# Sana Khan v. State Of U.P. & Ors

- **Citation:** (2025) 11 ILRA 1199
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-11-15
- **Case number:** Writ A No. 19787 of 2022
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sana-khan-v-state-of-u-p-ors-52637
- **Pages:** 18

## Headnote

C.S.C., M.N. Singh, Nipun Singh

Issue(s) for consideration
 (a) Whether the Public Service Commission was
justified in preparing waiting list of 25%
candidates in addition to the selected candidates
in the face of the statutory clause 15 of the U.P
Homeopathic Medical Services Rules, 1990?
(b) Whether the Office Memorandum dated
15.01.1999 is applicable to advertisement in
question?
(c) Whether the waiting list prepared under the
Service Rules, 1990 would be surviving while
these petitions were preferred before this Court
in
November,
2022
taking
the
last
recommendation
made
by
Public
Service
Commission on 10.1.2022 and then again on
26.07.2022?
(d) Whether in the event of there being no
period prescribed under the Service Rules, 1990
for life of a waiting list, it would be deemed to
have continued for a period of three years as a
reasonable period?

Headnotes
A. Service Law - Homeopathic Health
Services Rules, 1990: Rule 15(3); U.P.
Subordinate Education (Assistant District
Inspectors of Schools) Services Rules,
1992: Rule 15(3) - No amount of provision
made or introduced under the GO which is
a piece of subordinate legislation would
override the statutory rules framed in
purported exercise of power under the
proviso to Article 309 of the Constitution.
The sanctity attached to the Rules framed
u/Article 309 of the Constitution therefore
cannot be taken way by an executive fiat issued
at the behest of the Governor in the form of GO.
(Para 25)

Insofar as the issue of single cadre post is
concerned, the GO is directed towards the single
cadre post. (Para 26)

Thus, the GO issued from time to time to be
related to preparation of waiting list in addition
to the list of selected candidates but the latest
GO dated 15.11.1999 revoked the previous GOs
absolutely, making a mandate that no further
waiting list shall be prepared. Under the
circumstances,
the
period
of
one
year
prescribed under various GOs for the waiting list
could not be relied upon once those GOs have
stood repealed/revoked by the GO dated
15.11.1999. Thus, insofar as the question No. 1
and 2 are concerned, they stand answered in
favour of the petitioners and against the Public
Service Commission to the effect that the Public
Service Commission was not justified in taking a
stand that no waiting list could have been
prepared in the face of statutory clause 15 of
the Service Rules 1990 and so also the GO
dated 15.11.1999 is held to be not applicable to
the case in hand. (Para 27)
1200 INDIAN LAW REPORTS ALLAHABAD SERIES
B. The life span of the waiting list meant
to be prepared by the Public Service
Commission under the GO or under the
Rules, would be one year even if there is
no life span provided therein. Looking to the
GO issued from time to time and the last one
dated 15.11.1999, it is found that this GO while
revoking
the
earlier
GOs
refers
to
the
preparation of waiting list but does not make
any mention insofar as the life span of the
waiting list is concerned. It protects preparation
of waiting list in matter of single cadre post. The
life span of waiting list would remain the same
as has been provided lastly in the GO dated
31.01.1994. (Para 36, 37)

C. Where the rules are silent and GOs,
executive instructions and circulars letters
have been issued then in such case these
GO,
circular
letters
and
executive
instructions will have the same force as
statutory rules have. (Para 38)

The life span of the waiting list would be one
year only and that too from the date of
substantial recommendations made by the
Public Service Commission against substantial
number of vacancies under the Service Rule

## Text

_Characters 0–39,983 of 60,876. This is a partial read: ask again with offset=39983 for what follows._

11 All. Sana Khan Vs. State of U.P. & Ors.
1199
therefore, also it will apply to all
beneficiaries.

38. Accordingly, impugned order
dated 25.10.2025 in Second Petition is set
aside and it is directed that petitioner will
now retire after attaining the age of 62
years.
In
case
Respondent-University
proceed to pass any adverse order against
petitioner despite above observations, they
have to put petitioner on prior notice.

39. Both writ petitions are accordingly
disposed of.
----------
(2025) 11 ILRA 1199
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.11.2025

BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ A No. 19787 of 2022
&
Connected With Other Cases

Sana Khan ...Petitioner
Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Seemant Singh

Counsel for the Respondents:
C.S.C., M.N. Singh, Nipun Singh

Issue(s) for consideration
 (a) Whether the Public Service Commission was
justified in preparing waiting list of 25%
candidates in addition to the selected candidates
in the face of the statutory clause 15 of the U.P
Homeopathic Medical Services Rules, 1990?
(b) Whether the Office Memorandum dated
15.01.1999 is applicable to advertisement in
question?
(c) Whether the waiting list prepared under the
Service Rules, 1990 would be surviving while
these petitions were preferred before this Court
in
November,
2022
taking
the
last
recommendation
made
by
Public
Service
Commission on 10.1.2022 and then again on
26.07.2022?
(d) Whether in the event of there being no
period prescribed under the Service Rules, 1990
for life of a waiting list, it would be deemed to
have continued for a period of three years as a
reasonable period?

