# Priyadarshini Singh v. State of U.P. & Ors

- **Citation:** (2023) 9 ILRA 414
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-17
- **Case number:** Writ-A No. 18972 of 2022
- **Bench:** Saral Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/priyadarshini-singh-v-state-of-u-p-ors-50806
- **Pages:** 14

## Headnote

Law
-
UP
Subordinate
Education (Associate District Inspector of
Schools) Service Rules, 1992 - Rule 15(3)
- Post of Block Education Officer -
Appointment - Number of vacancy -
Selection list - Waiting list consisting of
more
selected
candidates
was
not
prepared - Validity challenged - No
provision in the Rule of 1992 stipulating
the preparation of the waiting list - Effect
- Held, a reading of Rule 15(3) of the
Rules, 1992 unequivocally suggests that
the select list to be forwarded by the
Commission to the appointing authority
shall comprise of names more than the
number of vacancies but not more than
25% thereof, which signifies that select
list should contain more number of
candidates than the number of vacancy
advertised - Further held, the action of
the respondents in not preparing waiting
list in compliance with R. 15(3) is
arbitrary and against the spirit of the said
Rule. (Para 26 and 44)

Writ petition allowed. (E-1)

List of Cases cited:

## Text

_Characters 0–39,973 of 47,098. This is a partial read: ask again with offset=39973 for what follows._

414 INDIAN LAW REPORTS ALLAHABAD SERIES
services rendered as work charged should
be considered and/or counted for the
purpose of pension / quantum of pension is
concerned, the same cannot be accepted. If
the same is accepted, in that case, it would
tantamount to regularizing their services
from the initial appointment as work
charged. As per the catena of decisions of
this Court, there is always a difference and
distinction between a regular employee
appointed on a substantive post and a work
charged employee working under work
charged establishment. The work charged
employees
are
not
appointed
on
a
substantive post. They are not appointed
after due process of selection and as per
the recruitment rules. Therefore, the
services rendered as work charged cannot
be counted for the purpose of pension /
quantum of pension. However, at the same
time, after rendering of service as work
charged for number of years and thereafter
when their services have been regularized,
they cannot be denied the pension on the
ground that they have not completed the
qualifying service for pension. That is why,
the service rendered as work charged is to
be counted and/or considered for the
purpose of qualifying service for pension,
which is provided Under Rule 5(v) of the
Rules, 2013.

6.3. Now, insofar as the reliance
placed upon the decision of this Court in
the case of Prem Singh (supra) by the
learned Counsel appearing on behalf of
the Appellants is concerned, the reliance
placed upon the said decision is absolutely
misplaced. In the said case, this Court was
considering the validity of Rule 3(8) of the
U.P. Retirement Benefit Rules, 1961,
under which the entire service rendered as
work charged was not to be counted for
qualifying service for pension. To that,
this Court has observed and held that after
rendering service as work charged for
number of years in the Government
establishment / department, denying them
the pension on the ground that they have
not completed the qualifying service for
pension would be unjust, arbitrary and
illegal. Therefore, this Court has observed
and held that their services rendered as
work charged shall be considered /
counted for qualifying service. This Court
has not observed and held that the entire
service rendered as work charged shall be
considered / counted for the quantum of
pension / pension. The decision of this
Court in the case of Prem Singh (supra),
therefore, would be restricted to the
counting of service rendered as work
charged
for
qualifying
service
for
pension."

 (emphasis added)

11. In view of above, I do not find
force in the argument advanced by
learned counsel for the petitioner. The
petition lacks merit and is accordingly
dismissed.
----------
(2023) 9 ILRA 414
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.08.2023

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

Writ-A No. 18972 of 2022

Priyadarshini Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Durga Prasad Singh, Sri Ashok Khare (Sr.
Advocate)

