# Nadeem Anwar v. State Of U.P. & Anr

- **Citation:** (2016) 3 ILRA 76
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-03-01
- **Bench:** V.K Shukla, Mahesh Chandra Tripathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nadeem-anwar-v-state-of-u-p-anr-43600
- **Pages:** 16

## Headnote

Service Law - Judicial Service - Civil Judge (Junior Division) - Advertisement No. A-1/E-1/2013
dated 23.5.2013 - Requisition of 125 posts - Recommendation of selected candidates - Non-joining
of candidates - Vacant posts - Select list - Wait-list - Life of select list - Uttar Pradesh Judicial
Service Rules, 2001 - Uttar Pradesh Judicial Service (Second Amendment) Rules, 2012 - Rule 20(3)
- Rule 21(2) - Statutory Rules - Executive instructions - Government Orders dated 31.1.1994 and
15.11.1999 - Cancellation of candidature - Filling up of vacancies - Mandamus.

Nadeem Anwar is before this Court for the following reliefs:
a writ, order or direction in the nature of mandamus be issued commanding the respondent no. 2 to
forward the name of the General Category candidate in order of the merit to fill the posts of Civil
Judge (Junior Division), lying vacant which was a part of the advertisement dated 23.5.2013 before
the State Government pursuance to which follow up action may be taken within a reasonable period
for appointment.
A writ, order or direction in the nature of which this Hon'ble Court may deem fit and proper under the
circumstances of the case.
Award cost to the humble petitioner throughout of the present writ petition. (Paras 1)

Brief background of the case, as is reflected from the record in question, is that a requisition of 125
posts for U.P. Civil Judge (Junior Division) under U.P. Nyayik Sewa was sent by the State Government
vide its letter dated 17.4.2013 and in consonance of the aforesaid requisition the U.P. Public Service
Commission (hereinafter referred to as the "Commission") has issued an advertisement for the
aforesaid 125 posts of Civil Judge (Junior Division) vide its advertisement No. A-1/E-1/2013 dated
23.5.2013. . (Paras 2)

Petitioner pursuant to the aforementioned advertisement in question applied for consideration of his
candidature as a General Category candidate and undertook the preliminary examination in question
wherein 1314 candidates were found suitable for the written/main examination. Written/Main
examination for the aforesaid 125 posts was held by the Commission in the month of January 2014
and out of 1314 candidates, 386 candidates were provisionally qualified for the interview/personality
test. This much is also reflected from the record that petitioner faced the interview as a General
Category candidate but he could not be selected in the final select list. Record in question reflects that
3 All. Nadeem Anwar Vs State Of U.P. & Anr.
77
recommendation of 125 selected candidates had been sent by the Commission to the State
Government, at the said point of time. Out of aforementioned 125 candidates whose names have been
recommended by the Commission to the State Government, candidates placed at serial nos. 17, 26
and 52 have not joined the posts and petitioner's submission before this Court is that against the said
vacancies in question petitioner is liable to be offered appointment as he has secured 538 marks like
the last selected General Category candidate but on account of being younger in age in consonance
with the provisions as contained in the U.P. Judicial Service (Second Amendment) Rules, 2012, he has
been left out. Petitioner, in this background, is before this Court with the submission that this Court
should come to his rescue and reprieve. (Paras 3)

Counter affidavit has been filed on behalf of the Commission and therein this fact has been accepted
that candidates placed at serial nos. 17, 26 and 52 have not joined the posts in question and posts are
lying vacant and mention has been made that without any proposal/direction of the State
Government/Department concerned no such posts could be recommended/filled up by the
Commission in reference to main examination of 2013 batch (Paras 4)

Short counter affidavit has also been filed on behalf of the State Government and therein mention has
been made that recommendations with regard to 12

## Text

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76 INDIAN LAW REPORTS ALLAHABAD SERIES
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.03.2016

BEFORE

THE HON'BLE V.K SHUKLA, J.
THE HON'BLE MAHESH CHANDRA TRIPATHI, J

Writ A No.- 66871 of 2015

Nadeem Anwar ...Petitioner
Versus
State Of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Siddharth Khare

Counsel for the Respondents:
C.S.C., Nisheeth Yadav

Service Law - Judicial Service - Civil Judge (Junior Division) - Advertisement No. A-1/E-1/2013
dated 23.5.2013 - Requisition of 125 posts - Recommendation of selected candidates - Non-joining
of candidates - Vacant posts - Select list - Wait-list - Life of select list - Uttar Pradesh Judicial
Service Rules, 2001 - Uttar Pradesh Judicial Service (Second Amendment) Rules, 2012 - Rule 20(3)
- Rule 21(2) - Statutory Rules - Executive instructions - Government Orders dated 31.1.1994 and
15.11.1999 - Cancellation of candidature - Filling up of vacancies - Mandamus.

