# Virendra Kumar Srivastava v. State of U.P. through its Secretary Mahila Kalyan & Bal Vikas U.P

- **Citation:** (2006) 3 ILRA 1225
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-09-04
- **Case number:** Civil Misc. Writ Petition No. 11550 of 2003
- **Bench:** R.K. Agrawal, Vikram Nath
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/virendra-kumar-srivastava-v-state-of-u-p-through-its-secretary-mahila-kalyan-40685
- **Pages:** 9

## Headnote

Constitution of India, Art-226-Service
law-Process
of
selection-periodexplained-petitioner
being
placed
at
serial
No.10
in
waiting
list-claimed
appointment-as
nine
candidates
not
joined and 11 candidates resigned after
joining-whether is the refusal from
joining of petitioner valid? Held-'Yes'-
after joining of selected candidatesselection process end-candidates from
waiting list can be appointed if within
one year candidature from waiting list
can be appointed if within one year
candidature
of
selected
candidates
cancelled by any reason-petitioner can
not be appointed.

Held-Para 12 and 14
1226 INDIAN LAW REPORT ALLAHABAD SERIES [2006
Having given our anxious consideration
to the above facts, we do not find any
flaw
in
the
decision
of
the State
Government as contained in the office
order
dated
23.12.1997.
After
the
appointment letter is issued and upon
fulfillment of other requirements prior to
joining, when the selected candidate
joins the post, the process of selection
for that post is completed. From the
stage of advertisement of the said post
till the joining of the selected candidate
is the period when the selection process
can be said to be continuing, however,
upon joining , the process is completed.
The post so advertised for filling up no
longer remains vacant upon joining of
the candidate. Where after joining, the
post again falls vacant on account of
resignation, death, termination or for
any other reason, whether on the next
day, or subsequently then, it is a fresh
vacancy created at the time of such
happening. Such vacancy was not in
existence
at
the
time
when
the
advertisement was issued for which
select list/waiting list has been prepared
and would be of subsequent period and,
therefore, can only be covered by a fresh
advertisement. The decision of the State
Government in this regard as contained
in the office order dated 23.12.1997 is,
therefore, upheld.

In view of the above, it is only those lists
where the selected candidates had not
joined, and their candidature had been
cancelled within one year and request
sent to the Commission within one year,
which Could be said to be covered by the
waiting list. According to the State
Government during the life of the select
list/ waiting list as no candidature was
cancelled within a period of one year and
no request was sent to the Commission
within the same time, therefore, there
was no occasion to make appointment
from the waiting list.
Case law discussed:
AIR 1970 SCC-470
S.T. (2004) SCC-467
1992 (1) SCC 28,
1991 (1) Sec. 662
1197 (2) ESC 1011
1985 (4) SCC-417
AIR 1993 SC 796
AIR 2003 SC 2475
2006 (3) SCC-330
AIR 2001 SCC-3757
1997 (7) JJ (SCC) 537
1997 (4) Sec 283

## Text

3All] Virendra Kumar Srivastava V. State of U.P. and others 1225
"...............The conclusion as well
as the reasoning of the High court that the
permanent seat of the High Court is at
Allahabad is not quite sound.

.......................................

A case falling within the jurisdiction
of
Judges
at
Lucknow
should
be
presented
at
Lucknow
and
not
at
Allahabad.

 .....................A case pertaining
to the jurisdiction of the Judges at
Lucknow and presented before the Judges
at Allahabad cannot be decided by the
Judges at Allahabad in absence of an
order contemplated by the second proviso
the Article 14 of the Amalgamation
Order, 1948."

6. From the above, it is apparent that
the Judges at Lucknow and Allahabad
have to exercise jurisdiction over the
cases cognizable at the two places in
relation to their territorial jurisdiction.

7. Therefore, in my opinion, in view
of Section 23 of Code of Civil Procedure
and the above observations of the Hon'ble
Supreme court in Nasiruddin's case
(supra), the application for transfer of
case pending at Lucknow within the
territorial jurisdiction of Hon'ble Judges
at Lucknow, shall lie at Lucknow and not
at Allahabad. Therefore, office objection
in regard to the jurisdiction is sustainable.