Headnotes
A. Service Law - Homeopathic Health
Services Rules, 1990: Rule 15(3); U.P.
Subordinate Education (Assistant District
Inspectors of Schools) Services Rules,
1992: Rule 15(3) - No amount of provision
made or introduced under the GO which is
a piece of subordinate legislation would
override the statutory rules framed in
purported exercise of power under the
proviso to Article 309 of the Constitution.
The sanctity attached to the Rules framed
u/Article 309 of the Constitution therefore
cannot be taken way by an executive fiat issued
at the behest of the Governor in the form of GO.
(Para 25)

Insofar as the issue of single cadre post is
concerned, the GO is directed towards the single
cadre post. (Para 26)

Thus, the GO issued from time to time to be
related to preparation of waiting list in addition
to the list of selected candidates but the latest
GO dated 15.11.1999 revoked the previous GOs
absolutely, making a mandate that no further
waiting list shall be prepared. Under the
circumstances,
the
period
of
one
year
prescribed under various GOs for the waiting list
could not be relied upon once those GOs have
stood repealed/revoked by the GO dated
15.11.1999. Thus, insofar as the question No. 1
and 2 are concerned, they stand answered in
favour of the petitioners and against the Public
Service Commission to the effect that the Public
Service Commission was not justified in taking a
stand that no waiting list could have been
prepared in the face of statutory clause 15 of
the Service Rules 1990 and so also the GO
dated 15.11.1999 is held to be not applicable to
the case in hand. (Para 27)
1200 INDIAN LAW REPORTS ALLAHABAD SERIES
B. The life span of the waiting list meant
to be prepared by the Public Service
Commission under the GO or under the
Rules, would be one year even if there is
no life span provided therein. Looking to the
GO issued from time to time and the last one
dated 15.11.1999, it is found that this GO while
revoking
the
earlier
GOs
refers
to
the
preparation of waiting list but does not make
any mention insofar as the life span of the
waiting list is concerned. It protects preparation
of waiting list in matter of single cadre post. The
life span of waiting list would remain the same
as has been provided lastly in the GO dated
31.01.1994. (Para 36, 37)

C. Where the rules are silent and GOs,
executive instructions and circulars letters
have been issued then in such case these
GO,
circular
letters
and
executive
instructions will have the same force as
statutory rules have. (Para 38)

The life span of the waiting list would be one
year only and that too from the date of
substantial recommendations made by the
Public Service Commission against substantial
number of vacancies under the Service Rule
1990. (Para 39)

In the present case, since the recommendation
was made against the substantive number of
566 on 28.05.2020 then the waiting list would
start from 28.05.2020 and would last will
27.05.2020, much prior to the filing of present
petitions, hence, the questions No. 3 and 4
stand answered against the petitioner. (Para 40)

D. An issue may arise that since the Public
Service Commission did not prepare the
waiting list why should its term start from
the date of first recommendation and not
from the date of last recommendation
made on 10.01.2022. Since it has already
been held that the Public Service Commission
was not justified in not preparing the waiting
list, Court could have directed for the same and
those candidates could have been adjusted and
accommodated against the available vacancies
but in the instant case it was found that
subsequently
left
over
vacancies
were
requisitioned by the Public Service Commission
on 27.05.2025 itself and rights have accrued to
the selected candidates and hence, this relief
now cannot be granted. Thus no such relief
can be granted at this stage in this
petition when neither the requisitions
were challenged, nor subsequent selection
was challenged. (Para 41)

However, directions are issued to the Public
Service Commission to prepare waiting list in
those cases where the statutory rules do
provide in matter of selection upon requisitioned
post as in the present case Service Rules 1990
provides. (Para 42)

Writ
petitions
disposed
of
with
directions.(E-4)

Case Law Cited
1. Sheo Shyam and others Vs. State of U.P. and
others, (2005) 10 SCC 314 (Para 7)
2. State of U.P. Vs. Karunesh Kumar and others,
(2022) SCC online SC 1706 (Para 7)
3. Uttar Pradesh Public Service Commission Vs.
Surendra Kumar and others (2019) 2 SCC 195
(Para 7)
4. Priyadarshani Vs. State of U.P. and others
2023 (12) ADJ 281 (Para 8)
5. State of U.P. Vs. Bibhakar Dwivedi and others
(2003) 12 SCC 62 (Para 12)
6. Uttar Pradesh Public Service Commission Vs.
Surendra Kumar and others (2019) 2 SCC 195
(Para 12)
7. S.K. Naushad Rehman and others Vs. Union
of India and others (2022) 12 SCC 1 (Para 25)
8. Chintels India Limited Vs. Bhayana Builders
Private Limited, (2021) 4 SCC 602 (Para 32)
9. State of U.P. Vs. Vaibhav Dwivedi, (2003) 12
SCC 62 (Para 35)
10. State of M.P Vs. S.K. Dubey, (2012) 4 SCC
578 (Para 38)

List of Acts
Homeopathic Health Services Rules, 1990; U.P.
Subordinate
Education
(Assistant
District
Inspectors of Schools) Services Rules, 1992.

List of Keywords
Service,
education,
waiting
list,
selection,
government
order,
circulars,
executive
instructions.

Appearances for Parties
For Peittioner(s): Seemant Singh
11 All. Sana Khan Vs. State of U.P. & Ors.
1201
For Respondent(s): C.S.C., M.N. Singh, Nipun
Singh

(Delivered by Hon'ble Ajit Kumar, J.)

1. Heard Shri Ashok Khare, learned
Senior Advocate assisted by Shri Seemant
Singh and Shri Umang Srivastava, learned
Advocates for respective petitioner, Shri
Nipun Singh, learned Advocate appearing
for Public Service Commission and Shri
S.K. Pal, learned Additional Chief Standing
Counsel for State respondents.

2. Since all the petitions raise similar
controversy accordingly are being decided
by this common judgment.

3. Petitioners before this Court in their
respective petitions have prayed for a writ
of mandamus to command Public Service
Commission to make recommendation for
appointments as Homeopathic Medical
Officer on the basis of waiting list, if any,
prepared in respect of the selection held on
such posts pursuant to the advertisement
No. 1/2018-19 dated 18.05.2018.