Nadeem Anwar is before this Court for the following reliefs:
a writ, order or direction in the nature of mandamus be issued commanding the respondent no. 2 to
forward the name of the General Category candidate in order of the merit to fill the posts of Civil
Judge (Junior Division), lying vacant which was a part of the advertisement dated 23.5.2013 before
the State Government pursuance to which follow up action may be taken within a reasonable period
for appointment.
A writ, order or direction in the nature of which this Hon'ble Court may deem fit and proper under the
circumstances of the case.
Award cost to the humble petitioner throughout of the present writ petition. (Paras 1)

Brief background of the case, as is reflected from the record in question, is that a requisition of 125
posts for U.P. Civil Judge (Junior Division) under U.P. Nyayik Sewa was sent by the State Government
vide its letter dated 17.4.2013 and in consonance of the aforesaid requisition the U.P. Public Service
Commission (hereinafter referred to as the "Commission") has issued an advertisement for the
aforesaid 125 posts of Civil Judge (Junior Division) vide its advertisement No. A-1/E-1/2013 dated
23.5.2013. . (Paras 2)

Petitioner pursuant to the aforementioned advertisement in question applied for consideration of his
candidature as a General Category candidate and undertook the preliminary examination in question
wherein 1314 candidates were found suitable for the written/main examination. Written/Main
examination for the aforesaid 125 posts was held by the Commission in the month of January 2014
and out of 1314 candidates, 386 candidates were provisionally qualified for the interview/personality
test. This much is also reflected from the record that petitioner faced the interview as a General
Category candidate but he could not be selected in the final select list. Record in question reflects that
3 All. Nadeem Anwar Vs State Of U.P. & Anr.
77
recommendation of 125 selected candidates had been sent by the Commission to the State
Government, at the said point of time. Out of aforementioned 125 candidates whose names have been
recommended by the Commission to the State Government, candidates placed at serial nos. 17, 26
and 52 have not joined the posts and petitioner's submission before this Court is that against the said
vacancies in question petitioner is liable to be offered appointment as he has secured 538 marks like
the last selected General Category candidate but on account of being younger in age in consonance
with the provisions as contained in the U.P. Judicial Service (Second Amendment) Rules, 2012, he has
been left out. Petitioner, in this background, is before this Court with the submission that this Court
should come to his rescue and reprieve. (Paras 3)

Counter affidavit has been filed on behalf of the Commission and therein this fact has been accepted
that candidates placed at serial nos. 17, 26 and 52 have not joined the posts in question and posts are
lying vacant and mention has been made that without any proposal/direction of the State
Government/Department concerned no such posts could be recommended/filled up by the
Commission in reference to main examination of 2013 batch (Paras 4)

Short counter affidavit has also been filed on behalf of the State Government and therein mention has
been made that recommendations with regard to 124 candidates have been sent against the total 125
selected candidates to the State Government and out of aforesaid 124 candidates appointment letters
have been issued to 122 candidates after their character verification and medical examination.
Mention has also been made of the fact that since Kaustubh Mishra and Sudhansu Ranjan Mishra,
whose names were shown at serial nos. 17 and 52 sent by the Commission to the State Government,
have not joined the posts within the stipulated time, as such, their candidatures have been cancelled
by means of orders dated 14.12.2015 and 19.1.2016 respectively. In reference of candidate placed at
serial no. 26 in the recommendation list namely Shivendra Kumar Mishra it has been mentioned that
final decision could not be taken due to some legal impediment in his matter and after taking legal
advice from the Law Department, proceeding is being undertaken.(Para 5)

Held (Paras 16,17,18, 19)

1. These Government Orders in question would not at all be applicable in reference of the life span of
the select list in question. Once the Rules in question are specific and the law on the subject is clear
that in case any executive instructions are running counter to the statutory Rules, then executive
instructions should give way to the statutory Rules in question. Apex Court in the case of Ram Ganesh
Triapthi Vs. State of U.P. & Others, AIR 1997 SC 1446, has taken the view that any Government Order
contrary to rules cannot be enforced rather requires to be ignored. The factual situation, that is
emerging in the present case, is that life span of select list will continue to remain in operation till all
the vacancies advertised or varied after due notification, are filled up and here accepted position is
that three vacancies still remain unfilled up as candidates, who have been placed at serial nos. 17, 26
and 52 have not joined the posts in question and as far as candidates at serial nos. 17 and 52 are
concerned, their candidature in question has already been cancelled by the State Government and
even in reference of candidate placed at serial no. 26, decision is awaited. Even this much fact has
been accepted before us that fresh requisition has been sent by the State Government and pursuant
to the same fresh advertisement has been issued, but the vacancies referred to in the judgment have
been left out and have not been included. Once such is the factual situation and such is the language
of the Rules in question, then inevitable conclusion is that in reference of selection and appointment to
be made under the U.P. Judicial Service Rules, 2001, as amended up to the date, as against the
recommendations, that have been so made, the Commission is under statutory obligation not only to
make recommendations of total number of vacancies, that have been requisitioned, but to also
prepare 10% of the additional wait-list that would be utilized in the contingency when recommended
candidates fail to join their respective posts.
78 INDIAN LAW REPORTS ALLAHABAD SERIES
3. Consequently, in the facts of the case, keeping in view the spirit of the Rules in question, as
accepted position is that candidates placed at serial nos. 17, 26 and 52 have not joined their
respective posts and posts are still lying vacant and in reference of two candidates already decision
has been taken by the State Government to cancel their candidature. We are conscious of this fact
that even in the case of select-list candidates, what to say of a wait-listed candidate the law is well
settled that such a candidate has no indefisible 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 valid reasons. State Government, in the present
case, in the affidavit filed before us has not at all come up with the case, that State Government
intends to leave the vacancies requisitioned/advertised vacant. The Commission has also submitted in
affidavit filed before this Court that the moment requisition is received from the State Government,
needful would be done. Accordingly, in the peculiar characteristic of the case and the Rules holding
the field, we proceed to pass an order directing the State Government to forthwith forward the
requisite requisition to the Commission and the Commission, thereafter, in its turn, would make
necessary recommendations in favour of candidates, who stand in merit, subject to fulfilment of other
terms and conditions. The entire exercise be undertaken within next three months from the date of
receipt of certified copy of this order.

