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Allahabad High Court · body

2005 DIGILAW 370 (ALL)

Raksha Goswami v. State Public Services Tribunal

2005-02-25

N.K.MEHROTRA, PRADEEP KANT

body2005
JUDGMENT : PRADEEP KANT, J. 1. Writ Petition No. 737 (SB) of 2001 has been filed by the Petitioner Dr. Raksha Goswami, challenging the orders passed by the State Public Services Tribunal, by means of which the claim of the Respondent Dr. Rama Shanker Yadav of being senior to the private Respondents, who were five in number, including the present Petitioners of Writ Petition Nos. 16 (SB) of 2005 and 78 (SB) of 2005, namely, Dr. Raksha Goswami and Dr. Ravi Dutt Tripathi has been allowed. An interim order of stay has been passed in this case on 23.5.2001 staying the operation of the judgment and order dated 9.5.2001, passed by the Public Services Tribunal. The said interim order is still continuing. 2. It appears that during pendency of this writ petition, the post of Director, State Ayurvedic and Unani Medical Colleges has fallen vacant, on which post Respondent Dr. Rama Shanker Yadav, who is holding the substantive post of Principal and Superintendent, State Ayurvedic College and Hospital, Lucknow, has been allowed to work on officiating basis in addition to his own post vide order dated 31.12.2004. This order dated 31.12.2004 has been challenged by Dr. Raksha Goswami in Writ Petition No. 16 (SB) of 2005 and the same order has been challenged by Dr. Ravi Dutt Tripathi in Writ Petition No. 78 (SB) of 2005. 3. The challenge to the aforesaid order by the Petitioners, which in turn would mean, Dr. Raksha Goswami and Dr. Ravi Dutt Tripathi in the instant judgment, is mainly based on the ground that they are senior to Dr. Rama Shanker Yadav, Respondent in all three writ petitions and, therefore, in the presence of senior person, the additional charge or officiating charge of the post of Director could not have been handed over to the Respondent. 4. Another argument has been raised that though the Tribunal has given a finding for treating the Respondent senior to the Petitioners, but operation of the order of the Tribunal having been stayed by this Court, it would not be open for the State Government either to allow a junior person including Dr. 4. Another argument has been raised that though the Tribunal has given a finding for treating the Respondent senior to the Petitioners, but operation of the order of the Tribunal having been stayed by this Court, it would not be open for the State Government either to allow a junior person including Dr. Rama Shanker Yadav to take charge of the post of Director or to give effect to the order passed by the Tribunal in the matter of giving officiating charge on the higher post and to treat the Respondent senior for the said purpose in terms of the orders passed by the Tribunal. 5. When these petitions viz. Writ Petition No. 16 (SB) of 2005 and Writ Petition No. 78 (SB) of 2005 were taken up for orders, counsel for Dr. Rama Shanker Yadav, Sri R. C. Saxena prayed that the seniority dispute is already engaging attention of this Court in Writ Petition No. 737 (SB) of 2001 and, therefore, the same be also clubbed with the aforesaid two writ petitions and be decided together. 6. Sri R. C. Saxena, learned Counsel for the Respondent Dr. Rama Shanker Yadav, suggested and Sri S.K. Kalia, senior advocate and Sri Sanjay Kumar, advocate, and the learned Counsel for the State agreed that the writ petition, in which seniority of the parties is under consideration, may be decided along with these two writ petitions. We also feel that the seniority dispute, if is decided first, it would conclude the cases of the other two petitions. We are, therefore, disposing of these writ petitions by a common order. 7. The facts which are not largely in dispute are that the State Government sent requisition to the U.P. Public Service Commission (hereinafter referred to as the Commission) for making selection on the two posts of Principal of State Ayurvedic Colleges, in pursuance of which two posts were advertised by the Commission vide advertisement dated 19.9.1987. In pursuance of the said advertisement, Respondent along with certain other candidates, applied for the said two posts. Call letters to appear before the Selection Board were issued to the persons concerned on 16.9.1989. In the meantime the State Government sent another requisition for one more post of Principal on 23.7.1987, for which an advertisement was issued on 12.8.1989. The advertisement recited that the number of posts can be increased or decreased. Call letters to appear before the Selection Board were issued to the persons concerned on 16.9.1989. In the meantime the State Government sent another requisition for one more post of Principal on 23.7.1987, for which an advertisement was issued on 12.8.1989. The advertisement recited that the number of posts can be increased or decreased. The selection in pursuance of the advertisement dated 19.9.1987 was held on 4.10.1989, and the result was declared on 7.10.1989, in which Respondent also participated. Result of the said selection was declared with respect to two posts advertised, namely, by first advertisement and two persons, namely, Dr. P.S. Chaure and Dr. S.D. Upadhyaya, who were on the select list, were appointed as Principals. Respondent was placed in the waiting list in the said select list. 8. In respect of one post, which was later on advertised by advertisement dated 12.8.1989, no selection was held in pursuance of the said advertisement and subsequently the same was cancelled by the Commission. 