R. B. MISRA, J. Heard Sri Anil Tiwari, learned Counsel for the petitioners; Sri Ashok Khare, learned Senior Advocate assisted by Sri V. K. Singh, learned Counsel for Malaria Association, and Sri Raj Kumar/ Miss. Enakshi Sharma, learned Standing Counsels for the State respondents. In the present writ petition the petitioners have prayed for issuance of writ of mandamus commanding the respondents to issue appointment letters to them to the post of Assistant Malaria Officer as they had duly participated in the Combined State Subordinate Services Examination, 1999 conducted by the Uttar Pradesh Public Service Commission and they have been declared successful. 2. The Uttar Pradesh Public Service Commission (hereinafter in short called as "commission) conducts examinations for recruitment to different cadre of posts including the posts in Upper Subordinate Services and Lower Subordinate Services through Combined State/upper Subordinate Services Examination. The examination is conducted not for individual post, but for different posts requisitioned by the State Government. The Combined State/subordinate Services Examination is a time bound examination conducted by Commission, each year. The aforesaid examination is consisting in three stages. The first stage is preliminary examination, through which candidates are screened out for the main (written examination) i. e. second stage, which is followed by interview i. e. the third stage. The candidates declared successful after interview are allotted posts in various departments on the basis of their merits and preferences given by them. 3. According to Para 2 (6) of the Uttar Pradesh Direct Recruitment through Public Service Commission (Preliminary Examination) Rule, 1986 the "preliminary examination" is the screening test to be conducted by the Commission with the purposes of finding out suitable candidate for admission to the main examination or interview; and as per Para-2 (9) of the said Rule, 1986 the "main examination" or interview means the examination or interview as per relevant service Rules and Govt. Orders. 4. Generally the advertisement for preliminary examination is notified in the month of January and the examinations of preliminary and main examination are held in the month of May/ June and October/ November respectively. Final result is declared in the month of May next year. Thus, in order to include maximum number of vacancies in the aforesaid examination, such selection procedure is followed by the commission each year and that is the reason by which the vacancies increase at the time of preliminary examination each year. Final result is declared in the month of May next year. Thus, in order to include maximum number of vacancies in the aforesaid examination, such selection procedure is followed by the commission each year and that is the reason by which the vacancies increase at the time of preliminary examination each year. However, vacancies at the time of preliminary examination are final and no new vacancies are to be added further once preliminary examination is held. If the Commission receives any further vacancy after the preliminary examination, those are to be included in the succeeding year Combined State Examination, as a settled procedure of the commission. In the present case, the advertisement No. A-1/e-1/1999 was issued by the Commission for conducting the Combined State/ Subordinate Services (Preliminary Examination) 1999 and the applications were invited for the purpose. There is no provision in the aforesaid examination to apply for any individual post. The Commission allots the post to the successful candidates in the final merit list according to their merits and the preferences given by them at the time of interview. 5. The post concerned of Assistant Malaria Officer is lower subordinate post, which was brought in the purview of commission vide Govt. Notification No. 679/ka-3-98-13/40/97 dated 27-2-1998. It was clearly stipulated in the para 2 of the above named advertisement - "some of the vacancies of the Combined State/upper Subordinate/ Lower Subordinate services have not been communicated by the Government and if the vacancies are communicated by the Govt. prior to the date of preliminary examination, the selection shall be made through this examination. The Government vide its letter No. A/mal-AMO/99/1/1222 dated 4-3-1999 requisitioned 57 posts of Assistant Malaria Officer to fill-up through the aforesaid examination prior to the preliminary examination, 1999. The Commission thereafter received the requisition of 5 different types of post prior to the preliminary examination and all the 5 posts were thus included in this examination after the advertisement of the aforesaid examination. The Commission provided the detail of the posts and the number of vacancies to each candidate who was declared successful in the preliminary examination. The aforesaid five posts, which were added to this examination after the advertisement but prior to the preliminary examination, are as follows: (A) Treasury Officer -9 posts. (B) District Panchayat Raj Officer -10 posts. (C) Deputy Jailor -47 posts. (D) The Assistant Malaria Officer -57 posts. The aforesaid five posts, which were added to this examination after the advertisement but prior to the preliminary examination, are as follows: (A) Treasury Officer -9 posts. (B) District Panchayat Raj Officer -10 posts. (C) Deputy Jailor -47 posts. (D) The Assistant Malaria Officer -57 posts. (E) Marketing Inspector.