4. Writ petition is allowed, accordingly.

4. No order as to the costs.

Case Law discussed:
1. Sri Kant Tripathi Vs. State of U.P. & Others, 2001 (10) SCC 337- (para 15).
2. Ram Ganesh Tripathi Vs. State of U.P. & Others, AIR 1997 SC 1446 - (para 16).

(Delivered by Hon'ble V.K. Shukla, J.)

1. Nadeem Anwar is before this Court for the following reliefs:

I. a writ, order or direction in the nature of mandamus be issued commanding the
respondent no. 2 to forward the name of the General Category candidate in order of
the merit to fill the posts of Civil Judge (Junior Division), lying vacant which was a
part of the advertisement dated 23.5.2013 before the State Government pursuance to
which follow up action may be taken within a reasonable period for appointment.

II. A writ, order or direction in the nature of which this Hon'ble Court may deem fit
and proper under the circumstances of the case.

III. Award cost to the humble petitioner throughout of the present writ petition.

2. Brief background of the case, as is reflected from the record in question, is that a
requisition of 125 posts for U.P. Civil Judge (Junior Division) under U.P. Nyayik Sewa was
sent by the State Government vide its letter dated 17.4.2013 and in consonance of the
aforesaid requisition the U.P. Public Service Commission (hereinafter referred to as the
"Commission") has issued an advertisement for the aforesaid 125 posts of Civil Judge
(Junior Division) vide its advertisement No. A-1/E-1/2013 dated 23.5.2013. In the said
advertisement the posts for each category was determined as under;
3 All. Nadeem Anwar Vs State Of U.P. & Anr.
79

63 posts for General Category candidates
26 posts for Scheduled Caste category candidates
02 posts for Scheduled Tribes category candidates
34 posts for Other Backward Class category candidates.

3. And under horizontal reservation 02 posts were determined for D.F.F. Candidates
and 25 posts were to be filled up by female candidates.

4. Petitioner pursuant to the aforementioned advertisement in question applied for
consideration of his candidature as a General Category candidate and undertook the
preliminary examination in question wherein 1314 candidates were found suitable for the
written/main examination. Written/Main examination for the aforesaid 125 posts was held
by the Commission in the month of January 2014 and out of 1314 candidates, 386
candidates were provisionally qualified for the interview/personality test. This much is also
reflected from the record that petitioner faced the interview as a General Category candidate
but he could not be selected in the final select list. Record in question reflects that
recommendation of 125 selected candidates had been sent by the Commission to the State
Government, at the said point of time. Out of aforementioned 125 candidates whose names
have been recommended by the Commission to the State Government, candidates placed at
serial nos. 17, 26 and 52 have not joined the posts and petitioner's submission before this
Court is that against the said vacancies in question petitioner is liable to be offered
appointment as he has secured 538 marks like the last selected General Category candidate
but on account of being younger in age in consonance with the provisions as contained in
the U.P. Judicial Service (Second Amendment) Rules, 2012, he has been left out. Petitioner,
in this background, is before this Court with the submission that this Court should come to
his rescue and reprieve.

5. Counter affidavit has been filed on behalf of the Commission and therein this fact
has been accepted that candidates placed at serial nos. 17, 26 and 52 have not joined the
posts in question and posts are lying vacant and mention has been made that without any
proposal/direction of the State Government/Department concerned no such posts could be
recommended/filled up by the Commission in reference to main examination of 2013 batch.

6. Short counter affidavit has also been filed on behalf of the State Government and
therein mention has been made that recommendations with regard to 124 candidates have
been sent against the total 125 selected candidates to the State Government and out of
aforesaid 124 candidates appointment letters have been issued to 122 candidates after their
character verification and medical examination. Mention has also been made of the fact that
since Kaustubh Mishra and Sudhansu Ranjan Mishra, whose names were shown at serial
nos. 17 and 52 sent by the Commission to the State Government, have not joined the posts
within the stipulated time, as such, their candidatures have been cancelled by means of
orders dated 14.12.2015 and 19.1.2016 respectively. In reference of candidate placed at
serial no. 26 in the recommendation list namely Shivendra Kumar Mishra it has been
80 INDIAN LAW REPORTS ALLAHABAD SERIES
mentioned that final decision could not be taken due to some legal impediment in his matter
and after taking legal advice from the Law Department, proceeding is being undertaken.

7. On the basis of pleadings that have come on record present matter has been taken up
for final hearing and disposal.

8. Sri Siddharth Khare, Advocate, submitted that once candidate whose candidature has
been recommended have failed to join and his candidature stood cancelled, then in all
eventuality steps ought to have been undertaken for filling up the same from wait-listed
candidates as here the life of select list has been subsisting.

9. Learned Standing Counsel as well as Sri Nisheeth Yadav, Advocate, submitted that
in the facts of the case as per the stand taken in the counter affidavit, relief claimed cannot
be allowed.

10. After respective arguments have been advanced, in pith and substance, this fact
stands accepted by the State Government that qua the candidates mentioned at serial nos. 17
and 52 decision has already been taken to cancel their candidature vide orders dated
14.12.2015 and 19.1.2016 respectively by the State Government and in reference of
candidate placed at serial no. 26 qua the recommendation made in favour of Shivendra
Kumar Mishra final decision has not been taken due to some legal impediment and, in view
of this, as far as his candidature is concerned, same has not been cancelled and matter is
pending.