8. However, Hon'ble Supreme Court
in Nasiruddin's case (supra) has observed
that if a case is wrongly presented at
Allahabad, the Judges at Allahabad
cannot dismiss it but the case should be
returned for filing before the Judges at
Lucknow.

9. Therefore, while holding that the
application
is
not
entertainable
at
Allahabad, it is hereby directed that the
same be returned for presentation at
Lucknow.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.09.2006

BEFORE
THE HON'BLE R.K. AGRAWAL, J.
THE HON'BLE VIKRAM NATH, J.

Civil Misc. Writ Petition No. 11550 of 2003

Virendra Kumar Srivastava ...Petitioner
Versus
State of U.P. through its Secretary
Mahila
Kalyan
&
Bal
Vikas
U.P.
Government Bapu Bhawan, Lucknow and
others

 ...Respondent

Counsel for the Petitioner:
Sri Yogesh Agarwal
Sri S.C. Budhwar
Sri V.B. Yadav
Sri J.P. Tripathi

Counsel for the Respondents:
Sri M.A. Qadeer
Sri S.M.A. Kazmi
Sri C.B. Yadav

Constitution of India, Art-226-Service
law-Process
of
selection-periodexplained-petitioner
being
placed
at
serial
No.10
in
waiting
list-claimed
appointment-as
nine
candidates
not
joined and 11 candidates resigned after
joining-whether is the refusal from
joining of petitioner valid? Held-'Yes'-
after joining of selected candidatesselection process end-candidates from
waiting list can be appointed if within
one year candidature from waiting list
can be appointed if within one year
candidature
of
selected
candidates
cancelled by any reason-petitioner can
not be appointed.

Held-Para 12 and 14
1226 INDIAN LAW REPORT ALLAHABAD SERIES [2006
Having given our anxious consideration
to the above facts, we do not find any
flaw
in
the
decision
of
the State
Government as contained in the office
order
dated
23.12.1997.
After
the
appointment letter is issued and upon
fulfillment of other requirements prior to
joining, when the selected candidate
joins the post, the process of selection
for that post is completed. From the
stage of advertisement of the said post
till the joining of the selected candidate
is the period when the selection process
can be said to be continuing, however,
upon joining , the process is completed.
The post so advertised for filling up no
longer remains vacant upon joining of
the candidate. Where after joining, the
post again falls vacant on account of
resignation, death, termination or for
any other reason, whether on the next
day, or subsequently then, it is a fresh
vacancy created at the time of such
happening. Such vacancy was not in
existence
at
the
time
when
the
advertisement was issued for which
select list/waiting list has been prepared
and would be of subsequent period and,
therefore, can only be covered by a fresh
advertisement. The decision of the State
Government in this regard as contained
in the office order dated 23.12.1997 is,
therefore, upheld.

In view of the above, it is only those lists
where the selected candidates had not
joined, and their candidature had been
cancelled within one year and request
sent to the Commission within one year,
which Could be said to be covered by the
waiting list. According to the State
Government during the life of the select
list/ waiting list as no candidature was
cancelled within a period of one year and
no request was sent to the Commission
within the same time, therefore, there
was no occasion to make appointment
from the waiting list.
Case law discussed:
AIR 1970 SCC-470
S.T. (2004) SCC-467
1992 (1) SCC 28,
1991 (1) Sec. 662
1197 (2) ESC 1011
1985 (4) SCC-417
AIR 1993 SC 796
AIR 2003 SC 2475
2006 (3) SCC-330
AIR 2001 SCC-3757
1997 (7) JJ (SCC) 537
1997 (4) Sec 283

(Delivered by Hon'ble Vikram Nath, J.)

1. This writ petition has been filed
with a prayer to quash the Office
Memorandum dated 31.01.2003 by which
the representation of the petitioner was
rejected by the State Government and
further for quashing the advertisement
dated
20.09.2002
published
in
the
Employment news. The second is for
issuing a direction in the nature of
mandamus commanding the opposite
parties to give appointment to the
petitioner against the vacancies existing
for the year 1997 for the post of Child
Development Project Officer.