Counsel for the Respondents:
C.S.C., Sri M.N. Singh
9 All. Priyadarshini Singh Vs. State of U.P. & Ors.
415
A.
Service
Law
-
UP
Subordinate
Education (Associate District Inspector of
Schools) Service Rules, 1992 - Rule 15(3)
- Post of Block Education Officer -
Appointment - Number of vacancy -
Selection list - Waiting list consisting of
more
selected
candidates
was
not
prepared - Validity challenged - No
provision in the Rule of 1992 stipulating
the preparation of the waiting list - Effect
- Held, a reading of Rule 15(3) of the
Rules, 1992 unequivocally suggests that
the select list to be forwarded by the
Commission to the appointing authority
shall comprise of names more than the
number of vacancies but not more than
25% thereof, which signifies that select
list should contain more number of
candidates than the number of vacancy
advertised - Further held, the action of
the respondents in not preparing waiting
list in compliance with R. 15(3) is
arbitrary and against the spirit of the said
Rule. (Para 26 and 44)

Writ petition allowed. (E-1)

List of Cases cited:

1. S.K. Nausad Rahman & ors. Vs U.O.I.& ors.;
(2022) 12 SCC 1

2. Jata Shankar Vs St. of U.P. & ors.; 2013 SCC
Online All 3526

3. Nadeem Anwar Vs St. of U.P. through
Secretary, Department of Govt. U.P. Lucknow &
anr.; 2016 SCC Online All 3001

4. Writ A No. 22128 of 2018; Sanjay Kumar &
ors. Vs St. of U.P. & ors.

5. Sheo Shyam Vs St. of U.P.; 2005 (10) SCC
314

6. St. of U.P. Vs Karunesh Kumar & ors.; 2023
(1) ADJ 389 SC

(Delivered by Hon'ble Saral Srivastava, J.)

1. Heard Sri Ashok Khare, learned
Senior Counsel assisted by Sri Durga
Prasad Singh, learned counsel for the
petitioner, Sri Shrawan Kumar Dubey,
learned Additional Chief Standing Counsel
for the State-respondent nos.1 & 2 and Sri
M.N. Singh, learned counsel for the
respondent no.3.

2. The petitioner through the present
writ petition has prayed for a writ of
mandamus directing the respondent no.1Additional
Chief
Secretary
(Basic
Education), U.P. Government, Lucknow to
publish a waiting list for the post of Block
Education
Officer
(Khand
Shiksha
Adhikari) and further direction to select the
petitioner on the post which remains vacant
on account of non-joining of selected
candidates.

3. The facts in brief of the case are
that U.P. Public Service Commission,
Prayagraj
(hereinafter
referred
to
as
'Commission') published a Notification
No.A-4/E-1/2019 dated 13.12.2019 for 309
posts of Block Education Officer. The
petitioner
possessing
the
requisite
qualifications, applied to be considered for
the said post. The petitioner was issued an
admit card bearing Roll No.012946. She
appeared in the preliminary examination
conducted by the Commission, which she
qualified.
Thereafter,
the
petitioner
appeared in the main examination held on
06.11.2020.
The
Commission
on
30.01.2021 declared the list of 309
candidates qualified for the said posts.
However, the petitioner did not qualify as
according to the petitioner, she appeared as
a general category candidate and secured
207 marks whereas the last selected
candidate in the general category secured
208 marks.

4. Further case of the petitioner is that
respondent no.2-Additional Director of
416 INDIAN LAW REPORTS ALLAHABAD SERIES
Education (Basic), Prayagraj issued letters
to 271 candidates for appointment to the
post of Block Education Officer against
309 successful candidates, therefore, 38
posts of Block Education Officer are vacant
as
per
the
appointment
list
dated
12.03.2021.

5. The petitioner further claims that in
an identical controversy State of U.P. has
given
appointment
to
one
Radha
Kulshresththa,
who
appeared
in
the
examination for the post of Civil Judge
(Junior
Division)
conducted
by
the
Commission and claimed appointment on
two vacancies which remained vacant after
joining of successful candidates. When the
Commission did not pay any heed to her
request, she preferred Writ-A No.2008 of
2022 and during the pendency of the said
writ petition, a statement was made by the
counsel for the Commission that her name
has been recommended for appointment as
Civil
Judge
(Junior
Division),
and
therefore, the petitioner is also entitled to
parity with petitioner-Radha Kulshresththa
in Writ-A No.2008 of 2022.