11. Selection and appointment of Civil Judge (Junior Division) is regulated by statutory
provisions known as The Uttar Pradesh Judicial Service Rules 2001 framed by the Governor
in pursuance of the provisions of Clause (3) of Article 348 of the Constitution. The said
rules in question have been framed by the Governor in consultation with the Commission
and the High Court of Judicature at Allahabad. Procedure for recruitment to the service is
contained under Part 5 and matter pertaining to the appointment, probation and confirmation
is contained under Part 6. For ready reference, Part V and Part VI of the Uttar Pradesh
Judicial Service Rules 2001 are being quoted below;

"PART V

Procedure for Recruitment to the Service

15. Determination of vacancies.- The Governor shall, in consultation with the Court,
determine and intimate to the Commission the number of vacancies in the posts of
Civil Judge (Junior Division) to be filled in during the year of recruitment as also the
number of vacancies to be reserved for candidate belonging to Scheduled Caste,
Scheduled Tribe and other categories.

16. Competitive Examination.- The examination may be conducted at such time and
on such dates as may be notified by the Commission and shall consist of-
3 All. Nadeem Anwar Vs State Of U.P. & Anr.
81

(a) a written examination in such legal and allied subject includingprocedure, as may
be included in the Syllabus prescribed under Rule 19, unless the same is otherwise
modified by the Governor in consultation with the Court and the Commission;

(b) an examination to test the knowledge of the candidates in Hindi, English and
Urdu;

(c) an interview for assessing merit of the candidate giving dueregard to his ability,
character, personality, physique and general suitability personality, physique and
general suitability for appointment to the service.

17. Application Form.- (i) Application for permission to appear at the competitive
examination shall be invited by the Commission in the prescribed pro forma
published in the advertisement issued by a Commission.

(ii) No candidate shall be admitted to the examination, unless he holds a certificate of
admission issued by the Commission.

18. Fees.- Candidates must pay to the Commission and to the President of Medical
Board such fees as may from time to time be specified by the Government.

19. Syllabus.- The Syllabus and the rules relating to the competitive examination shall
be such as given in the Appendix II, provided that the Syllabus and rules may be
amended by the Governor in consultation with the Commission and Court.

PART VI

Appointment, Probation and Confirmation

 20. List of candidate approved by the Commission.-

(1)
After the result of written examination is prepared, theCommission shall call
for interview such number of candidates, who in the opinion of the Commission
have secured minimum marks as may be fixed by the Commission in this respect.

(2)
Notwithstanding anything to the contrary contained in anyrules or orders, the
Commission shall invite a sitting Judge of the Court to be nominated by the Chief
Justice to participate in the interview of the candidates called under sub-rule (1) and
the opinion given by him with regard to the suitability of the candidates shall not be
disregarded by the Commission unless there are strong and cogent reasons for not
accepting the opinion which reasons must be recorded in writing by the
Commission.

(3)
The Commission then shall prepare a final list of selectedcandidates in order
of their proficiency as disclosed by aggregate of marks finally awarded to each
candidate in the written examination and the interview:
82 INDIAN LAW REPORTS ALLAHABAD SERIES

Provided that if two or more candidates obtain equal marks in the aggregate, the
name of the candidate being elder in age, shall be placed higher:

Provided further that if two or more candidates of equal age obtain equal marks in
aggregate, the name of the candidate, who has obtained higher marks in the written
examination, shall be placed higher.

 21. Appointment to the service.- (1) Subject to the provisions of sub-rule (2), the
Governor shall, on receipt of the list of candidates submitted by the Commission
under sub-rule (3) of Rule 20, make appointment on the post of Civil Judge (Junior
Division) in the order in which their names are given in the list provided the
Governors is satisfied that the Candidate is otherwise qualified and entitled for such
appointment under these rules.

(2) The select list prepared under sub-rule (3) of Rule 20 shall lapse after all the
vacancies advertised or varied after due notification, are filled up."

12. In the aforementioned Rules of 2001 amendment in question has been
introduced known as The Uttar Pradesh Judicial Service (Second Amendment) Rules, 2012
and the said amendments are as follows;

"In pursuance of the provisions of clause (3) of Article 348 of the Constitution, the
Governor is pleased to order the publication of the following English translation of
notification no. 2189/Two-42012-45(32)/2006 dated December 10, 2012.

GOVERNMENT OF UTTAR PRADESH
APPOINTMENT SECTION-4
NOTIFICATION
Miscellaneous
No. 2189/Two-4-2012-45(32)/2006
Dated Lucknow, December 10, 2012

In exercise of the powers conferred by the Article 234 and the proviso to Article
309 of the Constitution, the Governor, in consultation with the Uttar Pradesh
Public Service Commission and the High Court of Judicature at Allahabad, is
pleased to make the following rules with a view to amending the Uttar Pradesh
Judicial Service Rules, 2001:

THE UTTAR PRADESH JUDICIAL SERVICE (SECOND
AMENDMENT) RULES, 2012

Short title and
commencement
1
(1) These rules may be called the Uttar Pradesh
Judicial Service (Second
Amendment) Rules, 2012
3 All. Nadeem Anwar Vs State Of U.P. & Anr.
83
Substitution of rule 15
2
In the Uttar Pradesh Judicial Service Rules, 2001,
hereinafter referred to as the said rules, for the
existing rule 15 set out in column 1 below, the rule as
set out in column
2 shall be substituted, namely:-