-256 posts. Thus, the total vacancies were increased from 478 to 917 at the time of preliminary examination and the final selection was made for 917 vacancies. 6. According to learned Counsel for the petitioners, similarly in the year 2000 and 2001 in Combined State/subordinate Services Examination, the vacancies were increased after the date of advertisement but prior to the date w of preliminary examination. In the year 2002 the commission has not even advertised a single post at the time of the preliminary, examination. This clearly shows that the advertisement of the posts are not at all required before the main (written) examination because preliminary exam is merely a screening examination to find out the suitable candidates for admission to the main examination. The main examination is the real examination taken as per relevant service rules and Government orders, and before this main examination the posts concern must be advertised to provide equal chances to all the suitable eligible candidates and the same procedure thus was adopted in the aforesaid examination of 1999, where the Commission about each and every vacancy has intimated by registered post to all the suitable candidates, who had passed the screening test including the 57 post of Assistant Malaria Officer. 7. According to learned Counsel for the petitioners, the petitioners were duly selected to the posts, which were added after the advertisement of the aforesaid examination but prior to the preliminary examination, however they were being denied appointment on the ground that the above post was not advertised. The candidates selected on the other posts, which were also added with the post in question, were given appointments in their respective departments and all of them are working. The commission has stated in para-2 of its counter affidavit that the advertisement of the aforesaid examination clearly stipulated that some more vacancies were likely to be added to this examination, if they are received prior to the preliminary examination. 8. The commission has stated in para-2 of its counter affidavit that the advertisement of the aforesaid examination clearly stipulated that some more vacancies were likely to be added to this examination, if they are received prior to the preliminary examination. 8. The petitioners are the bona fide candidates duly selected by the commission to the post of Assistant Malaria Officer and the appointment in question was never challenged by anybody and the fairness of the selection was never in question and in pursuance of the interim order dated 4-5-2001 of this Court passed in the present writ petition, the petitioners were able to join their services in December, 2002 and now they are working regularly. 9. The respondent/u. P. Malaria Nirikshak Sangh, Lucknow (hereinafter in short called as sangh) in the present writ petition, filed an impleadment application, which was allowed by this Court on 18-9-2003. This sangh is pursuing the cause of Senior Malaria Inspectors, who have objected the appointment of the petitioners. The sangh has filed one another Writ Petition No. 3268 of 2000 before High Court (Lucknow Bench), wherein an order dated 23-6-2000 was passed, which reads as under: "four weeks time is allowed to the opposite parties to file counter affidavit. Rejoinder Affidavit, if any, be filed within next one week. List thereafter. Learned Counsel for, the petitioners submits that before issuing the appointment letter, the respondents may look into the fact as to whether the post in question is within the purview of the U. P. Public Service Commission or not and whether the post was advertised or not. Accordingly it is directed that before issuing the appointment letter the above acts be looked into by the authorities concerned. Sd/-J. Bhalla, J. 23-6-2000. " According to the respondents, in response to the above queries dated 23-6-2000 the State Government had filed the affidavit stating its stand. In the counter affidavit of the State Government it has been indicated that the post of Assistant Malaria Officer is within the purview of the Commission and the post of Assistant Malaria Officer for the relevant year was added during the process of selection. 10. In the counter affidavit of the State Government it has been indicated that the post of Assistant Malaria Officer is within the purview of the Commission and the post of Assistant Malaria Officer for the relevant year was added during the process of selection. 