2. The State Government issued
Advertisement No.A-6/E-1/97-98 inviting
applications for filling up the posts of Zila
Karyakram Adhikari (District Programme
Officer)
and
Bal
Vikas
Pariyojana
Adhikari (Child Development Project
Officer). The said advertisement was
published in the newspapers, pursuant to
which the petitioner applied and was
allotted Roll No. 010704. The petitioner
appeared in the written examination
which was held in April, 1198 the result
of which was declared on 13.10.1998 in
which
the
petitioner
was
declared
successful. The petitioner was called for
interview by the U.P. Public Service
Commission and he was interviewed on
07.11.1998.
3All] Virendra Kumar Srivastava V. State of U.P. and others 1227
3. The final result was declared on
16.11,1998 in which the petitioner was
not found selected. According to the
petitioner he had secured 626 marks out
of a total of 900 marks. Further according
to the petitioner in the waiting list
prepared by the commission his name
found place at serial No. 10. According to
the petitioner more than ten candidates
had not joined and 11 candidates had left
after joining pursuant to the declaration of
the result, as such he was entitled to be
issued
the
appointment
letter.
The
petitioner
submitted
a
representation
which was not being decided whereupon
the petitioner filed Writ Petition No.
41674 of 2002 the said writ petition was
disposed of by order of this Court dated
30.09.2002 with the direction to the State
Government to decide the representation
of the petitioner by a speaking order.
Pursuant to the said direction the State
Government had passed the impugned
order dated 31.0102003 rejecting the
claim of the petitioner relying on the
office
order
dated
31.01.1994
and
23.12.1997. It is this order, which is
sought to be challenged in the present writ
petition. Further, as the State Government
issued a fresh advertisement for filling up
64 posts of Child Development Project
Officer, the petitioner has challenged the
said advertisement also. The petitioner
has further prayed for a direction to the
respondents to appoint him against the
vacancies of 1997.

4. We have heard Sri S. C. Budhwar,
learned counsel assisted by Sri J.P.
Tripathi, Advocate appearing for the
petitioner, Sri M.A. Qadeer, learned
counsel appearing for the U.P. Public
Service Commission and the learned
Standing Counsel appearing for the
respondent nos. 1 and 2. We have also
perused the original record which was
summoned by this Court vide order dated
19.09.05.

5. The submission of the learned
counsel for the petitioner is that the
respondents committed illegality in not
issuing
appointment
letter
to
the
petitioner. According to him from the
declared list of successful candidates
more than ten had not joined within the
period of one year which was the life of
the select list/waiting list and, therefore,
the petitioner should have been offered
the appointment. The petitioner had been
agitating for his claim from the very
beginning and the respondents having not
taken any timely action in this regard and
having to acted in time by not issuing the
appointment letter cannot subsequently
turn around and say that as the life of the
select list has expired due to the fact that
more than one year has elapsed therefore,
the petitioner cannot be issued the
appointment letter.

6. Further submission of the counsel
for the petitioner is that even after the
expiry of the waiting list appointment
letter could be issued and therefore the
respondents are not right in saying that
after the lapse one year and expiry of the
life of the waiting list appointment letters
cannot be issued. The learned counsel for
the petitioner has placed reliance upon the
following three decision of Hon'ble Apex
Court in support of his contention that
even after the expiry of the life of the
waiting list the candidates from the
waiting list could be given appointments.
The cases relied upon are:

(i) Rabindra Nath Bose and others
Vs. Union of India & others reported in
AIR 1970 S.C. 470,
1228 INDIAN LAW REPORT ALLAHABAD SERIES [2006
(ii) Sheo Shyam & others Vs. State of
U.P. & others reported in J.T (2004) 2
(SC) 467, and
(iii) Ashok alias Somanna Gowda &
another Vs. State of Karnataka reported
in (1992) 1 SCC 28.

7. On the other hand the learned
Standing Counsel on behalf of the State
Government has submitted that after the
expiry of the life of the waiting list
nothing further could be done and no
appointment can be made thereafter. He
has referred to various Office Order
issued by the Government from time to
time in this regard laying down its policy
in matters relating to the life of the select
list.