4. Briefly stated facts of the case are
that Union Public Service Commission
having received requisition from the State
Government to fill up 596 vacancies of
Homeopathic
Medical
Officer
on
26.04.2017, proceeded to advertise the
same vide Advertisement No. 1/2018-19
dated 18.05.2018 and after holding such
selection in which petitioners were also
participants, it made a recommendation on
28.05.2020 in respect of 566 selected
candidates out of the merit list, to the State
Government
for
the
purposes
of
appointment. Later on it made further
recommendation on different dates. The
said fact as narrated in paragraph 4 of the
writ petition is reproduced under:-

"4. That the Commission issued
advertisement being Advertisement No.
1/2018-19 dated 18.05.2018 advertising the
post of Medical Officer for appointment
under U.P. Homeopathy Medical Services
in Government Homeopathic Hospitals of
the State of Uttar Pradesh, whereby, total
494 posts were advertised, subsequently the
posts were increased to 596 posts vide
notification dated 09.10.2018, in which 319
posts were notified under Scheduled Caste
Category and 9 posts were notified under
Scheduled Tribe category, as such total 596
posts were notified for filing the post of
Medical Officer under U.P. Homeopathic
Hospitals of the State of Uttar Pradesh. The
copy of the initial advertisement dated
18.05.2018
and
notification
dated
09.10.2018 issued by the Commission are
collectively being annexed herewith and
marked as Annexure No.1 to this Writ
Petition. "

5. After these recommendations were
made, 26 vacancies were left over for the
reason that selected candidates were not
issued with the appointment order and two
candidates
did
not
join
after
being
appointed
and,
hence,
as
per
the
instructions sent by the Special Secretary,
Government of U.P. to be placed before the
Court dated 27.08.2025, 28 vacancies of
the previous requisition were left unfilled.
As per the instructions 9 vacancies that
were freshly created and 17 vacancies that
had
fall
vacant
on
account
of
superannuation of employees/ sudden death
/ resignation, total 54 vacancies were
requisitioned
again
by
the
State
Government vide letter dated 22.03.2023 to
the Public Service Commission for carrying
out fresh selection and recommendation
drive.
Accordingly
Public
Service
Commission proceeded to advertise the
vacancies
on
26.09.2023
and
made
1202 INDIAN LAW REPORTS ALLAHABAD SERIES
recommendations to the State Government
on 27.05.2025 as per the supplementary
counter
affidavit.
While
the
State
Government
requisitioned
initially
54
vacancies, as have been referred to
hereinabove, and also sent recommendation
qua 8 vacancies which were also advertised
by the Public Service Commission and in
respect of which recommendations were
also made on 27.05.2025 and 11.06.2025.
Both these requisitions have been appended
with the supplementary counter affidavit of
the Public Service Commission.

6. While selection process could have
been initiated by the Public Service
Commission pursuant to the requisition
sent in the year 2023 by the State
Government qua 61 vacancies, petitioners
who were candidates in the previous
selection filed this petition before this
Court taking a plea that since vacancies
were left unfilled, therefore, waiting list
was required to be exhausted first and in
such circumstances, petitioners should have
been recommended and appointed.

7. The main plank of arguments
advanced by Shri Ashok Khare, learned
Senior Advocate appearing for petitioners
is that under the Homeopathic Health
Services Rules, 1990 (for short 'service
Rules, 1990) vide its rule 15 (3) there is a
scheme provided for preparation of select
list for the purposes of direct recruitment
on the post by way of waiting list to the
extent of 25% of the selected candidates. It
does provide for preparation of select list
counting to 25% more than the number of
vacancies advertised. According to Shri
Khare, this additional 25% is meant to be a
waiting list. Shri Khare argued that once
rules provide for preparation of waiting list
then this is a mandatory requirement under
the Rules framed vide proviso to Article
309 of the Constitution and, therefore, the
Public Service Commission is hide bound
in law to prepare such waiting list of
additional 25% to the vacancies advertised.
Shri Khare, learned Senior Advocate has
placed three judgments before this Court in
support of his submissions:-

(i) Sheo Shyam and others v.
State of U.P. and others (2005) 10 SCC
314;

(ii) State of U.P. v. Karunesh
Kumar and others (2022) SCConline SC
1706;

(iii)
Uttar
Pradesh
Public
Service Commission v. Surendra Kumar
and others (2019) 2 SCC 195.

8. Shri Khare, has also relied upon the
judgment of a Coordinate Bench of this
Court in the case of Priyadarshani v.
State of U.P. and others 2023 (12) ADJ
281.

9. Shri S.K. Pal, learned Additional
Chief Standing Counsel in counter to the
above arguments advanced by Shri Ashok
Khare, learned Senior Advocate, has
argued that as per the Office Memorandum
dated 15.01.1999 the provision to prepare
waiting list has been done away with
except in cases where single cadre post is
advertised and alternatively he has argued
that even if it is claimed that in terms of
Rule 15 of Service Rules, waiting list has to
be prepared, the life of the waiting list
would not be more than one year counting
it from the date of initially made substantial
recommendation, as according to him,
since the initial recommendation was made
on 28.05.2020 in respect of 566 vacancies
against the vacancies advertised, the life of
the waiting list, if any, had expired on
11 All. Sana Khan Vs. State of U.P. & Ors.
1203
27.05.2021. The basic facts are not in
dispute. What is in dispute is the
interpretation of the 1994 notification and
the 1999 notification. As far as the 1994
notification is concerned, it is reproduced
hereunder:

"(2) The department concerned,
within
three-and-a-half
months
of
obtaining/receiving the sanction of posts
should issue the appointment e leuer after
deciding so that the candidates should be
given at least one month's time to join the
post which can be extended. Thereafter, the
candidature of the appointed should be
cancelled and the copy of such cancellation
of appointment order should be sent to the
Commission for obtaining the next suitable
candidate existing on the waiting list in
place of candidate/candidates so mentioned
accordingly. A copy of this order will also
be sent to Workman Section IV.