10. It has been submitted on behalf of sangh that, as under: (I) A requisition for this post of Assistant Malaria Officer was sent by the State Government to Commission only in the month of March, 1999 and not before the advertisement dated 1-1-1999, whereby a total number of 478 posts comprising of 22 categories of post namely, Deputy Collector, Deputy Superintendent of Police; Assistant Regional Transport Officer, Superintendent of Jail, Associate District Inspector of Schools/ District Basic Education Officer; Manager (Marketing)/ Manager (Loans); Assistant Director of Industries; District Backward Class Welfare Officer; Passenger Tax/goods Tax Officer; Deputy Regional Registrar Officer; Assistant Accounts Officer; Sub Registrar; Trade Tax Officer Grade-II; Assistant Controller of Weights and Measure; Sanyukta Abhiyokta; Law Assistant; Supply Inspector and Accounts Examiner Transport Department were advertised. (II) Recruitment to the post of Assistant Malaria Officer is governed by the UP. Malaria (non Gazetted) Rules, 1993, Rule-8 of the rules, 1993 specifies the minimum educational qualification for the post of Assistant Malaria Officer as a graduate degree in Science with Zoology as one of the subjects. (III) Advertisement dated 01-1-1999 in question did specify the requisite educational qualifications with regard to the 22 category of posts specified in the said advertisement, but the same did not include a single post of any category, which may have Bachelor of Science with Zoology as one of the subject as the minimum educational qualification. For example, the post of Associate District Inspector of Schools/ Basic Shiksha Adhikari required possession of a Masters degree, the post of Assistant Labour Commissioner required the possession of a graduate degree in Commerce or law or Bachelor of Arts with Economics or Sociology as one of the subject the post of Assistant Controller of Weights and Measures required the possession of a Bachelor degree in Science with Physics or Mechanical Engineering etc. However, none of the advertised post required the possession of Bachelor of Science with Zoology as one of the subject of studies. (IV) The posts, which are advertised) could be filled up on the basis of selection held in pursuance to the advertisement. However, none of the advertised post required the possession of Bachelor of Science with Zoology as one of the subject of studies. (IV) The posts, which are advertised) could be filled up on the basis of selection held in pursuance to the advertisement. Any unadvertised post can not be subject matter of selection in pursuance to the advertisement in question. (V) In support of his contentions learned Counsel for respondent sangh has placed reliance on 1993 Supp. (4) SCC 377 (Hoshiar Singh v. State of Haryana and others); (1996) 4 SCC 319 (Prem Singh and others v. Haryana State Electricity Board and others; (2001)10 SCC 237 (Sri Kant Tripathi and others v. State of U. P. and others) and AIR 2002 SC 1230 (K. Shekar v. V. Indiramma and others ). In Hosiyar Singh (supra) an advertisement was issued for filling up 6 posts of Inspector of Police, however, in pursuance to the selection the respondents proceeded to grant appointment to 19 persons, therefore, the appointments made in excess to the advertised posts were said to be invalid and the Supreme Court upheld the judgment of the High Court quashing the appointment of persons to the posts in excess of the advertised post. In Prem Singh (supra) the Haryana State Electricity Board had advertised 62 posts of Junior Engineer, whereas, against the 62 advertised posts, a select list of 212 candidates was prepared, out of which 147 candidates were granted appointment, therefore, the selection and appointment of candidates in excess to 62 advertised post for Junior Engineer was held to be invalid as violating Articles 14 and 16 of the Constitution. In K. Shekar (supra) the advertisement5 itself contained a clause enabling the selection committee to recommend candidates for lower posts than the posts applied for, and on the basis of said clause it was claimed that recommendations and appointment could be made for appointment against the post lower than the posts advertised, however, despite the existence of such clause in the advertisement the Supreme Court held that no selection/ appointment could be made against\any unadvertised post as the same was in contravention of the provisions of Articles 14 and 16 of the Constitution. (VI) On the basis of the requisition received, in March, 1999 the Commission issued a subsequent advertisement, which advertisement No. A-1/e-1/2001 in pursuance to which a large number of persons already working as Malaria Inspector/ Senior Malaria Inspector applied before the Commission and qualified the preliminary examination held on 3-6-2001. The vacancy being covered by advertisement No. A-1/e-1/2001 can be filled up only on the basis of recommendation of the Commission made in pursuance to the said advertisement. The select list prepared in pursuance to advertisement No. A-1/e- 1/99 can not be utilized after the issuance of the subsequent advertisement. 