8. It has further been urged by the
learned Standing Counsel that as the
waiting list had never been requested for
from the Commission, there is no waiting
list with the State Government and in fact
no consideration was ever made on the
waiting list. Even if it is assumed that the
name of the petitioner finds place in the
waiting list he has no vested right to seek
appointment on its strength.

9. The life of select list and the
manner in which the waiting list if any
prepared is to be used is governed under
the Office Order dated 31.01.94 filed as
Annexure CA-1 to the counter affidavit
filed by Sri Bhuiyadin, Special Secretary,
personnel Department. According to the
same appointment letters would be issued
within 3 months, the character verification
and medical examination should be
obtained at the earliest. Clause 5 of the
said office order provides that the life of
the waiting list will be one year whether it
is for annual competitive examinations or
for special selections. It also mentions
that request can be made to the
Commission
within
one
year
only,
however where the commission despite
request being sent within one year does
not send the waiting list has not been used
within the prescribed period or the
waiting list has not been used within the
prescribed period or the waiting list is not
called for from the Commission within
the prescribed time then all the remaining
vacancies will stand merged with the
vacancies of the next year.

10. According to the learned
Standing counsel after receipt of the
recommendation from the Commission on
16.11.1998 the life of the select list was
for a period of one year and was valid till
15.11.1999. Further according to the State
Government during this period of one
year only those vacancies where the
selected candidates had not joined and
their candidature were cancelled on
account of non joining within the
stipulated period, could be filled up from
the waiting list, if any, prepared by the
commission for providing the waiting list
within one year. After lapse of one year
no
request
could
be
sent
to
the
Commission.

11. It is further the stand of the State
Government that where a candidate joined
and subsequently resigns even though
within the period of one year, such
vacancy would stand exhausted upon
joining of the candidate and subsequently
resignation would not leave a vacancy for
being filled up from the waiting list. All
vacancies/posts which were filled up upon
joining and subsequently vacated would
not be covered by the waiting list from the
same selection and they were treated to be
vacancies after the advertisement under
which selections were being made. Such
3All] Virendra Kumar Srivastava V. State of U.P. and others 1229
vacancies were to be carried forward for
the next year and could be filled up
pursuant to the next advertisement for
selection. In this regard our attention was
invited to clause 3 of the Office Order
dated 23.12.97 filed as Annexure CA-2 to
the
counter
affidavit
filed
by
Sri
Bhuiyadin, Special Secretary, Personnel
Department, which clearly mentions that
the State Government has taken a decision
that waiting list cannot be utilized for
filling up vacancies caused upon the
resignation or otherwise by the selected
candidates after joining as upon joining
the vacancy advertised stand fulfilled or
exhausted.

12. Having given our anxious
consideration to the above facts, we do
not find any flaw in the decision of the
State Government as contained in the
office order dated 23.12.1997. After the
appointment letter is issued and upon
fulfillment of other requirements prior to
joining, when the selected candidate joins
the post, the process of selection for that
post is completed. From the stage of
advertisement of the said post till the
joining of the selected candidate is the
period when the selection process can be
said to be continuing, however, upon
joining, the process is completed. The
post so advertised for filling up no longer
remains vacant upon joining of the
candidate. Where after joining, the post
again
falls
vacant
on
account
of
resignation, death, termination or for any
other reason, whether on the next day, or
subsequently then, it is a fresh vacancy
created at the time of such happening.
Such vacancy was not in existence at the
time when the advertisement was issued
for which select list/waiting list has been
prepared and would be of subsequent
period and, therefore, can only be covered
by a fresh advertisement. The decision of
the State Government in this regard as
contained in the office order dated
23.12.1997 is, therefore, upheld.