*
*
*

(4) The waiting list will not be
published and it is made available with the
Commission and in case of necessity the
names
are
recommended
by
the
Commission.

(5) This waiting list will be
considered to be valid for only one year,
either it may relate to any such competitive
examination which is being conducted
every year or for any specific selection. In
certain cases it has been found that on
demanding names from the Commission
for their vacant posts within the prescribed
time from the waiting list maintained by the
Commission the Commission fails to
provide such names to fill up the vacancies,
in such cases if the situation is found to be
correct and the Commission had not
provided the names of the successful
candidates,
waiting
list,
under
such
situations the existing waiting list will be
considered as valid for more than one year.

(6) If the said waiting list is not
utilised as the names of selected candidates
are not demanded by the departments
concerned from the Commission out of the
waiting list in those cases the vacancies
which were not filled up are retained for
the next year to be filled accordingly. "

10. Besides the above, this is also
argued by Shri Pal that since the left over
vacancy out of initially advertised 596
vacancies stood requisitioned subsequently
in the year 2023 which were also advertised
on 14.06.2023 and 26.09.2023 there being
no challenge laid to the advertisement, the
candidates
having
not
been
selected
pursuant
to
such
advertisement
and
recommendation made on 27.05.2025 and
11.06.2025
by
the
Public
Service
Commission, there is no question of revival
of any waiting list, taking a plea that last
recommendation
being
made
on
26.07.2024 even by relying upon the
judgment of Coordinate Bench of this
Court in the case of Priyadarshani (supra)
such a waiting list could not be revived.

11. Shri Nipun Singh, learned counsel
for Public Service Commission has raised
similar arguments as raised on behalf of
state
respondents
and
has
denied
preparation of any waiting list whatsoever.
Shri Nipun Singh, has also relied upon
Office Memorandum dated 15.01.1999.

12. Shri S.K.Pal, learned Additional
Chief Standing Counsel appearing for State
respondents as well as Shri Nipun Singh,
learned
counsel
for
Public
Service
Commission have relied upon the authority
of the Supreme Court in the Case of State
1204 INDIAN LAW REPORTS ALLAHABAD SERIES
of U.P. v. Bibhakar Dwivedi and others
(2003) 12 SCC 62 and also the authority of
Supreme Court in the case of Uttar
Pradesh Public Service Commission v.
Surendra Kumar and others (2019) 2
SCC 195 on which reliance has also been
placed by Shri Ashok Khare, learned
Senior Advocate.

13. Having heard learned counsel for
respective parties and having perused the
records,
the
points
that
arise
for
consideration are:-

(i) Whether the Public Service
Commission was not justified in preparing
waiting list of 25% candidates in addition
to the selected candidates in the face of the
statutory clause 15 of the U.P Homeopathic
Medical Services Rules, 1990 ( for short
?Service Rules, 1990')

(ii)
Whether
the
Office
Memorandum
dated
15.01.1999
is
applicable to advertisement in question.

(iii) Whether the waiting list
prepared under the Service Rules, 1990
would be surviving while these petitions
were preferred before this Court in
November,
2022
taking
the
last
recommendation made by Public Service
Commission on 10.1.2022 and then again
on 26.07.2022.

(iv) Whether in the event of there
being no period prescribed under the
Service Rules, 1990 for life of a waiting
list, it would be deemed to have continued
for a period of three years as a reasonable
period

14. Since the point Nos. 1 and 2 are
related to each other, I proceed to consider
them first.

15.
In
order
to
appreciate
the
arguments advanced by learned Senior
Advocate appearing for the petitioners and
the counter argument advanced on behalf
of State respondents and Public Service
Commission, I proceed first to consider the
statutory rules 15 of Service Rules, 1990.
The relevant Rule 15 is reproduced
hereunder:

"15-सीिी भती की प्रविया (1) चयन से मलये
मवचार मकये जाने के मलये आवेदन पत्र आयोग द्वारा मवमहत प्रपत्र में
आमांमत्रत मकये जायेंगे।

(2) आयोग, वनयम-6 के अनुसार अनुसूमचत
जामतयों, अनुसूमचत जनजामतयों और अन्य िेमणयों के अभ्यमथटयों
का सम्यक् प्रमतमनमधत्व सुमनमश्चत और जैसा वह उमचत समझे,
सािात्कार के मलये आमांमत्रत करेगा।

(3) आयोग अभ्यमथटयों की, उनकी प्रवीणता क्रम
में, जैसा मक सािात्कार में, प्रत्येक अभ्यथी द्वारा प्राप्त अांकों से प्रकट
हो, एक सूची तैयार बनेगा। यमद दो या अमधक अभ्यथी बराबरबराबर अांक प्राप्त करें तो आयोग के मलये उनकी सांख्या उपयुक्ता के
आधार पर उनके नाम योग्यता क्रम में रखेगा। सूची में नामों की
सांख्या ररमक्तयों की सांख्या से अमधक (मकन्तु पच्चीस प्रमतशत से
अनमधक) होगी। आयोग सूची मनयुमक्त प्रामधकारी को अग्रसाररत
करेगा।"

16. Upon a bare reading of the
aforesaid rules, I find it to be providing
quite unequivocally that the list of
candidates finally selected for the purposes
of recommendations against vacancies
would consist of 25% more than candidates
than the number of vacancies but not
beyond that. The natural corollary would be
that if there are 100 vacancies advertised
for which the recommendations have to be
made, then select list would consist of 125
candidates. Thus, naturally 25 additional
candidates would form a waiting list to be
offered appointment in the event any
candidate already offered appointment
11 All. Sana Khan Vs. State of U.P. & Ors.
1205
against any of the 100 candidates either
does not turn up to join or could not be
offered appointment for any reason.