11. In the Uttar Pradesh Malaria (Non-Gazetted) Service Rules, 1993 (hereinafter in short called as rules, 1993) part-Ill deals with the recruitment, where Rules-5 and 6 provide as under: "5. Source of recruitment.- Recruitment to the various category of posts in the service shall be made from they following sources: (1) Assistant Malaria Officer.- (i) Fifty per cent by promotion through the Selection Committee from amongst substantively appointed Senior Malaria. Inspectors who have completed three such on the first day of the year of by direct recruitment through the years service recruitment. (ii) Fifty per cent by direct recruitment through the Commission. (2) Senior Malaria Inspector.- By promotion through the Selection Committee from amongst substantive appointed malaria Inspectors who have completed ten years of service as such on the first day of the year of recruitment. (3) Malaria Officer – By direct recruitment through the Commission. " "6. Reservation.- Reservation for the candidates belonging to the Scheduled Castes, Scheduled Tribes and other categories shall be in accordance with the orders of the Government in force at the time of the recruitment. " Part-IV of the rules, 1993 deals with the qualification, where Rules-and 10 provide as under: "8. Academic qualification.- A candidate for direct recruitment to the various posts in the service must possess the following qualifications: Post Qualification. (i) Assistant Malaria Officer Bachelors degree in Science with Zoology from a University established by law in India or a degree declared by the Government as equivalent thereto. (ii) Malaria Inspector Intermediate Science Examination with Biology and the Board of High School and Intermediate Education,, Uttar Pradesh or an examination recognized by Government as equivalent thereto. 10. (i) Assistant Malaria Officer Bachelors degree in Science with Zoology from a University established by law in India or a degree declared by the Government as equivalent thereto. (ii) Malaria Inspector Intermediate Science Examination with Biology and the Board of High School and Intermediate Education,, Uttar Pradesh or an examination recognized by Government as equivalent thereto. 10. Age.- A candidate for direct recruitment must have attained the age of twenty years and must not have attained the age of more than thirty years on the first day of July of the year of recruitment in which the vacancies are advertised by the Commission. " Part-V of rules, 1993 deals with the procedure for direct recruitment (through the Commission), where Rules-14,15 and 17 provide as follows: "14. Determination of vacancies.- The appointing authority shall determine and intimate to the Commission or notify the Employment Exchange as the case may be, the number of vacancies to be filled during the course of the year as also the number of vacancies to be reserved for candidates belonging to the Scheduled Castes, Scheduled Tribes and other categories under Rule 6. " "15. Procedure for direct recruitment through the Commission.- (1) Application for permission to appear in the competitive examination shall be invited by the Commission in the prescribed form published in the advertisement by the Commission. (2) No candidate shall be admitted to the examination unless he holds Admit Card, issued by the Commission. (3) After the results of the written examination have been received and tabulated, the Commission shall, having regard to the need for securing due representation of candidates belonging to the Scheduled Castes, Scheduled Tribes find other categories in accordance with Rule 6, prepare a list of candidates in order of their proficiency as disclosed by the marks obtained in the written examination and recommend such number of candidates as they consider fit for appointment If two or more candidates obtain equal marks, in the written examination, the name of the candidates will be arranged viewing their general suitability i. e. academic qualifications etc. The number of the names in the list shall be larger (but not larger by more than 25 per cent) than the number of the vacancies. The Commission shall forward the list to the appointing authority. " "17. The number of the names in the list shall be larger (but not larger by more than 25 per cent) than the number of the vacancies. The Commission shall forward the list to the appointing authority. " "17. Procedure for recruitment by promotion through the Selection Committee.