13. Along with the writ petition, the
petitioner has annexed copies of two
judgments of this court as Annexure 12
and 13. Based on these judgments, it is
contended that the vacancies, which are
caused due to resignation of the selected
candidates, are to be filled up from the
waiting list. The judgment annexed as
Annexure 13 is a judgment of learned
Single Judge dated 04.01.2000 passed in
Civil Misc. Writ Petition No. 12921 of
1999, Shivendra Nath Singh &others
Vs. State of U.P. & ors. Firstly, this
order was passed in the absence of any
counter affidavit. Secondly the waiting
list in this case was sent by the
commission. Thirdly, this judgment did
not lay down any law of its own, but only
relied upon the judgment dated 09.04.98
passed in Civil Misc. Writ Petition No.
32389 of 1997, Yogendra Kumar Pal
Vs. State of U.P. & Anr. Filed as
Annexure 12 to the writ petition. Coming
to this judgment, we find that in this case
also the learned Single Judge relied upon
another decision of this court in the case
of Abdul Wasim Vs. Collector, Budaun,
1997(2) ESC 1011. In the case of Abdul
Wasim (Supra), the issue as to whether
vacancies caused due to resignation of
selected candidates, who had joined,
could be filled up from the waiting list
was not directly in issue. In that case, the
vacancies caused due to retirement were
partly filled from the waiting list was
cancelled during its life, and such order of
cancellation was under challenge on the
ground
of
discrimination.
Any
observation made in the course of
1230 INDIAN LAW REPORT ALLAHABAD SERIES [2006
discussion would not amount to any ratio
of law laid down.

We are, therefore, of the view that
these decisions are clearly distinguishable
and do not help the petitioner.

14. In view of the above, it is only
those lists where the selected candidates
had not joined, and their candidature had
been cancelled within one year and
request sent to the Commission within
one year, which Could be said to be
covered by the waiting list. According to
the State Government during the life of
the select list/ waiting list as no
candidature was cancelled within a period
of one year and no request was sent to the
Commission
within
the
same time,
therefore, there was no occasion to make
appointment from the waiting list.

15.

In
para
8
of
the
2nd
supplementary counter affidavit filed on
behalf of the respondent, sworn by Smt.
Neelam Ahlawat, Additional Director, Bal
Vikas Sewa Evam pushtahar, details have
been furnished with regard to the
candidates to whom appointment letters
were issued and upon their failure to join,
their candidature were cancelled. We find
that in all cases, the cancellation took
place in the year 2000, i.e., after the
expiry of one year. It may, thus, be
concluded that the State Government had
no occasion to call for the waiting list and
as rightly contended by it, no request was
sent by the State Government to the
Commission to send the waiting list.

16. Now coming to the contention of
the petitioner with regard to the averments
made in paragraph nos. 13 and 14 of the
writ petition wherein the petitioner has
given a list of candidates who either did
not join or after joining tendered their
resignations. Paragraph no 13 contains
only 9 names which is the list of the
selected candidates who did not join
whereas paragraph no. 14 contains 11
names of those candidates who after
joining lift the employment and/ or
tendered their resignations. As already
observed above the law with regard to
panel of waiting list candidates is
applicable only where the candidates have
not joined and their candidature is
rejected within the life of the select list. It
is not applicable to situations where after
joining the candidates have subsequently
left even though within the life time of the
waiting list. Such posts falling vacant
upon resignation or otherwise cannot be
filled up from the waiting list as selected
candidates upon joining have exhausted
that posts and subsequently even if on the
next day it falls vacant upon resignation
or otherwise, such vacancy will be for the
future and cannot be counted for the
vacancies which were advertised

17. Thus, at best only the contention
with regard to the averments made in
paragraph 13 of the petition, according to
which only 9 candidates who had not
joined remains to be determined in the
present controversy. In this regard, from a
perusal of second supplementary counter
affidavit sworn by Smy. Neelam Ahlawat,
it is apparent that the candidature of the 9
candidates mentioned in para no.13, were
cancelled only in the year 2000 and ,
therefore, being beyond the last date of
the life of the waiting list, i.e. 15.11.99,
no benefit could be given to any of the
candidates of the waiting list even if it
was prepared and sent to the State
Government. Further with regard to the
candidates mentioned in para 14 of the
writ petition adequate reply has been
3All] Virendra Kumar Srivastava V. State of U.P. and others 1231
given in para no 8 of the second
supplementary counter affidavit which
gives the date of their joining and the date
of their resignation or the reasons for not
continuing. All these dates extend beyond
the life of the select list barring one
candidate Pramod Kumar Singh who is
said to be still working.