17. In view of the above, therefore, it
is inferable that rules mandate creation of
waiting list consisting 25% candidates in
addition to the vacancies advertised for
which recommendations have to be made
but before drawing any conclusion as to
this mandate, I proceed to examine various
Government Orders issued from time to
time by the State Government qua
preparation of waiting list.

18. The relevant office memorandum
placed
before
the
Court
are
dated
29.08.1992,
31.01.1994,
24.09.1994,
23.12.1997 and 15.11.1999. In the office
memorandum dated 29.08.1992 it was
provided vide clause 3(3) that waiting list
will be valid for a period of one year even
if it is rela ted to the competitive
examination held every year or related to
any special selection. It was also provided
that the period of one year shall be counted
from the date of receipt of recommendation
by the department. Vide clause 3(6) it was
further provided that if waiting list was not
utilized within a period of one year then all
left over vacancies shall be carried forward
to the next year for selection. Further the
guidelines were also given regarding
appointment to be offered within a time
frame by the department after receiving the
recommendation. The office memorandum
specifically mentions that it is being issued
in respect of competitive examination to be
held by Public Service Commission.
Relevant Clause 3(3) are reproduced
hereunder:

"3. प्रतीिा सूची केवल एक वषट के मलए वैध होगी
बाहे वह प्रमतवषट होने वाले प्रमतयोमगतात्मक परीिा से सांबांमधत हो
अथवा मकसी चयन मवशेष से एक वषट के बाद प्रतीिा सूची का
उपयोग नहीं मकया जायेगा। एक वषट की गणना मवभाग को आवांटन
प्राप्त होने की मतमथ से की जायेगी।"

19. However vide clause 6 it was also
provided that if the department does not ask
for recommendation to be sent to it in
respect of the candidates placed in the
waiting list within the life span of one year
of its publication, such left over vacancies
would now be carried forward to the next
year for selection. Clause 6 is reproduced
hereunder:

"यमद एक वषट की अवमध में प्रतीिा सूची का
उपयोग नहीं होता है तो जो भी ररमक्तयाां रह जायेंगी वह अगले वषट
के मलए अग्रेनीत मानी जायेंगी

20. The aforesaid office memorandum
dated 29.08.1992 was further modified by
way of clarification vide Government
Order dated 31st January, 1994 to arrest the
difficulties being faced in the matter of
preparation and utilization of waiting list
and this time vide its clause 5 it was
provided that in the event names of the
candidates placed in the select list are
notified by the department within a period
of one year of publication of such waiting
list and the Public Service Commission
fails to make further recommendation
within the life span of the waiting list i.e.
one year, the waiting list in such
eventuality would continue to remain valid
even beyond a period of one year.

21. This above Government Order
issued on 31.01.1994 came to be clarified
and modified by another Government
Order
dated
24.09.1994
making
it
absolutely mandatory for the department to
offer
appointment
to
the
candidates
recommended by the Public Service
Commission
unless
and
until
the
institution/ organization in respect of which
the vacancy was advertised has been
1206 INDIAN LAW REPORTS ALLAHABAD SERIES
completely closed down or in the event
where the past requisition for selection has
stood abolished or in the event the vacancy
has already got filled up by making
appointment under the order of the Court.
Thus, it was directed that in such above
exceptional
circumstances
only
recommendation made by the Public
Service Commission would not be binding.
Paragraph 1 of the Government Order is
reproduced hereunder:

"अधोहस्तािरी की यह कहने का मनदेश हुआ है मक
लोक सेवा आयोग द्वारा आयोमजत प्रमतयोमगतात्मक परीिाओां तथा
अन्य चयनों के आधार पर चयमनत अभ्यमथटयों को मनयुमक्त प्रदान
करने, कायटभार ग्रहण करने, मनमश्चत अवमध में कायटभार ग्रहण न
करने पर अभ्यथटन मनरस्त मकये जाने एवां प्रमतिा सूची के उपयोग हेतु
समय मनधाटररत करने आमद के सम्बन्ध में शासनादेश मदनाांक 29
अगस्त, 1992 जारी मकया गया था। उक्त शासनादेश के प्रामवधानों
के अनुसार कायाटवाही मकये जाने में कमतपय व्यवहाररक कमठनाइयाां
शासन के सांज्ञान में आ रही हैं. अतः शासन द्वारा उक्त व्यवहाररक
कमठनाइयों के मनवारणाथट सम्यक् मवचारोपरान्त मनम्नमलमखत मनणटय
मलये गये हैं-