- (1) Recruitment by promotion shall be made on the basis of seniority subject to rejection of unfit through the Selection Committee constituted as under: (i) Appointing authority. (ii) Two gazetted officers nominated by the appointing authority having supervisory capacity of the post, for which selection is made. (2) The appointing authority shall prepare an eligibility list of candidates in accordance with the Uttar Pradesh Promotion by Selection on Posts Outside the Purview of the Public Service Commission, Eligibility List Rules, 1986 and place the same before the Selection Committed along with their character rolls and such other records, pertaining to them, as may be considered proper. (3) The Selection Committee shall Consider the cases of candidates on the basis of the records referred to in sub-rule (2), and if it considers necessary, it may interview the candidates also. (4) The Selection Committee shall prepare a list of selected candidates arranged in order of seniority as it stood in the cadre from which they are to be promoted and forward the same to the appointing authority. " Rule-28 of Part-VIII of Rules,1993 provides as under: "28. Relaxation in the conditions of service.- Where the State Government is satisfied that the operation of any rule regulating the conditions of service of persons appointing to the Service causes undue hardship in any particular case, it may, notwithstanding anything contained in the rules applicable to the case, by order, dispense with or relax the requirements of that rule to such extent and subject to such conditions as it may consider necessary for dealing with the case in a just and equitable manner. " At serial No. 2 of advertisements published for Combined State/upper Subordinate Services (Preliminary) Examination-2001as well as 2002, it has been indicated as under: 0 "2. Number of vacancies: - Approximate No. of vacancies is 300. The No. of vacancies may increase or decrease. Many of the requisitions for this Examination have yet not been received by the Commission. " At serial No. 2 of advertisements published for Combined State/upper Subordinate Services (Preliminary) Examination-2001as well as 2002, it has been indicated as under: 0 "2. Number of vacancies: - Approximate No. of vacancies is 300. The No. of vacancies may increase or decrease. Many of the requisitions for this Examination have yet not been received by the Commission. Before the result of Preliminary Examination, the vacancies informed by the Departments shall be added to this Examination and details of vacancies shall be published in the newspapers. " 12. According to the petitioners, the conditions of advertisement and subsequent requisition for Assistant Malaria Officer are equally applicable to the petitioners as well as to the members of the sangh. The members of sangh are promotees from the post of Malaria Inspector to the post of Senior Malaria Inspector by order dated 29-1-1998 issued by the Additional Director, Medical Health Service, but before completing three years of services as a Senior Malaria Inspector as required for promotion. (The requirement of promotion from the post of Senior Malaria Inspector to the post of Assistant Malaria Officer is that a Senior Malaria Inspector has to complete three years service and experience on the said post of Senior Malaria Inspector) and after rendering 1 year 11 months service only and too in derogation to the rules, 1993 many members of the sangh were promoted from the post of Senior Malaria Inspector to the post of Asst. Malaria Officer under the promotional quota by order dated 30 December, 1999 of Additional Director of the Department concerned. 13. According to the petitioners, a tentative seniority list Mal. A/2002/ 3803-34 dated 13-5-2002 of departmentally promoted Assistant Malaria Officers was issued by the Additional Director, and out of these 42, departmentally promoted assistant Malaria Officer being member of respondent Sangh were not even eligible to appear in the Preliminary Examination of the year 1999 by virtue of their not having requisite qualification and being over age i. e. almost all the members were above 35 years and as such were not eligible to appear even for direct recruitment of Assistant Malaria Officer or to any post to be recruited through the State Subordinate Examination, however, these aspects were not even controverter by the sangh. The above stand of petitioners stood fortified when members of sangh did not come forward to say that they were willing to participate for selection for other posts under Combined State Subordinate Services Examination also. Now, they can not be allowed to say that since specifically post of Assistant Malaria Officer was not mentioned in the advertisement and the same was requisitioned and added subsequently before the preliminary examination, therefore, they were debarred to avail the chance to appear in the said examination. According to the petitioners, para-9 of the affidavit filed for and on behalf of State Government through Sri R. V. Singh, Additional Director, Malaria, Communicable Diseases, U. P. , Lucknow in Writ Petition No. 3268 of 2000 reveals that 50% of the vacancies of Assistant Malaria Officer in reference to rules, 1993 could be filled up by direct recruitment and 50% from amongst the Senior Malaria Inspectors, who have completed three years of service on the first day of year of recruitment, and the vacancies of direct recruitment were filled by open Selection through the Commission way back about 10 years back but only after a long gap in the year 1999 the direct recruitment could be conducted, where the Commission has selected the present petitioners. 