri R.C.Tiwari, Advocate appearing for the intervener-respondent and Sri M.A.Qadeer, learned counsel appearing for the U.P. Public Service Commission assailed the judgment of the Hon'ble Single Judge and argued in support of the appeal by submitting that the controversy is squarely covered by the judgment of this Court, hence the judgment under appeal cannot sustain.

We have considered the submissions made by the learned counsel for the parties.

In our view, the controversy involved in this matter is squarely covered by our judgment dated 8.2.2007 in the case of U.P. Public Service Commission, Allahabad and another Vs. State of U.P. and another, 2007(5) ADJ 280 (DB). The right of wait list candidate was considered by this Court and in para-15 of the judgment it was held "A wait list candidate does not have any indefeasible right to get appointment merely for the reason that his name finds place in the wait list." This Court in taking the aforesaid view relied upon the decision in Ved Prakash Tripathi Vs. State of U.P., 2001(1) ESC 317 and Surinder Singh and others vs. State of Punjab and another, (1997) 8 SCC 488 and held that even a select list candidate has no indefeasible right to claim appointment. In para-31 of the judgment in U.P. Public Service Commission, Allahabad and another (supra) this Court has further held as under:

"Moreover, even in the case of a select list candidate, the law is well settled that such a candidate has no indefeasible right to claim appointment merely for the reason that his name is included in the select list as the State is under no legal duty to fill up all or any of the vacancy and it can always be left vacant or unfilled for a valid reason."

This Bench relied upon the decision of the Hon'ble Apex Court in Shankarsan Dash v. Union of India, AIR 1991 SC 1612 and State of U.P. and others Vs. Raj Kumar Sharma and others, 2006(3) SCC 330 and in para-39 of the judgment in U.P. Public Service Commission, Allahabad and another (supra) has held as under:

"Thus, a wait list candidate cannot seek a writ of mandamus enforcing his right to claim appointment by seeking a direction to the Commission to make recommendation of his name from the waiting list and the Government is not obliged to appoint him consequently unless it is substantiated by a statutory provision."

In view of the aforesaid law laid down in U.P.Public Service Commission, Allahabad and another (supra), we are of the view that the direction issued by the Hon'ble Single Judge vide judgment under appeal cannot sustain. The special appeal succeeds and is hereby allowed. The impugned judgment dated 9.4.1998 passed in Civil Misc. Writ Petition No.32389 of 1997 is hereby set-aside and consequently the writ petition of the petitioner-respondent is dismissed. However, there shall be no order as to costs.

Dated: 30.10.2007



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