(1) मवभागों द्वारा उपलब्ध पदों की सही गणना
सुमनमश्चत करने के उपरान्त ही आयोग को अमधयाचन भेजा जाये।
अमधयाचन भेजे जाने के उपरान्त अमधयामचत ररमक्तयों के मवरुद्ध जो
चयमनत अभ्यथी समम्ममलत परीिा के आधार पर मवभाग को
उपलब्ध कराये जायेंगे, मवभाग को उन्हें मनयुमक्त प्रदान करनी ही
होगी। मसवाय उन मामलों के जहाां सम्बमन्धत मवभाग या सांस्था या
सांगठन को पूणट रूप से समाप्त कर मदया गया हो या जहाां एकल पद
के मलए आयोमजत बयन के आधार पर चयमनत अभ्यथी आयोग ने
सांस्तुत मकया हो वहाां अमधयामचत पद ही समाप्त कर मदया गया हो।
सम्बमन्धत मवभाग या सांस्था या सांगठन को समाप्त मकये जाने अथवा
अमधयामचत पदों को ही समाप्त मकये जाने के मनणटय शासन द्वारा
मलए जाने की दशा में अमधयामचत पदों पर चयन की कायटवाही
तत्काल रोकने हेतु मवभागों द्वारा आयोग से सम्पकट मकया जायेगा,
और यमद चयमनत अभ्यथी की सांस्तुमत मवभाग में प्राप्त हो गयी हो,
ती तत्काल आयोग को सूमचत मकया जायेगा तामक यमद समम्ममलत
प्रमतयोगी परीिा के आधार पर चयन हुआ हो, तो आयोग द्वारा
सम्बमन्धत अभ्यथी के मवषय में समय से ररशिमलांग की कायटवाही
कर सांशोमधत सांस्तुमत या सांस्तुमतया की जा सके। परन्तु जहाजों के
पर अमधवामचत पदों को अन्यथा भर मलया गया ही वहाां आयोग
द्वारा सांस्तुत अभ्यमथटयों की मनयुमक्त प्रदान मकये जाने की बाध्यता न
होगी।

(2) सम्बमन्धत मवभाग सावांटन प्राप्त होने के तीन
माह के अन्दर मनयुमक्त आदेश जारी करना सुमनमश्चत करेंगे तथा
अभ्यथी करे कायटभार ग्रहण करने हेतु एक माह का समय मदया
जायेगा जो अपररहायट पररमस्थमतयों में एक माह तक और बढ़ाया जा
सकता है। तत्पबाद अभ्यथी का अभ्यथटन मनरस्त करने का आदेश
करते हुए अभ्यथटन मनरस्त करने सम्बन्धी आदेश की एक प्रमत
आयोग का अभ्यथटन मनरस्त मकये गये अभ्यथी अभ्यमथटयों के स्थान
पर प्रतीिा सूबी से नाम शीघ्र उपलब्ध कराने के अनुरोध के साथ
प्रेमषत की जायेगी। उक्त आदेश की एक प्रमत काममटक अनुभाग-4 को
भी उपलब्ध करायी जायेगी।

(3) स्वास्थ्य परीिण तथा पुमलस वेरीमिकेशन
समानान्तर रूप से मकया जायेगा, मजससे इसमें मवलम्ब न हो।

(4) प्रतीिा सूची प्रकामशत नहीं की जायेगी तथा
बांद मलिािों में आयोग में उपलब्ध रहेगी। आवश्यकतानुसार आयोग
द्वारा प्रतीिा सूची में से अभ्यमथटयों के नाम शासन की यथासमय
उपलब्ध कराये जायेंगे।

(5) प्रतीिा सूची केवल एक वषट के मलए वैध होगी
बाहे प्रमतवषट होने वाले प्रमतयोमगतात्मक परीिा से सम्बमन्धत हो
अथवा मकसी चयन मवशेष से कमतपय मामलों में यह देखा गया है
मक मवभागों द्वारा मनधाटररत अवमध के अन्दर आयोग से प्रतीिा सूबी
से नाम माांग मलए जाने पर भी आयोग द्वारा मनधाटररत एक वषट की
अवमध में प्रतीिा सूची से नाम उपलब्ध नहीं कराये जाते हैं। अतः
उक्त समस्या के समाधान हेतु मजन मामलों में मवभाग द्वारा मनधाटररत
एक वषट की अवमध के अन्दर पमद आयोग से प्रतीिा सूची से नाम
माांग मलए गये हों मकन्तु आयोग ने मनधाटररत अवमध में नाम उपलब्ध
न कराया हो. ऐसे मामलों में प्रतीिा सूबी एक वषट के बाद भी वैध
होगी।

(6) यमद मनधाटररत अवमध में प्रतीिा सूची का
उपयोग नहीं होता है अथवा मनधाटररत अवमध में मवभागों द्वारा
आयोग से नाम नहीं माांग मलया जाता है तो जो भी ररमक्तयाां रह
जायेंगी वह अगले वषट के मलए अग्रेनीत मानी जायेगी।

कृपया उपयुटक्तानुसार कायटवाही प्रत्येक स्तर पर
सुमनमश्चत करायी जाये। उक्त आदेश तात्कामलक प्रभाव से लागू
होंगे तथा इस सम्बन्ध में पूवट में सभी शासनादेश मनरस्त समझे
जायेंगे।"
11 All. Sana Khan Vs. State of U.P. & Ors.
1207

22. Both the Government Orders dated
31.01.1994 and 24.09.1994 were clarified
in order to satisfy the queries vide another
Government
Order
dated
23.09.1997.
Clarification were made to the effect that in
the event an appointment has been offered
and appointed candidate resigned after
giving joining then such vacancy would not
be filled up by a candidate from waiting list
even if the resignation has been received
during the life spam of one year assigned to
the waiting list. Paragraph 2 and 3 of the
Government
Order
are
reproduced
hereunder:

"2. कमतपय स्रोतों से यह मजज्ञासा की जा रही है मक
क्या कायटभार ग्रहण करने के उपरान्त, प्रतीिा सूची की वैधता की
समय सीमा के अांतगटत त्याग-पत्र दे देने के कारण, घमटत होने वाली
ररमक्त के मवरुद्ध प्रतीिा सूची से मनयुमक्त प्रदान की जा सकती है?