6. A short counter affidavit dated
11.04.2023
was
filed
on
behalf
of
respondents nos.1 & 2, stating therein that
in the selection under Notification No.A4/E-1/2019
dated
13.12.2019,
309
candidates were declared provisionally
successful/selected for appointment against
the 309 posts of Block Education Officer
by the Commission out of which selection
against 159 posts of general category were
made.

7.

The
State
Government
in
paragraphs nos.6 to 11 of the short counter
affidavit
has
given
details
of
recommendation by the Commission and
date of appointment letters issued to the
candidates which are as follows:

Sl.
No.
Date
of
Recomme
ndation
by
the
Commissi
on
No.
of
Candid
ates
recomm
ended
by
the
Commis
sion
Date
of
Appoi
ntment
Letter
s
No. of
candid
ates
for
whom
appoi
ntment
letters
were
issued
.
1.
03.03.202
1
271
12.03.
2021
271
2.
19.04.202
1
24
25.05.
2021
23
3.
24.06.202
1
3
24.08.
2021
4
4.
09.11.202
1
6
10.12.
2021
5
5.
21.01.202
1
1
10.02.
2021
5
6.
24.11.202
2
3
23.03.
2023
3

8. It is further stated that in pursuance
to the recommendation received by the
Commission,
the
Directorate
issued
appointment letters to 159 candidates for
general category posts, out of which 156
candidates have joined, but 03 candidates
have not submitted their joining so far.

9. A detailed counter affidavit has also
been filed by the respondent nos.1 & 2
reiterating the facts which have been stated
in the short counter affidavit dated
11.04.2023. Another short counter affidavit
has also been filed on 03.05.2023 wherein
9 All. Priyadarshini Singh Vs. State of U.P. & Ors.
417
it has been stated that selection on the post
of Block Education Officer is governed by
U.P. Subordinate Education (Associate
District Inspector of Schools) Service
Rules, 1992 (hereinafter referred to as
'Rules, 1992). It is further stated that under
Government Order No.28/5/80-Ka-4-1999
dated 15.11.1999, no waiting list shall be
prepared in combined services and other
selections except on a selection of single
cadre post. It is further stated that the
Directorate by letter dated 25.02.2022 sent
a requisition for 34 vacant posts of Block
Education Officer to the Commission.
Accordingly, it is stated that the petitioner
cannot be selected for the post of Block
Education Officer, and the writ petition
lacks merit and deserves to be dismissed.

10. The Commission has also filed a
counter affidavit stating therein that after
completing the selection process, the final
result of the selection in question was
declared on 30.01.2021. It is further stated
that so far as the unreserved/general
category vacancies are concerned, there is
no vacancy pending at the level of the
Commission. It is also stated that the
waiting list is considered to be valid only
for one year, and if the department does not
send any proposal to the Commission to
send names within the specified period, the
remaining vacancies, if any, will be
considered as carry forward for the next
year as per provisions contained in
paragraph no.5 & 6 of the Government
Order dated 31.01.1994.

11. In the rejoinder affidavit filed by
the petitioner, it is stated that Rule 15 (3) of
Rules, 1992 clearly stipulates that after
receiving
the
result
of
the
written
examination, the Commission shall prepare
the merit list based on marks obtained by
the
selected
candidates
in
written
examination against notified vacancy. The
select
list
recommended
by
the
Commission
should
contain
more
candidates than the vacancies advertised,
but not exceeding 25% more than the
advertised vacancy. It is further stated that
Rules, 1992 would prevail over the
Government Order dated 15.11.1999, and
therefore, the Commission ought to have
prepared the merit list in compliance with
Rule 15 (3) of the Rules, 1992.

12. Sri Ashok Khare, learned Senior
Counsel for the petitioner has contended
that it is admitted on record that selection
for the post of Block Education Officer is
governed and regulated by Rules, 1992. He
submits that Rule 15(3) of Rules, 1992
stipulates that after the declaration of the
result of the written examination, the
Commission shall prepare the merit list
based on marks obtained by the candidates
and shall recommend the number of
candidates as the Commission may deem
fit. It further stipulates that if two or more
candidates
secure
equal
marks,
the
Commission shall place them in the merit
list as per their merit. The list of selected
candidates should contain more number of
candidates than the vacancies advertised,
but not larger than 25% of the vacancies
advertised. Accordingly, it is submitted that
Rules, 1992 prescribes that the select list
should be of larger candidates than the total
number of vacancies advertised subject to a
maximum of 25% over and above it,
therefore, the action of the Commission in
not publishing a waiting list is arbitrary and
dehors the Rules, 1992.