18. Even though the petitioner
cannot succeed in view of the above
discussion, but as the original record was
summoned from the Commission, we
proceed to examine the same.

19. The Commission was requested
to produce in a sealed cover the position
of the petitioner in the merit list in the
examination of 1998 conducted by it for
the posts against which the petitioner had
applied. The record was produced and
from a perusal of the same it transpires
that in the combined merit list the last
selected candidate was at serial no. 85
whereas the petitioner's position was at
serial no. 104 and in the general category
to which the petitioner actually belongs
the last selected candidate was at serial
no. 58 whereas the petitioner was placed
at serial no. 70. Thus we see that under
both the lists the petitioner was below the
10th position from the last selected
candidate. There could not have been any
justification for issuing the appointment
letter to the petitioner even if 10
candidates had not joined within the life
of he select list.

20. Considering the decisions relied
upon by the counsel for the petitioner, we
find that the case of Rabindra Nath bose
& ors. (Supra) related to preparation of
seniority list and has, therefore, no
application to the present case.

21. In the case of Sheo Shyam &
Ors, (Supra), the Supreme Court in the
facts and circumstances peculiar to that
case, wherein the State Government and
the Commission had taken inconsistent
and varying stands and the moves adopted
by the State Government and the
Commission were different for different
stages
and
different
purposes,
had
directed
for
consideration
of
the
appellant's case for appointment, if
otherwise, found suitable. The Apex
Court in the said case had held that one
year validity should be computed from the
State
Government
had
made
the
appointments in installments and the
difference of time in the first installment
and last installment was two and a half
years. From perusal of the writ petition,
we find that no such plea has been raised
nor any foundation had been laid with
regard to the date of first requisition or
last requisition and even otherwise in the
facts of the present case, the petitioner,
who
was
almost
placed
after
20
candidates
from
the
last
selected
candidates in the combined merit list and
after 12 candidates in the general category
list, to which he belongs and their being
only 9 vacancies, he could not have been
called. Although, in the rejoinder affidavit
and supplementary rejoinder affidavits,
the petitioner has tried to allege the dates
regarding issue of first appointment letter
and the last appointment letter, but in
view of the above facts cannot gain any
advantage from the decision for the Apex
Court as in the said case, the question was
of first requisition and last requisition. In
the present case, there was only one
requisition.

22. In the case of Ashok alias
Somanna Gowda & Anr. (supra), we
find that the Apex Court directed for
1232 INDIAN LAW REPORT ALLAHABAD SERIES [2006
appointment of the appellants therein,
who had challenged the selection on the
ground that the allotment of marks in the
viva voce was 33.3%, which was much
beyond the maximum number of marks
for viva voce determined by the Apex
Court in the case of Ashok Kumar
Yadav Vs. State of Haryana reported in
(1985) 4 SCC 417 and Mohindra Singh
Garg Vs. State of Punjab reported in
(1991) 1 SCC 662 and upon reduction of
the viva voce marks proportionately of all
the
candidates,
who
were
selected
including those of the petitioners, the
Apex Court come to the conclusion that
the marks obtained by the petitioner
would be more than those selected
candidates. In the present case, there is no
such claim made by the petitioner that the
candidates with lesser marks have been
selected nor has he challenged the
selection any ground. Thus, this case also
does not help the petitioner.