3. उपयुटक्त के सम्बन्ध में सम्यक् मवचारोपरान्त,
शासन द्वारा मनणटय मलया गया है, मक चूांमक अभ्यथी के कायटभार
ग्रहण करने के उपरान्त सम्बमन्धत ररमक्त आपूररत समाप्त हो जाती है,
अतः प्रतीिा सूची की समय सीमा के अांतगटत भी त्याग-पत्र देने से
घमटत होने बाली ररमक्त के मवरुद्ध प्रतीिा सूची से मनयुमक्त प्रदान नहीं
की जा सकती है।"

23.
On
15.11.1999
another
Government Order came to be issued
revoking all the previous Government
Orders providing for appointment upon
recommendation made by the Public
Service Commission and also regarding
which the names were to be recommended
from the waiting list. The government this
time decided that there shall be no
provision for waiting list except in case of
single
cadre
post
as
advertised
for
appointment. The guidelines have been laid
down for sending requisition to the Public
Service Commission for selection and the
recommendation to be made by the Public
Service Commission to the department
concerned for making appointment and the
appointment to be offered to the selected
candidates by the department. The entire
Government Order dated 15.11.1999 is
reproduced hereunder:

"लोक सेवा आयोग, उ० प्र० द्वारा आयोमजत
प्रमतयोमगतात्मक परीिाओां तथा अन्य चयनों के आधार पर चयमनत
अभ्यमथटयों को मनयुमक्त प्रदान करने एवां प्रतीिा सूची से नाम माांगने
सम्बन्धी, पूवट में मनगटत शासनादेशों के अनुपालन में आने वाली
कमठनाइयों को ध्यान में रखते हुए, शासन द्वारा यह मनणटय मलया गया
है, मक एकल सांवगों के पदों को छोड़कर, अन्य समस्त समम्ममलत
सेवाओां एवां अन्य चयनों में प्रतीिा सूची का मनमाटण नहीं मकया जायेगा
और न ही मकसी प्रकार की ररशिमलांग की कायटवाही की जायेगी।

2. उपयुटक्त के सम्बन्ध में पूवट में मनगटत समस्त
शासनादेशों को अवक्रममत करते हुए, शासन द्वारा मलये गये अन्य
महत्वपूणट मनणटय मनम्नवत् है:

(1) मकसी चयन वषट मवशेष में घमटत होने वाली
ररमक्तयों की सही गणना सुमनमश्चत करने के उपरान्त ही आयोग की
अमधयाचन भेजा जाय। अमधयाचन भेजे जाने के उपरान्त यथासम्भव
ररमक्तयों में कोई पररवतटन न मकया जाय।

(2) चयमनत अभ्यमथटयों की सांस्तुमतयाां प्राप्त होने के
उपरान्त उन्हें कायटभार अवश्य ग्रहण कराया जाय, मसवाय उन
मामलों के जहाां सम्बमन्धत मवभाग या सांस्था या सांगठन को पूणटरूप
से समाप्त कर मदया गया हो अथवा मकसी न्यायालय द्वारा कोई
अन्यथा आदेश मदये गये हों।

(3) सम्बमन्धत मवभागों द्वारा सांस्तुमतयाां या आवांटन
प्राप्त होने के तीन माह के अन्दर मनयुमक्त आदेश जारी करना सुमनमश्चत
मकया जाय तथा अभ्यथी की प्रथमतः कायटभार ग्रहण करने हेतु एक
माह का समय प्रदान मकया जाम, मजसे अपररहायट पररमस्थमतयों में
एक माह तक और बढ़ाने पर मवचार मकया जा सकता है।

(4) चयमनत अभ्यमथटयों के चररत्र सत्यापन एवां
स्वास्थ्य परीिण कराने के उपरान्त ही मनयुमक्त पत्र जारी मकए जाएां।

(5) मनधाटररत अवमध में कायटभार ग्रहण न करने वाले
अभ्यमथटयों के अभ्यथटन मनरस्त करते हुए, घमटत ररमक्तयों को आगामी
चयन वषट हेतु अग्रेनीत कर मदया जाय।
1208 INDIAN LAW REPORTS ALLAHABAD SERIES

(6) चयन सूचीं का उपयोग उसी चयन वषट की
ररमक्तयों के मवरुद्ध मकया जाए, मजसके मलए अमधयाचन भेजा गया
हो/चयन मकया गया हो।

3. उपयुटक्त आदेश तत्काल प्रभाव से प्रभावी होंगे।

4. उपयुटक्त आदेशों का प्रत्येक स्तर पर कड़ाई से
अनुपालन सुमनमश्चत मकया जाय।"

24. One of the arguments advanced by
learned Senior Advocate appearing for
petitioners was that this Government order
that
superseedes
all
the
previous
Government Orders and does away with
the provision qua preparation of waiting
list, it would only be applicable in those
cases only where there are no statutory
rules providing for preparation of waiting
list, inasmuch as preparation of waiting list
that is provided under the Government
Order would be relevant to only single
cadre post which is not the case in hand.