COLUMN 1
Existing rule
COLUMN 2
Rule as hereby substituted
Determination of vacancies

15. The Governor shall, in consultation with
the Court, determine and intimate to the
Commission the number of vacancies in the
posts of Civil Judge (Junior Division) to be
filled in during the year of recruitment as
also the number of vacancies to be reserved
for candidate belonging to Scheduled Caste,
Scheduled Tribes and other categories.
Determination of vacancies

15.(1) The Governor shall, in consultation
with the Court, determine and intimate to the
Commission the number of vacancies in the
posts of Civil Judge (Junior Division) to be
filled in during the year of recruitment as
also the number of vacancies to be reserved
for candidate belonging to Scheduled Caste,
Scheduled Tribes and other categories.

(2) While determining the vacancies in the
posts of Civil Judge (Junior Division) to be
filled in during the year of recruitment, the
existing
number
of
vacancies
plus
anticipated vacancies for the next one year
be included.

Amendment 3. of
rule 20
In the said rules in rule 20 for the existing sub-rule (3) set
out in column 1 below the sub-rule as set out in column 2
shall be substituted

COLUMN 1
Existing sub-rule
COLUMN 2
Sub-rule as hereby substituted
(3) The Commission then shall prepare a
final list of selected candidates in order of
their proficiency as disclosed by aggregate
of marks finally awarded to each candidate
in the written examination and the interview:

Provided that if two or more candidates
obtain equal marks in the aggregate, the
name of the candidate being elder in age,
shall be placed higher:

Provided further that if two or more
(3) The Commission then shall prepare a
final list of selected candidates in order of
their proficiency as disclosed by aggregate
of marks finally awarded to each candidate
in the written examination and the interview.

NOTE- The wait list shall be prepared
category-wise i.e. for Scheduled Castes,
Scheduled Tribes and other categories. The
wait-list shall be utilized only in case, the
candidates in the select list do not join the
posts and shall not be utilized for any
84 INDIAN LAW REPORTS ALLAHABAD SERIES
candidates of equal age obtain equal marks
in the aggregate, the name of the candidate,
who has obtained higher marks in the written
examination, shall be placed higher.
subsequent vacancies.

Provided that if two or more candidates
obtain equal marks in the aggregate, the
name of the candidate being elder in age,
shall be placed higher:

Provided further that if two or more
candidates of equal age obtain equal marks
in the aggregate, the name of the candidate,
who has obtained higher marks in the written
examination, shall be placed higher.

13. A bare perusal of the Rules, quoted above, would go to show that the Governor
in consultation with the Court would determine and intimate to the Commission the number
of vacancies in the posts of Civil Judge (Junior Division) to be filled in during the year of
recruitment as also the number of vacancies to be reserved for candidate belonging to
Scheduled Castes, Scheduled Tribes and other categories at the point of time when
vacancies are to be determined in the posts of Civil Judge (Junior Division) to be filled in
during the year of recruitment, the existing number of vacancies plus anticipated vacancies
for the next one year is to be included. The Commission after undertaking the process of
examination/interview is obliged to prepare a list of finally selected candidates alongwith a
wait-list of 10% of the existing vacancies in order of their proficiency as disclosed by
aggregate of marks finally awarded to each candidate in the written examination and the
interview. The wait-list is to be prepared categorywise i.e. for Scheduled Castes, Scheduled
Tribes and other categories. The wait-list is to be utilized only in case, the candidates in the
select list do not join the posts and shall not be utilized for any subsequent vacancies. It also
further provides for that if two or more candidates obtained equal marks in the aggregate,
the name of the candidate being elder in age shall be placed higher and further that if two or
more candidates of equal age obtained equal marks in the aggregate, the name of the
candidate, who has obtained higher marks in the written examination, is to be placed higher.

13(a). At this juncture, we also proceed to examine the Government Orders dated
31.1.1994 and 15.11.1999, which are as follows;