13. It is further submitted that it is
admitted on record that three vacancies are
still lying vacant, and if the Commission
had prepared the waiting list of selected
candidates, the petitioner, who had secured
418 INDIAN LAW REPORTS ALLAHABAD SERIES
one mark less than the last selected
candidate in the general category would
have been selected on the said post. He
submits that the stand of the respondent
that Rules, 1992 does not prescribe the
preparation of a waiting list is incorrect. He
further contends that the Government Order
dated 15.11.1999 prohibits the preparation
of a waiting list only in cases where
combined selection is made to various
posts, but said rider would not be
applicable in cases where selection is in
respect to post in a single cadre, and as in
the instant case, the selection is concerning
the post of Block Education Officer which
is a single cadre post, therefore, the said
Government Order is not applicable.

14. He further submits that the stand
of
the
respondents
that
under
the
Government Order dated 15.11.1999, a
waiting list can be prepared only in cases
where selection is made for one post in a
single cadre is incorrect as the reading of
Government
Order
dated
15.11.1999
suggests that the word ''एिि संवर्ो िे पदों िो
छोड़िर'' mentioned in the Government Order
dated 15.11.1999 refers to a selection to the
post in a single cadre. He, in the alternative,
submits that once Rule 15(3) of the Rules,
1992
specifically
provides
for
the
preparation of a waiting list, Government
Order 15.11.1999 cannot prevail over the
Rules,
1992,
and
therefore,
the
Commission ought to have prepared the
waiting list. Accordingly, it is contended
that the petitioner is entitled to the relief as
prayed for in the present writ petition.

15. In support of the aforesaid
contention,
learned
counsel
for
the
petitioner has placed reliance upon the
following judgements:-

i. S.K. Nausad Rahman and Others
Vs. Union of India and Others (2022) 12
SCC 1;

ii. Jata Shankar Vs. State of U.P. and
others 2013 SCC Online All 3526;

iii. Nadeem Anwar Vs. State of U.P.
through Secretary, Department of Govt.
U.P. Lucknow and Another 2016 SCC
Online All 3001;

iv. Sanjay Kumar and Others Vs.
State of U.P. and Others passed in Writ-A
No.22128 of 2018;

v. Sheo Shyam Vs. State of U.P. 2005
(10) SCC 314.

16. Per contra, learned Additional
Chief Standing Counsel would contend that
the selection on all advertised posts has
been made, and as the petitioner did not
obtain minimum cut-off marks, therefore,
she was not selected. He submits that there
is no provision in Rules, 1992 which
mandates the preparation of a waiting list
by the Commission. He further contends
that
the
Government
Order
dated
15.11.1999 is specific and clear and
provides that a waiting list shall not be
prepared with respect to all selections
except where the selection is made on one
post in a single cadre. In support of his
aforesaid contention, he has placed reliance
upon the judgement of the Apex Court in
the case of State of U.P. Vs. Karunesh
Kumar and Others 2023 (1) ADJ 389 SC.

17. Sri M.N. Singh, learned Counsel
for the Commission submits that the
validity period of the waiting list is one
year, and as the result of selection was
declared on 30.01.2021 and one year period
has expired, therefore, no direction as
sought by the petitioner can be issued by
this Court.
9 All. Priyadarshini Singh Vs. State of U.P. & Ors.
419

18. To the aforesaid submission, Sri
Ashok Khare, learned Senior Counsel for
the petitioner has contended that the
validity of the waiting list should be
computed from the date of last requisition
and not from the date of first requisition.

