JUDGMENT : N.L. Ganguly, J. The Petitioner appeared in the regular competitive examination in the year 1976 for Provincial Civil services and Allied services the result was published in the December, 1977. The Petitioner states that he had obtained the qualifying marks and was given total 455 marks in aggregate. The allegation is that there were 11 vacancies in the Provincial Civil Services, three vacancies in the Provincial Police Services and 7 vacancies in the allied services in the State to be filled in by the members of the Scheduled Caste This allegation contained in para 3 of the writ petition and are undisputed in the counter affidavit filed by the Public Service Commission Admittedly, the Petitioner belongs to Scheduled Caste. It is stated that another candidate namely Sri Harish Chandra who also belonged to the Scheduled Caste was the last candidate given 455 marks in the competitive examination. 2. The Petitioner grievances is that Sri Harish Chandra who had obtained equal marks as that of the Petitioner was appointed in the allied service of of the P.C.S. He is working. The Petitioner submits that he has been discriminated. He being scheduled Caste having equal marks should have been given appointment at least in Allied Service. The prayer in the writ petition is for issuing a writ of mandamus directing the State of U.P. to provide an appointment in the Provincial Civil Service Cadre held in the year 1976, besides other usual reliefs. 3. Before coming to this Court, the Petitioner had made representation to the Chief Minister, Chief Secretary, Appointment, Secretary and Scheduled Caste Commissioner in this regard on 27th October 1978. It is also stated that after the representation was sent by the Petitioner, a subsequent development was there namely one Radhey Shyam of Scheduled Caste submitted his refusal on 11-1-79 to join the post of Dy. Superintendent of Police on which he was proposed to be appointed as a result of the examination. Since refusal by Radhey Shyam, one, vacancy allotted to the year 1976 was taken and Harish Chandra who had equal marks to the Petitioner was appointed in place of Radhey Shyam. The result was that there was still one vacancy available in Allied service. 4. Since refusal by Radhey Shyam, one, vacancy allotted to the year 1976 was taken and Harish Chandra who had equal marks to the Petitioner was appointed in place of Radhey Shyam. The result was that there was still one vacancy available in Allied service. 4. The Government vide letter No. 4-SC/II-8-302-64 dated February 18, 1964 notified by G.O. to all the Head of Departments and Principal, Head of the office in the State lay that if and when vacancy reserved for Scheduled Caste fell vacant as a result of dropping out of Scheduled Caste candidate, the same should be filled by a member of such Caste only. On the basis of this consideration, the Petitioner was entitled to be appointed against the vacancies which had fallen vacant in the cadre as a result of refusal by Radhey Shyam to join the post and cadre. A copy of the said letter of the Government is annexed by the Petitioners as Annexure 4. On the subsequent representation of the Petitioner, the appointment Secretary of the Government wrote a letter to the Public Service Commission on 11-12-79 that the Petitioner should be considered for appointment against the vacancy arising out after refusal of Radhey Shyam who joined the aforesaid eider. The Public Service Commission sent a reply to the State Government. The G.O. dated 30-1-79 issued by Karmik Anubhag is already annexed as Annexure 1 to the writ petition The Public Service Commission categorically stated in para 6 of the counter affidavit that for the appointment to the post in the Allied group of service, so far the question of recommending Harish Chandra in preference to the Petitioner is concerned, it was on competitive merit/seniority of the candidate getting equal marks is determined by the Public Service Commission on certain principles and on the basis of those principles, the petitioner's position was below that of Harish Chandra, who was recommended for the appointment to the post of lower group. The principles laid down by the Public Service Commission are quoted as under: (i) Candidate getting higher aggregate of marks in the Compulsory subjects of the written examination plus interview will be placed higher in merit. (ii) When the aggregate of compulsory subjects in the written examination plus the interview is equal, the one getting higher marks in the interview will be placed higher in the merit. (ii) When the aggregate of compulsory subjects in the written examination plus the interview is equal, the one getting higher marks in the interview will be placed higher in the merit. (iii) When the marks obtained by two candidates in compulsory subjects are equal and the marks obtained in the interview are also equal, the candidates higher in age will be placed higher in the merit 5. Further it is stated that the Commission had