"उत्तर प्रदेश शासन
कार्र्मिक अनुभाग&4
सींख्या-1760-आ/47-का-4-93-28-5-1980
 लखनऊ]कदनाींक 31 िनिर ,1994
कायािलय-ज्ञाप
3 All. Nadeem Anwar Vs State Of U.P. & Anr.
85
अघोहस्ताक्षर को यह कहने का र्नदेश हुआ है कक लोक सेिा आयोग द्वारा आयोल्ित
प्रर्तयोर्गतात्र्मक पर क्षाओीं तथा अन्य चयनों के आधार पर चयर्नत अभ्यर्थियों को र्नयुवि प्रदान
करने, कायिभार ग्रहण करने, र्नल्ित अिर्ध र्में कायिभार ग्रहण न करने पर अभ्यथिन र्नरस्त
ककये िाने एिीं प्रतीक्षा सूची के उपयोग हेतु सर्मय र्नधािररत करने आकद के सींबींध र्में शासनादेश
कदनाींक 29.8.92 िार ककया था। उि शासनादेश के प्राविधानों के अनुसार कायिाह ककये िाने र्में
कर्तपय व्यिहाररक ककिनाइयाीं शासन के सींज्ञान र्में आ रह है, अः शासन द्वारा उि व्यिहाररक
ककिनाइयों के र्निारणाथि सम्यक् विचारोपरान्त र्नम्नर्लल्खत र्नणिय र्लये गये हैंSa%&
(1) विभागों द्वारा उपलब्ध पदों की सह गणना सुर्नल्ित करने के उपरान्त ह आयोग को
अर्धयाचन भेिा िाय। अर्धयाचन भेिे िाने के उपरान्त उर्धयार्चत ररवियों के विरूद्य िो
चयर्नत अभ्यथी सल्म्र्मर्लत पर क्षा के आधार पर विभाग को उपलब्घ कराये िायेंगे, विभाग को
उन्हें र्नयुवि प्रदान करनी ह होगी। र्सिाय उन र्मार्मलों के जह ां सींबींर्धत विभाग/सींस्था/सींगिन
पूणि रूप से सर्माप्त कर कदया गया हो या जह ाँ एकल पर के र्लये आयोल्ित चयन के आधार पर
चयर्नत अभ्यथी आयोग ने सींस्तुत ककया हो वह ां अर्धयार्चत पद ह सर्माप्त कर कदया गया हो।
सींबींर्धत विभाग/सींस्था/सींगिन को सर्माप्त ककये िाने अथिा अर्धयावित पदों को ह सर्माप्त ककये
िाने का र्नणिय शासन द्वारा र्लये िाने की दशा र्में अर्धयार्चत पदों पर चयन की कायिाह
तत्काल रोकने हेतु विभागों द्वारा आयोग से सम्पकि ककया िायेगा और यकद चयर्नत अभ्यथी की
सींस्तुर्त विभाग र्में प्राप्त हो गई हो, तत्काल आयोग को सूर्चत ककया िायेगा, ताकक यकद
सल्म्र्मर्लत प्रर्तयोगी पर क्षा के आधार पर चयन हुआ हो तो आयोग द्वारा सींबींर्धत अभ्यथी के
विषय र्में सर्मय से ररशफर्लींग की कायिाह कर सींशोर्धत सींस्तुर्त/सींस्तुर्तयाीं की िा सके। परन्तु
िहाीं न्यायालय के आदेशों के आधार पर अर्धयार्चत पदों को अन्यथा भर र्लया गया हो िहींाा
आयोग द्वारा सींस्तुत अभ्यर्थियों को र्नयुवि प्रदान ककये िाने की बाध्यता न होगी।
(1) विभागों द्वारा उपलब्ध पदों की सह गणना सुर्नल्ित करने के उपरान्त ह आयोग को
अर्धयाचन भेिा िाय। अर्धयाचन भेिे िाने के उपरान्त उर्धयार्चत ररवियों के विरूद्य िो
चयर्नत अभ्यथी सल्म्र्मर्लत पर क्षा के आधार पर विभाग को उपलब्घ कराये िायेंगे, विभाग को
उन्हें र्नयुवि प्रदान करनी ह होगी। र्सिाय उन र्मार्मलों के जह ां सींबींर्धत विभाग/सींस्था/सींगिन
पूणि रूप से सर्माप्त कर कदया गया हो या जह ां एकल पर के र्लये आयोल्ित चयन के आधार पर
चयर्नत अभ्यथी आयोग ने सींस्तुत ककया हो वह ां अर्धयार्चत पद ह सर्माप्त कर कदया गया हो।
86 INDIAN LAW REPORTS ALLAHABAD SERIES
सींबींर्धत विभाग/सींस्था/सींगिन को सर्माप्त ककये िाने अथिा अर्धयावित पदों को ह सर्माप्त ककये
िाने का र्नणिय शासन द्वारा र्लये िाने की दशा र्में अर्धयार्चत पदों पर चयन की कायिाह
तत्काल रोकने हेतु विभागों द्वारा आयोग से सम्पकि ककया िायेगा और यकद चयर्नत अभ्यथी की
सींस्तुर्त विभाग र्में प्राप्त हो गई हो, तत्काल आयोग को सूर्चत ककया िायेगा, ताकक यकद
सल्म्र्मर्लत प्रर्तयोगी पर क्षा के आधार पर चयन हुआ हो तो आयोग द्वारा सींबींर्धत अभ्यथी के
विषय र्में सर्मय से ररशफर्लींग की कायिाह कर सींशोर्धत सींस्तुर्त/सींस्तुर्तयाीं की िा सके। परन्तु
िहाीं न्यायालय के आदेशों के आधार पर अर्धयार्चत पदों को अन्यथा भर र्लया गया हो िहींाा
आयोग द्वारा सींस्तुत अभ्यर्थियों को र्नयुवि प्रदान ककये िाने की बाध्यता न होगी।
(3) स्िास््य पर क्षण तथा पुर्लस िेर कफकेशन सर्मानान्तर रूप से ककया िायेगा, ल्िससे इसर्में
विलम्ब न हो।
(4) प्रतीक्षा सूची प्रकार्शत नह ीं की िायेगी तथा बींद र्लफाफों र्में आयोग र्में उपलब्ध रहेगी।
आिश्यकतानुसार आयोग द्वारा प्रतीक्षा सूची र्में से अभ्यर्थियों के नार्म शासन को यथासर्मय
उपलब्ध कराये िायेंगेA
(5) प्रतीक्षा सूची केिल एक िषि के र्लए िैध होगी चाहे प्रर्त िषि होने िाले प्रर्तयोर्गतात्र्मक
पर क्षा से सींबींर्धत हो अथिा ककसी चयन विशेष से। कर्तपय र्मार्मलों र्में यह देखा गया है कक
विभागों द्वारा र्नधािररत अिर्ध के अन्दर आयोग से प्रतीक्षा सूची से नार्म र्माींग र्लए िाने पर भी
आयोग द्वारा र्नधािररत एक िषि की अिर्ध र्में प्रतीक्षा सूची से नार्म उपलब्ध नह ीं कराये िाते।
अतः उि सर्मस्या के सर्माधान हेतु ल्िन र्मार्मलों र्में विभाग द्वारा र्नधािररत एक िषि की अिर्ध के
अन्दर यकद आयोग से प्रतीक्षा सूची से नार्म र्माींग र्लए गये हों, ककन्तु आयोग ने र्नधािररत अिर्ध
र्में नार्म उपलब्ध न कराया हो, ऐसे र्मार्मलों र्में प्रतीक्षा सूची एक िषि के बाद भी िैध होगीA
1⁄461⁄2 यकद र्नधािररत अिर्ध र्में प्रतीक्षा सूची का उपयोग नह ीं होता है अथिा र्नधािररत अिर्ध र्में
विभागों द्वारा आयोग से नार्म नह ीं र्माींग र्लया िाता है तो िो भी ररवियाीं रह िायेंगी िह अगले
िषि के र्लए अगे्रनीत र्मानी िायेंगी। कृपया उपयुिानुसार कायिाह प्रत्येक स्तर पर सुर्नल्ित
करायी िाये। उि आदेश तात्कार्लक प्रभाि से लागू होंगे तथा इस सींबींध र्में पूिि र्में सभी
शासनादेश र्नरस्त सर्मझे िायेंगेA
आर0बी0भाष्कर
3 All. Nadeem Anwar Vs State Of U.P. & Anr.
87
सचिव।
 उत्तर प्रदेश शासन
कार्मिक अनुभाग&4
संख्या-28/5/80-का4/1999
लखनऊ. र्दनांक 15 नवम्बर. 1999
कायािलय-ज्ञाप
लोक सेवा आयोग. उ0 प्र0 द्वारा आयोचित प्रचतयोचगतात्मक परीक्षाओं तथ अन्य ियनों के आधार पर
ियचनत अभ्यचथियों को चनयुचि प्रदान करने एवं प्रतीक्षा सूिी से नाम मांगने सम्बंधी पूवि में चनगित
शासनादेशों के अनुपालन में आने वाली कचिनाइयों को ध्यान में रखते हुए शासन द्वारा यह चनर्िय चलया
गया है, चक एकल संवगो के पदों को छोडकर, अन्य समस्त सचम्मचलत सेवाओं एवं अन्य ियनों में प्रतीक्षा
सूिी का चनमािर् नही चकया िायेगा और न ही चकसी प्रकार की ररशफचलंग की कायिवाही की िायेगी।
 2-
उपयुि के सम्बंध में पूवि में चनगति समस्त शासनादेशों को अवक्रचमत करते हुए, शासन द्वारा चलये
गये अन्य महत्वपूर्ि चनर्िय चनम्नवत हS%
(1) चकसी ियन वर्ि चवेशेर् में घचित होने वाली ररचियों की सही गर्ना सुचनचित करने के उपरान्त ही
आयोग को अचधयािन भेिा िाय। अचधयािन भेिे िाने के उपरान्त यथासम्भव ररचियों में कोई पररवतिन
न चकया िायA
1⁄421⁄2 ियचनत अभ्यचथियों की संस्तुचतयां प्राप्त होने के उपरान्त उन्हें कायिभार अवश्य ग्रहर् कराया िाय,
चसवाय उन मामलों के िहां सम्बंचधत चवभाग या संस्था या संगिन को पूर्िरूप से समाप्त कर चदया गया हो
अथवा चकसी न्यायालय द्वारा कोई अन्यथा आदेश चदये गये हों।
1⁄431⁄2 सम्बंचधत चवभागों द्वारा संस्तुचतयां या आवंिन प्राप्त होने के तीन माह के अन्दर चनयुचि आदेश
िारी करना सुचनचित चकया िाय तथा अभ्यथी को प्रथमतः कायिभार ग्रहर् करने हेतु एक माह का समय
प्रदान चकया िाय, चिसे अपररहायि पररचस्थचतयों में एक माह तक और बढाने पर चविार चकया िा सकता
है।
 1⁄441⁄2 ियचनत अभ्यचथियों के िररत्र सत्यापन एवं स्वास्थ परीक्षर् कराने के उपरान्त ही चनयुचि पत्र िारी
चकए िायं।
88 INDIAN LAW REPORTS ALLAHABAD SERIES
1⁄451⁄2 चनधािररत अवचध में कायिभार ग्रहर् न करने वाले अभ्यचथियों के अभ्यथिन चनरस्त करते हुए, घचित
चनचियों को आगामी ियन वर्ि हेतु अग्रेनीत कर चदया िाय।
1⁄461⁄2 ियन सूिी का उपयोग उसी ियन वर्ि की ररचियों के चवरूद्ध चकया िाय, चिसके चलए अचधयािन
भेिा गया हो / ियन चकया गया हो।
3 उपयुि आदेश तत्काल प्रभाव से प्रभावी होगें।
4 उपयुि आदेशों का प्रत्येक स्तर पर कडाई से अनुपालन सुचनचित चकया िाय।
ह0
 सुधीर कुमार,
सर्िव।"