19. I have considered the rival
submissions of the parties and perused the
record.

20. The facts as emerge from the
record are that under Advertisement No.A4/E-1/2019 dated 13.12.2019, the petitioner
applied
for
being
considered
for
appointment to the post of Block Education
Officer. The petitioner qualified for the
preliminary examination, and she appeared
in the main examination in which she
secured 207 marks, whereas the last
selected candidate in the general category
secured 208 marks. According to the
petitioner, as against 309 vacancies, only
271
candidates
have
been
issued
appointment letters, and 38 posts are still
lying vacant therefore, the petitioner is
liable to be adjusted on the vacant posts.

21. In the short counter affidavit dated
11.04.2023 filed on behalf of respondents
nos.1 & 2, it is stated in paragraph no.13
that three general candidates have not
submitted their joining so far, meaning
thereby even as per the case of the
respondents, three posts of general category
have not been filled-up against the
advertisement No.A-4/E-1/2019.

22. Now, before proceeding with the
matter, it would be appropriate to reproduce
Rule 15 of the Rules, 1992:-

"15 - आयोग के माध्यम से सीधी भर्ती की
प्रक्रिया

15. (1) प्रजतयोजगता परीिा में सजम्मजलत होने की
अनुमजत के जलए आवेदन के जलए आवेदन पत्र आयोग द्वारा
िारी जवज्ञापन में प्रकाजशत प्रपत्र में आमजन्त्रत जकये िायेगे।

(2) जकसी र्ी अभ्यथी को परीिा में सजम्मजलत नहीं
जकया िायेगा िब तक जक उसके पास आयोग द्वारा िारी जकया
गया प्रवेश पत्र न हो।

(3) जलजित परीिा के पररणाम प्राप्त हो िाने और
सारणीबद्ध कर जलए िाने के पिात आयोग अभ्यजथकयों की
उनकी प्रवीणता क्रम में िैसा जक जलजित परीिा में प्रत्येक
अभ्यथी द्वारा प्राप्त कुल अंकों से प्रकर् हो, एक सूची तैयार
करेगा और उतनी संख्या में अभ्यजथकयों को जितनी वह जनयुजक्त
के जलए उजचत समझे, संस्तुत करेगा। यकद दो या अकधि
अभ्यथी बराबर-बराबर अंि प्राप् िरे तो आयोर् उििे िाम,
सेवा के जलए उनकी सामान्य उपयुक्तता के आिार पर, योग्यता
क्रम में रिेगा। सूची में नामों की संख्या ररजक्तयों की संख्या से
अजिक ( जकन्तु पच्चीस प्रजतशत से अनाजिक) होगी। आयोग
सूची जनयुजक्त प्राजिकारी को अग्रसाररत करेगा।"

23. Rule 15(1) of the Rules, 1992
provides that an admit card shall be issued
by
the
Commission
permitting
the
candidates to appear in the examination.

24. Rule 15(2) of the Rules, 1992
provides that a candidate shall not be
allowed to appear in the examination unless
he possesses an admit card issued by the
Commission.

25. Rule 15 (3) of the Rules, 1992,
which is relevant in the instant case,
provides that after the declaration of the
result, the Commission shall prepare a
waiting list based on marks obtained by the
candidates and shall recommend as many
number of candidates as the Commission
may deem fit. In case two or more
candidates secure equal marks, then they
shall be placed on the merit list according
to their merit and suitability. It further
provides that the select list shall contain
larger number of candidates than the
number of vacancies advertised, but not
420 INDIAN LAW REPORTS ALLAHABAD SERIES
larger than 25% of the number of vacancies
for which selection has been made.

26. Though according to the stand of
the respondents, there is no provision in
Rules,
1992
which
stipulates
the
preparation of a waiting list in the selection
for the post of Block Education Officer
since Rule 15(3) of the Rules, 1992 does
not embody the specific word 'preparation
of waiting list'. However, a reading of Rule
15(3) of the Rules, 1992 unequivocally
suggests that the select list to be forwarded
by the Commission to the appointing
authority shall comprise of names more
than the number of vacancies but not more
than 25% thereof, which signifies that
select list should contain more number of
candidates as per Rule 15(3) of the Rules,
1992
than
the
number
of
vacancy
advertised.