not recommended the name of the Petitioner for any post as Petitioner was neither qualified and eligible to be appointed in the regular P.C.S. or Allied on the basis of the marks obtained by him. He was much below than the last candidate among the Scheduled Caste candidates appointed. The marks allotted to Harish Chandra was 455 who was the last among the candidate given appointment whereas the Petitioner had secured 451 makes in P.C.S. Executive. The last candidate above Harish Chand in P.C.S. (Police) had obtained 456 and last candidates for P.C.S. Executive for Scheduled Caste was 468 minimum. The learned Counsel for U.P. Public Service Commission produced the original mark sheets obtained by the Scheduled Caste candidates appearing in the examination in the said year. It is worth mentioning that after the correspondence from the Public Service Commission was received by the State Government, the recommendation made by the State Government for considering the case of the Petitioner for being appointed was recalled. Thu<, it is abundantly clearly that the State Government reexamined the matter and was also of the opinion that the Petitioner was not entitled to be given any appointment on the basis of G O, referred above. 6. After hearing the learned Counsel for the Petitioner and learned Standing Counsel for the Public Service Commission and the learned Standing Counsel at length. I am of the view that the Petitioner being much lower than the last candidate selected in P.C.S. Executive and P.C.S Police or allied was not entitled to be appointed. 6. After hearing the learned Counsel for the Petitioner and learned Standing Counsel for the Public Service Commission and the learned Standing Counsel at length. I am of the view that the Petitioner being much lower than the last candidate selected in P.C.S. Executive and P.C.S Police or allied was not entitled to be appointed. The matter was considered by the Public Service Commission on the recommendation of the State Government again and the Commission after reexamining the fact was of clear view that the Petitioner had not obtained even the minimum qualifying marks of the last candidate of the Scheduled Caste who have been appointed There are number of persons above the Petitioner who had obtained higher marks than the Petitioner and they were not given any appointment or recommended for appointment. 7. The learned Counsel for the Public Service Commission submitted that the Union Government and the State Government are required to get the examinations conducted by the Public Service Commission for appointment to the services of the Union or under the State Government in accordance with provisions of Article 320 of the Constitution. He submitted that the Public Service Commission conduct examinations publishes its list of successful candidates for being appointed and since the list of such candidates to the Government. He further submitted that the Govt. is not obliged or legally bound to accept the recommendation and give appointment to all those who are qualified and successful in the list prepared by the Public Service Commission. He submitted that in Jatinder Kumar and Others Vs. State of Punjab and Others, (1985) 1 SCC 122 , the Hon'ble Supreme Court held that the recommendation of the Public Service Commission is mere advise on consultation by the Govt. and the Courts cannot issue a writ of mandamus for giving an appointment on the post. The Supreme Court supports the submission of the learned Standing Counsel for the Commission. No doubt the Government is not obliged to appoint all or any person recommended by the Commission for certain reasons but the Government cannot make any appointment unless the candidate is recommended by the Commission for appointment for the post to be filled through such commission. In the present case there had been no recommendation by the Commission for appointing the Petitioner. In the present case there had been no recommendation by the Commission for appointing the Petitioner. The State Government on representation of the Petitioner had requested the Commission to reconsider the case of the Petitioner for being recommended. As stated in the earlier paragraphs the Commission re-examined the case of the Petitioner and found that according to norms and merits, the Petitioner was not eligible to be recommended for appointment to PCS. Executive or P.C.S. Allied. 8. The other submission of the learned Counsel is that since there was no interim order or any direction for keeping the post vacant for t e Petitioner and on account of lapse of time there is no possibility of accommodation of Petitioner in any service. The petition is now infructuous, no relief can be granted. 9. Since I have consider the case of the Petitioner on merits I am satisfied there was no error of jurisdiction or any such question which may call for any interference by this Court and no writ of mandamus could be issued as prayed. 10. The writ petition is dismissed with no order as to costs.