14. A perusal of the aforesaid Government Orders would show that in order to
streamline the process of recruitment pursuant to combined competitive examination
conducted by the Commission involving number of services, certain directions were issued
from time to time. On the recommendation made by the Commission in respect to the
selected candidates, the Government used to forward recommendation to the respective
Departments, wherefrom the appointment letters are issued by the competent authority to the
selected candidates, whose names are recommended by the Commission after completing all
other formalities, like character verification, police verification of antecedents and medical
examination etc. However, sometimes candidates offered appointment failed to join service
for various reasons and the vacancy remain unfilled. The concerned department informs the
Government about non-joining of such selected candidates, who were issued letters offering
appointment and thereafter only the Government used to seek further recommendation of the
Commission from the waiting list, if any. Some times the entire process used to take lot of
time and in the meantime the next recruitment process used to start causing a practical
difficulty in making the said recruitment final. To mitigate such a situation, the State
Government issued Government Order 1994 communicating its decision namely: (1) where
the recommendation has been received from the Commission, the concerned department has
to issue letter of appointment except where the department itself has been abolished or
where the selection has been made by the Commission for single post or notified post and it
has been abolished. (2) Such appointment letters shall be issued by the concerned
department after receiving allotment within three months thereof and the candidates shall be
offered one month's time to join extendable by one month for unavoidable circumstances.
(3) Thereafter, the candidature, in case of non-joining, shall be cancelled and the copy of
such order shall be sent to the Commission with the request to send names from the waiting
list. (4) The waiting list shall not be published by the Commission but shall be kept by it in a
sealed cover and required names shall be sent to the Government as and when requisitioned
from it. (5) Such waiting list shall be valid for one year only where the recruitment process
is to be held on annual basis or if it a special selection. (6) However, in case where the
requisition has been sent to the Commission against unfilled vacancies requesting to send
additional names from waiting list within a period of one year, in such case, the life of wait
3 All. Nadeem Anwar Vs State Of U.P. & Anr.
89
list shall be treated to have been extended beyond one year, inasmuch as, the Commission
may send recommendation even after expiry of one year. (7) Where no information has been
received from the concerned department requisitioning any candidate from the wait list, the
unfilled vacancies shall be carried forward and be filled in the next recruitment.
Subsequently, a query was made as to whether a vacancy occurred during the validity of life
time of the wait list due to resignation of a candidate who was appointed pursuant to the
recommendation made by the Commission, would such a vacancy be filled in from the
waiting list. By a Government Order No. 28/5/80-Ka-4-1997 dated 23.12.1997 the
Government conveyed its decision that once a candidate, who has been offered appointment
joins, the vacancy in the concerned recruitment comes to an end and if such a person
subsequently resign, even within one year from the date of preparation of the select list, such
vacancy being a fresh one occurring in a different recruitment year, shall not be filed in from
the wait list.