27. This Court in the case of Jata
Shanker (supra) interpreted the identical
provision in U.P. Group-D Employees
Service Rules, 1985, and held that once
Rules stipulates for preparation of a waiting
list, the selection body is obliged to prepare
a waiting list as per Rules. The relevant
extract of the aforesaid judgement is
reproduced herein-below:-

"At the point of time when selection
process has been undertaken as per U.P.
Group D Employees Service Rules 1985,
there has been specific provision, which
provide for as follows;

"(4) The number of the candidates to
be selected will be larger (but not larger by
more than 25 percent) that the number of
vacancies for which the selection has been
made. The names in the select list shall be
arranged according to the marks awarded
at the interview."

A bare perusal of the aforementioned
provision quoted above would go to show
that number of candidates to be selected
will be larger but not larger by more than
25 percent that the number of vacancies for
which the selection has been made. This
provision in question clearly gives a cue
that a waiting-list has to be there but it
should not be larger i.e. more than 25
percent of the total vacancies. The said
provision has been done away with when
amendment in question has been introduced
under the Group 'D' Employees Service
(5th Amendment) Rules 1985 but before
enforcement of the same, the selection
process has already commenced and, in
view of this, the selection in question would
be covered and governed by unamended
U.P. Group D Employees Service Rules
1985 and as per the same there is a
provision to prepare a list, which would be
a larger list but not larger by more than 25
percent than the number of vacancies for
which selection is to be made. Apex Court
in the case of P. Mahendran and others Vs.
State of Karnataka 1990 (1) SCC 411 has
clearly explained that selection process
once it has commenced, then selection
would be governed by the Rules as it
existed on the date of commencement of
Rules, and amended Rules would apply
prospectively unless it is expressly or by
necessary implication to have retrospective
effect. Here the amendment introduced,
does not reflect either expressly or by
necessary implication to have retrospective
effect. In view of this, to say that there is no
provision of waiting-list cannot be accepted
by this Court.

The purpose of waiting-list is to see
and ensure that after selected candidates
have failed to join for whatever the reasons
there may be, then the candidates of
waiting-list can be offered appointment as
per their merit status. A candidate of
9 All. Priyadarshini Singh Vs. State of U.P. & Ors.
421
waiting-list
cannot,
however,
claim
appointment qua the vacancies, which have
fallen vacant, after the selected candidates
have joined. Apex Court time and again has
explained as to what is the object of
preparation of waiting list. In the case of
Surendra Singh Vs. State of Punjab 1997
(8) SCC 478, it has been ruled that a
waiting list prepared in an examination
does not furnish a source of recruitment. It
is only operative in contingency that if any
selected candidate does not join, then the
candidate from waiting list can be pushed
up. View to the similar effect has been
reiterated in the case of Sri Kant Tripathi
Vs. State of U.P. and others 2001 (10) SCC
237, by mentioning that wait list candidate
has no vested right to be appointed except
when selected candidate does not join
while the waiting list is still operative."

28. Similarly, in the case of Nadeem
Anwar (supra), this Court held that once
The Uttar Pradesh Judicial Service (Second
Amendment) Rules, 2012 mandates for the
preparation
of
a
waiting
list,
the
Commission is obliged to prepare a waiting
list. Paragraphs 12 to 14 of the said
judgement are reproduced herein below:-

"12. 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
422 INDIAN LAW REPORTS ALLAHABAD SERIES
the shape of Government Orders dated
31.1.1994 and 15.11.1999 would be of no
avail.

13. 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 waitlist
that
would
be
utilized
in
the
contingency when recommended candidates
fail to join their respective posts.
14. 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
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 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
9 All. Priyadarshini Singh Vs. State of U.P. & Ors.
423
conditions.
The
entire
exercise
be
undertaken within next three months from
the date of receipt of certified copy of this
order."