1 14. Although, a person on selection and on coming to the select list has no vested right to be appointed to the post for which he has been selected, however the appointing authority cannot ignore the select panel on its whims to decide not to make the appointment of the selected persons. When a person has been selected by any commission or committee or board then on existing vacancy the appointment can be offered to him, keeping in view his merit and position, then, ordinarily there is no justification to ignore his legal rights of appointment. There has to be a justifiable reason to decline to appoint a person who is on the select panel, as expressed by the Supreme Court in H. S. Miltal v. Union of India, 1995 Supp (2) SCC 230. 15. I have heard learned Counsels for the parties. There has to be a justifiable reason to decline to appoint a person who is on the select panel, as expressed by the Supreme Court in H. S. Miltal v. Union of India, 1995 Supp (2) SCC 230. 15. I have heard learned Counsels for the parties. The cases referred and relied upon by the members of respondent sangh were in different context where the recruitments were made for single variety of post, whereas, in the present case the recruitment in question was for large number of posts through Combined State Subordinate Examination, therefore, no help could be derived from the referred cases. The open examination by way of direct recruitment was to be made for different variety of posts in different cadres, where normally a requisition is sent for many posts by the State Government. The Combined State/subordinate Services Examinations are conducted not specially for one post but together for large number of posts and the graduate candidates between age of 21 to 35 years of age from open market knowing it fully well participate in the examination according to the eligibility and minimum qualification. Sometimes the post increases or decreases and sometimes the posts of different variety are added before, preliminary examination. Here, the petitioners bon finely appeared in the examination and were selected and they came forward before this Court for getting directions for appointment and in view of the interim order of this Court the appointment letters were also issued to them consequent upon they are working. However, the members of respondent sangh, who are basically malaria Inspectors got provisional promotion from the post of Senior Malaria Inspector to Asst. Malaria Officer on derogation to the required statutory period of three years prescribed under 50% promotional quota of rules, 1993 and also they were given departmental promotion to the post of assistant Malaria Officer within their quota, but for the reasons best known to them they are aggrieved by the direct recruitment of petitioners, who are direct recruits selected within" 50% quota of direct recruitment. At relevant time members of sangh were not eligible as they were not possessing B. Sc. degree with Zoology and no member of sangh was even eligible to participate in the examination by virtue of their being overage for being considered to any post under Combined State Subordinate Services Examination-1999, what to say for the post of assistant Malaria Officer. At relevant time members of sangh were not eligible as they were not possessing B. Sc. degree with Zoology and no member of sangh was even eligible to participate in the examination by virtue of their being overage for being considered to any post under Combined State Subordinate Services Examination-1999, what to say for the post of assistant Malaria Officer. When the members of respondent sangh have not participated in the State Combined Subordinate Services Examination-1999 at all and they were also given promotions as Assistant Malaria Officer under rules, 1993 under 50% promotional quota, therefore, being departmental candidates they are not supposed to challenge and put impediments in the output of fair selection conducted by the commission. The commission even in subsequent years i. e. in 2000, 2001, 2002 and 2003 has also hot indicated or mentioned any individual post in the1 advertisement to be filled up and eligible candidates from the open market have appeared and only after declaration of successful they were given option to opt different posts according to their merits and choices. The petitioners after having been declared selected/ appointed against the requisitioned post of Assistant Malaria Officer are entitled for appointment, therefore this is an appropriate case where mandamus could be issued, however, since the petitioners have already been given appointment, therefore, in terms of the above observations, the writ petition is disposed of. Petition disposed of. .