15. On the parameters of the Rules in question and in the light of the Government
Orders the claim of petitioner is being adverted to. Under The Uttar Pradesh Judicial Service
(Second Amendment) Rules, 2012, the Commission is obliged to prepare a final list of
selected candidates alongwith wait-list of 10% of existing vacancies in order of their
proficiency as disclosed by aggregate of marks finally awarded to each candidate in the
written examination and the interview. The Commission, in the present case, has not at all
proceeded to prepare the wait-list in consonance with the Rules in question, whereas,
requisition has been sent of 125 posts for U.P. Civil Judge (Junior Division) for being
appointed as Civil Judge (Junior Division) under U.P. Nyayik Sewa, in this background,
after the final selection has been made, then Commission ought to have prepared final list of
125 selected candidates alongwith wait-list of 10% of existing vacancies, in order of their
proficiency as disclosed by aggregate of marks finally awarded to each candidate in the
written examination and the interview. Law on the subject is clear that wait-listed candidates
have no vested right to be appointed except when a selected candidate does not join while
the select-list is still operative. See Sri Kant Tripathi Vs. State of U.P. & Others, 2001 (10)
SCC 337. A waiting list prepared by the Commission is to be operative only for the
contingency that if any of the selected candidate does not join then the persons from the
waiting list could be pushed up and be appointed against the vacancies requisitioned and
against which recommendation has already been made by the Commission. The U.P.
Judicial Service Rules, 2001 has a peculiar characteristic, inasmuch as, Sub-rule (2) of Rule
21 clearly proceeds to make a mandate that the select list prepared under Sub-rule (3) of
Rule 20 shall lapse after all the vacancies advertised or varied after due notification, are
filled up, in view of this, the life span of select list has been provided for by the Rules under
Sub-rule (2) of Rule 21 and the said select list prepared under Sub-rule (3) of Rule 20 will
lapse after all the vacancies advertised or varied after due notification, are filled up and not
at all beyond the same. The life of the select list stands determined by the Rules and, in view
of this, once the life span of select list stands determined by the Rules, then any executive
instructions or policy decision taken by the Commission in the shape of Government Orders
dated 31.1.1994 and 15.11.1999 would be of no avail.
90 INDIAN LAW REPORTS ALLAHABAD SERIES

16. These Government Orders in question would not at all be applicable in reference of
the life span of the select list in question. Once the Rules in question are specific and the
law on the subject is clear that in case any executive instructions are running counter to the
statutory Rules, then executive instructions should give way to the statutory Rules in
question. Apex Court in the case of Ram Ganesh Triapthi Vs. State of U.P.