29. The Co-ordinate Bench of this
Court in the case of Sanjay Kumar (supra)
while interpreting the provisions contained
in Rule 12 (8) of U.P. Secondary Education
Services Selection Board Rules, 1998 held
as under:-

"The issue raised lies in a narrow
ambit. The conduct of recruitment by the
Board is regulated by the provisions of the
U.P.
Secondary
Education
Services
Selection Board Act, 1982 read with Rules
1998. Rule 11 regulates determination of
vacancy while Rule 12 provides for
procedure for direct recruitment. Sub-Rule
8 of Rule 12 clearly provides that in the
case of vacancy on the post of lecturer or
teacher L.T. Grade. The select panel shall
be larger (but not larger than 25%) of the
number of vacancies. Rule 12(8) of the
Rules 1998 is reproduced hereinafter:-

"The Board then, for each category of
post, prepare panel of those found most
suitable for appointment in order of merit
as disclosed by the marks obtained by the
after adding the marks obtained under subclause (4) or sub-clause (5) above, as the
case may be, with the marks obtained in the
interview. The panel for the post of
Principal or Headmaster shall be prepared
institution- wise after giving due regard to
the preference given by a candidate, if any,
for appointment in a particular institution
whereas for the posts in the lecturers and
trained graduates grade, it shall be
prepared subject-wise and group-wise
respectively. If two or more candidates
obtain equal marks, the name of the
candidate who has higher quality points
shall be placed higher in the panel and if
the marks obtained in the quality points are
also equal, then the name of the candidate
who is older in age shall be placed higher.
In the panel for the post of Principal or
Headmaster, the number of names shall be
three times of the number of the vacancy
and for the post of teachers in the Lecturers
and Trained graduate grade, it shall be
larger (but not larger than twenty-five per
cent) than the number of vacancies.

Practical
exigencies
like
nonavailability of notified vacancies would not
justify the Board from adopting a procedure
which is in derogation of what is laid down
by the statutory scheme itself.

There is no discretion vested in the
commission to provide a panel on the post
of teachers in lecturer and L.T. Grade,
which may be less than the number of
vacancies. Vacancy itself has been defined
under Rule 2(e) of the Rules 1998 in
following words:-

"Vacancy" means a vacancy arising
out as a result of death, retire- ment,
resignation,
termination,
dismissal
or
removal of a teacher or creation of new
post or appointment or promotion of the
incumbent to any higher post in a
substantive capacity."

Once the vacancy gets notified to the
Board it would be possible for the Board
not to draw a panel of candidates which is
below the number of posts notified to it.
The extent of discretion available to the
Board is only to increase the number by
making it larger than the notified vacancies
up to the maximum limit of 25%. It is only
to this extent that discretion can be
exercised by the Board. However, the
vacancy
which
have
already
been
advertised cannot be reduced by the Board
so as to prepare a panel which may be less
than the number of notified vacancies."
424 INDIAN LAW REPORTS ALLAHABAD SERIES

30. In view of the interpretation given
by this Court in various precedents referred
to above with respect to identical Rules,
this Court is of the view that Rule 15(3) of
Rules, 1992 clearly stipulates that the
Commission is obliged to draw select panel
consisting of names larger than the
requisition sent, but not more than 25% of
the total post for which requisition had
been sent. In such circumstances, the
Commission was expected to draw a panel
consisting of names above 309 by up to
25% more.

31. Now, so far as the judgement of
Apex Court in the case of Karunesh
Kumar (supra) is concerned, this Court
may note that said judgement is of no help
to the respondents since in the said case,
the dispute was about selection held on
22.06.2015 on Group-C posts of Gram
Panchayat Adhikari. In the said case, the
Uttar Pradesh Gram Panchayat Adhikari
Service Rules, 1978 (hereinafter referred to
as 'Rules, 1978') exclusively dealt with the
appointment to the post of Gram Panchayat
Adhikari framed under proviso to Article
309 of the Constitution of India. Rule 15(4)
of the Rules, 1978 is almost para-materia to
Rule 15(3) of Rules, 1992. In the said case,
Karunesh
Kumar
(original
petitioner)
approached this Court praying for a
direction for being considered on the
vacancies arising due to the non-joining of
the selected candidates on the post of Gram
Panchayat Adhikari single cadre Group-C.
The said writ petition was dismissed by a
learned
Single
Judge.
However,
the
judgement of the learned Single Judge
dismissing the writ petition was set aside
by the Division Bench by placing reliance
upon Rule 15(4) of Rules, 1978.