25. This Court finds merit in the
submission advanced by Shri Khare that no
amount of provision made or introduced
under the Government Order which is a
piece of subordinate legislation would
override the statutory rules framed in
purported exercise of power under the
proviso to Article 309 of the Constitution.
The sanctity attached to the Rules framed
under Article 309 of the Constitution
therefore cannot be taken way by an
executive fiat issued at the behest of the
Governor in the form of Government
Order. My above view finds support by the
judgment of Supreme Court in the case of
S.K. Naushad Rehman and others v.
Union of India and others (2022) 12 SCC
1.

26. Insofar as the issue of single cadre
post is concerned as according to Shri
Khare it would not amount to a number of
vacancy including the vacancy in the cadre
of its own, I find that in the judgment in the
matter of State of U.P. v. Karunesh
Kumar and others (supra) Supreme Court
clearly observed that the Government
Order is directed towards the single cadre
post. Vide paragraph 28 the Court has held
thus:

"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
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 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."

27. Thus, taking together all the
government order issued from time to time
as have come to be mentioned and
discussed hereinabove, I find all these to be
related to preparation of waiting list in
addition to the list of selected candidates
but the latest Government order dated
15.11.1999
revoked
the
previous
government Orders absolutely, making a
mandate that no further waiting list shall be
prepared. Under the circumstances, Shri
Khare has rightly argued that the period of
one
year
prescribed
under
various
11 All. Sana Khan Vs. State of U.P. & Ors.
1209
Government orders for the waiting list
could not be relied upon once those
Government Orders have stood repealed/
revoked by the Government order dated
15.11.1999. Thus, insofar as the question
No. 1 and 2 are concerned, they stand
answered in favour of the petitioners and
against the Public Service Commission to
the
effect
that
the
Public
Service
Commission was not justified in taking a
stand that no waiting list could have been
prepared in the face of statutory clause 15
of the Service Rules 1990 and so also the
Government order dated 15.11.1999 is held
to be not applicable to the case in hand.

28. Now dealing with the questions
No. 3 and 4 as framed above, as they are
related to each other I proceed to consider
the same.

29. Insofar as the judgment in the case
of Sheo Shyam and others (supra) is
concerned, I find the Court was considering
the
office
memorandum
issued
on
31.01.1994 and 14.01.1999 and then came
to conclude that the period of one year
would be reckoned from the last date of
taking name of the waiting list and vide
paragraph 10, 11 and 12 it held thus:-

"10. In the aforesaid background,
in a case of this nature and in view of the
peculiar nature of the fact situation noted
above, it would be inequitable and unjust to
compute the one-year period from the date
when the first recommendation was made
by
the
Commission.
Undisputedly,
appointments were made till the end of
2001. Therefore, it would be proper to
reckon the period from the last date when
the
recommendation
was
made.
But
another
situation
has
developed
subsequently. The State Government itself
had
requisitioned
for
fifty-six
posts
including the unfilled posts of the previous
selection and examinations are stated to
have been already held. The fate of the
present eleven appellants has suffered a
setback on account of the action of both the
Commission and the State Government. If
the Commission's stand is that the validity
period of the waiting list is one year, it
should have sought for clarification from
the State Government as to why unfilled
posts were included in the requisition,
when its specific stand in the office
memorandums referred to above was to the
contrary.
At
the
same
time,
the
memorandums referred to above was to the
contrary. At the same time, the State
Government having taken a positive stand
all through that the date of reckoning would
be
the
last
date
on
which
the
recommendation was made, it should not
have included the unfilled posts in its
requisition. The career of eleven candidates
cannot be jeopardized in this battle of
inconsistent and varying stands taken and
moves adopted by the State Government
and the Commission at different stages for
different purposes.

11. Had the Commission on
receipt of the office memorandum dated
14-1-1999 pointed out to the State
Government that its view was not in line
with the Commission's view that would
have sorted out the areas of differences.
Interestingly, in a particular case referred to
by the appellants, the Commission accepted
that the period was to be from the last date
of recommendation. Though there cannot
be any estoppel in law, yet a statutory body
like the Commission cannot blow hot and
cold in the same breath. There has to be
consistency in its view. To rule out
unfortunate situations like the present one
being allowed to recur again, both the State
Government and the Commission are
1210 INDIAN LAW REPORTS ALLAHABAD SERIES
required
to
be
more
vigilant
and
constructive in then approach. When
dealing with the careers of large number of
candidates,
then
stands
have
to
be
consistent and not varying to avoid giving
room for unsavory suspicions and ensuring
the system to work more transparently to
add to its reputation and strength.

12. In the peculiar circumstances
noted above, we direct that the appellants
shall be considered by the Commission and
the State Government and they would be
appointed if otherwise found suitable and
eligible
after
verification
of
such
credentials, documents and background as
are necessary to be done for appointment."

30. From the observations made in the
above paragraphs, it is clear that the Public
Service Commission there in that a case
had also taken the stand that the life span of
waiting list would be one year but the
Court considered this matter in the light of
the office memorandum dated 14.01.1999
the period would be reckoned only from the
date of last recommendation made. This
judgment has been relied upon by a
Coordinate Bench of this Court in the
matter of Priyadarshani Singh (supra)
cited before me and is helpful to me. In
arriving at a conclusion that period of one
year should start from the date of last
requisition sent by the Public Service
Commission and not the first one. The coordinate Bench held that in view of the fact
that rules framed under the proviso to
Article 309 of the Constitution do not
stipulate for the life span of the waiting list
to be prepared, this omission should be
supplied by borrowing the principles laid
down in common law. Interestingly the
Court was considering Rule 15(3) of U.P.
Subordinate Education (Assistant District
Inspectors of Schools) Services Rules,
1992. Rule 15 (3) of those Rules are in
themselves pari materia to Rule 15 (3)
under consideration in this case.