23. It would not be out of place to
mention here that the law is well settled
that even a selected candidate has no
indefeasible right to be appointed. In the
present case, petitioner is not one of the
selected candidate whose name has been
recommended by the Commission in the
select list, but he claims to be in the
waiting list. Since it is well settled that a
selected candidate does not have a vested
right of appointment, the petitioner on his
own claim being in the waiting list cannot
be said to have any right much less vested
or indefeasible right to be appointed. In
this regard, the Apex Court in the case of
Union Territory of Chandigarh Vs.
Dilbagh Singh & Ors, reported in AIR
1993 SC 796 has held as follows:

"A candidate who finds a place in
select list as a candidate selected for
appointment to a civil post, does not
acquire an indefeasible right to be
appointed in such post in absence of any
specific rule entitling him for such
appointment and he could be aggrieved by
his non-appointment only when the
Administration does so either arbitrarily
or for no bona fide reasons, it follows as a
necessary concomitant that such candidate
even if has a legitimate expectation of
being appointed in such posts due to his
name finding a place in the select list of
candidates, cannot claim to have a right to
be heard before such select list is
cancelled for bona fide and valid reasons
and nor arbitrarily."

Again the Apex Court in the case of
State of A.P. & Ors. Vs. D. Dastagiri &
Ors, reported in AIR 2003 SC 2475 has
held as follows:-

"Be that as it may, even if the
selection process was complete and
assuming that only select list was
remained to be published, that does not
advance the case of the respondents for
the simple reason that even the candidates
who are selected and whose names find
place in the select list, do not get vested
right to claim appointment, do not get
vested right to claim appointment based
on the select list."

Recently in the case of State of U.P.
& Ors. Vs. Rajkumar Sharma & Ors.
Reported in (2006) 3 SCC 330, the Apex
Court has held as follows:-

"Selectees
cannot
claim
the
appointment as a matter of right. Mere
inclusion of candidate's name in the list
does not confer any right to selected, even
if some of the vacancies remained unfilled
and the candidate s concerned cannot
3All] Rahul Kumar Yadav V. State of U.P. 1233
claim that they have been given a hostile
discrimination."

24. Apart from the above in the
following three decisions, (1) Sri Kant
Tripathi Vs. State of U.P., AIR 2001 SC
3757 (2) Surinder Singh Vs. State of
Punjab, (1997) 7 JJ (SC) 537 (3) Sanjoy
Bhattacharjee Vs. Union of India,
(1997) 4 SCC 283, it has been held by the
Apex Court that a wait listed candidate
had no vested right to be appointed except
when a selected candidate does not join
and the waiting list is still operative. In
the present case, no waiting list was called
by the State Government. In the present
case, no candidature was cancelled during
the life time of the select list and,
therefore, there was no question of
inviting any name from the Commission
from waiting list.

25. We may, thus, safely conclude
that the petitioner does not have any case
either on facts or on law and therefore the
writ petition being devoid of merits is
liavle to be dismissed.

26. The writ petition is accordingly
dismissed. However, in the facts and
circumstances of the case, there shall be
no order as to costs. Petition Dismissed.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.08.2006

BEFORE
THE HON'BLE G.P. SRIVASTVA, J.

Criminal Misc. (Second) Bail Application
No. 15859 of 2006

Rahul Kumar Yadav

...Applicant
Versus
State of U.P.

...Opposite Party
Counsel for the Applicant:
Sri P.K. Pandey

Counsel for the Opposite Party:
A.G.A

N.D.P.S. Act- Section 8/22-recovery of
tablets of 800 gram diazepam-only plea
taken in second Bail Application- the
applicant in jail since 26.12.05-e.g. less
than half of maximum punishment-held-
not entitled for release on bail.

Held: Para 5

As regards the first ground is concerned
an accused cannot be entitled to bail
only because he had spent some period
in jail not even the half of the maximum
punishment, which may attract.

(Delivered by Hon'ble G.P. Srivastava, J.)

1. Heard learned counsel for the
applicant and learned A.G.A.

2. This is second bail application for
bail on behalf of applicant Rahul Kumar
Yadav who is involved under section 8/22
N.D.P.S Act for having been found in
possession of 800 grams Diazapam
Tablets kept in 4 packets.

3. The first bail application was
rejected by this Court vide order dated
2.5.06 on merit.

4. Learned counsel for the applicant
has argued the first ground that the
applicant is in jail since 26.12.2005
therefore he should be released on bail.
He has taken the second ground that the
real weight of recovered Tablets are 800
gms but the weight of the contraband
diazepam in the tablet form is much less
than the real actual weight and after