32. The Apex Court while setting
aside the judgement of this Court held that
after the promulgation of the Uttar Pradesh
Subordinate
Services
Selection
Commission Act, 2014 (hereinafter referred
to as 'Act, 2014') and The Uttar Pradesh
Direct Recruitment to Group 'C' Posts
(Mode
and
Procedure)
Rules,
2015
(hereinafter referred to as 'Rules, 2015'),
Rules, 1978 have no application in the said
selection as the selection was held by the
Uttar
Pradesh
Subordinate
Services
Selection Commission. It considered the
effect of Rule 8(2) of Rules, 2015 which
provides that all Group-C posts would
come under its purview except those
specifically excluded by the Government
by way of a notification. The Rules 2015
lay
down
the
procedure
for
direct
recruitment by way of written examination
followed by an interview. The Apex Court
held that as the selection had been
conducted under Rules, 2015 and the
petitioner had participated in the same, the
petitioner is estopped in law in questioning
it. It further held that there is no provision
under Rules, 2015 for the preparation of a
waiting list, therefore, the Division Bench
has erred in allowing the writ petition.

33. In the present case, the post in
question does not come under the purview
of Act, 2014 and Rules, 2015 since the
selection has been made by the U.P. Public
Service Commission, and further it is not
disputed by the respondents that Rules
1992 regulates the selection in the instant
case
and
Rule
15(3)
provides
for
preparation of a waiting list, therefore, the
judgement of Apex Court in the case of
Karunesh
Kumar
(supra)
is
distinguishable
on
facts
and
is
not
applicable in the present case.

34. Now so far as the stand of the
respondents that Government Order dated
15.11.1999 prohibits the publication of
9 All. Priyadarshini Singh Vs. State of U.P. & Ors.
425
waiting list in all selections except in cases
where selection is made on one post in a
single cadre, though it is urged by Sri
Ashok Khare, learned Senior Counsel for
the petitioner that word 'एिि संवर्ो िे पदों िो
छोड़िर' refers to a selection on the post of
one cadre which means that prohibition
would not apply in cases where selection is
made on the number of posts in one cadre,
but said submission of Sri Ashok Khare
runs counter to the judgement of Apex
Court in the case of Kamlesh Kumar
(supra) wherein Apex Court in paragraph
28 while interpreting the Government
Order dated 15.11.1999 held as under:-

"28. Much reliance has been made on
the
Government
Order
passed
on
15.11.1999. The said order is very clear on
two counts. It speaks of the role being
played by the Public Service Commission,
and dispensing with the waiting-list except
in case of selection to a single post. What is
important to be noted is the selection and
that too for a single post. It would only
mean that selection of an individual to a
post, which cannot be interpreted to mean a
particular category of post or a single
cadre post, as contended by the counsel for
the Respondents. The object is very clear
that the exercise done in selecting a
suitable candidate shall not go waste if that
person is not actually selected for any
reason, in which case the next in line would
get in. Otherwise, the entire process would
go to waste, making the recruiting agency
to redo it all over for a single post."

35. Therefore, said submission Sri
Ashok Khare is devoid of merit. However,
this
Court
finds
substance
in
the
submission of Sri Ashok Khare that
Government Order cannot override the
Rules, 1992, and as Rule 15(3) stipulates
for publication of a waiting list, the
Commission should have complied with the
Rule 15(3) while drawing panel of selected
candidates.

36. In this respect, it would be apt to
reproduce paragraph 29 of the judgement
of the Apex Court in the case of S.K.
Nausad Rahman:-

29. Fifth, where there is a conflict between
executive instructions and Rules framed
under Article 309, the rules must prevail. In
the event of a conflict between the Rules
framed under Article 309 and a law made
by the appropriate legislature, the law
prevails. Where the rules are skeletal or in
a situation when there is a gap in the rules,
executive instructions can supplement what
is stated in the rules."

37. Reference may also be had to
paragraph 12 of the judgement of this Court
in
the
case
of
Nadeem
Anwar
(supra)wherein this court has held that a
Governement Order contrary to Rules
cannot be enforced and has to be ignored.

38. Now, coming to the last
submission of learned counsel for the
respondents as the period of the select list
is one year and one year period has expired,
therefore, no such direction as sought by
the petitioner can be issued.