9. The Respondent, feeling aggrieved by his non-promotion made various representation to the Commission right from 30.1.1991 saying that the Commission ought to have declared the result of all the three posts and it had committed an illegality in declaring the result of two posts only. When no heed was paid to his representation, he filed writ petition in the High Court bearing Writ Petition No. 2832 (SB) of 1993. During pendency of the said writ petition, Respondent was issued appointment order on 11.2.1994, on the basis of the selection made on 4.10.1989, he being in the waiting list. 10. Prior to the issuance of the aforesaid order of appointment, on 15.5.1992, the Commission advertised six posts of Principal and in pursuance of the said advertisement dated 15.5.1992, Petitioner and several other candidates, including the Respondent, applied for selection. The result of said selection was declared on 28.5.1993, in which name of the Petitioner Dr. Ravi Dutt Tripathi was shown at serial No. 2 and that of Dr. Raksha Goswami was shown at serial No. 5. The Respondent Dr. Rama Shanker Yadav, however, met with failure in selection and could not be selected. The appointment orders were issued to the Petitioners on 28.9.1993. On 11.2.1994, the State Government issued an order of appointment to Respondent Dr. Rama Shanker Yadav saying that on consideration of the representation made by Dr. The Respondent Dr. Rama Shanker Yadav, however, met with failure in selection and could not be selected. The appointment orders were issued to the Petitioners on 28.9.1993. On 11.2.1994, the State Government issued an order of appointment to Respondent Dr. Rama Shanker Yadav saying that on consideration of the representation made by Dr. Rama Shanker Yadav, a candidate who was placed in the waiting list by the Commission in the selection held on 4.10.1989, the Government has been pleased to temporarily appoint and post him as Principal, in Rishikul Rajkiya Ayurvedic College, Haridwar, in anticipation of the approval of the Commission. Thereafter the Commission wrote a letter to the Secretary, State Medical Education Department, on 6.4.1994 that the name of Dr. Rama Shanker Yadav has been recommended for being appointed on the vacancy caused because of the non-joining of one provisionally selected candidate Dr. Mahavir Prasad Shukla, whose name did find place at serial No. 3 but was cancelled being ineligible, but his (Respondent's) name shall be placed after the name of Dr. Raksha Goswami, i.e. below all the selected candidates. 11. A tentative seniority list was prepared by the State Government on 20.1.1995 in which the Respondent was shown at serial No. 4 and the present Petitioners and one Dr. E. H. Qureshi and Dr. Shiv Sagar Shukla and Dr. B. N. Singh were shown below him but on objection being filed by these persons, the final seniority list was published on 22.3.1996, in which the Respondent was shown junior to the aforesaid persons, including the Petitioners. The determination of this seniority vide seniority list dated 22.3.1996 became the subject-matter of consideration before the Tribunal in a claim petition filed by the Respondent Dr. Rama Shanker Yadav, which was allowed and against which judgment and order, Writ Petition No. 737 (SB) of 2001 has been filed. 12. Initially there was a dispute amongst the parties as to whether Dr. Rama Shanker Yadav (Respondent) was given appointment in pursuance of his name being placed in the waiting list of the selection held on 4.10.1989 or that he was a candidate of a subsequent selection in the waiting list, result of which was declared on 28.5.1993. 12. Initially there was a dispute amongst the parties as to whether Dr. Rama Shanker Yadav (Respondent) was given appointment in pursuance of his name being placed in the waiting list of the selection held on 4.10.1989 or that he was a candidate of a subsequent selection in the waiting list, result of which was declared on 28.5.1993. But in view of the specific case of the Respondent as reiterated by Sri R. C. Saxena, learned Counsel, that the Respondent was selected in the selection held on 4.10.1989 and it is that waiting list which has been given effect to while giving him appointment on 11.2.1994, no such dispute remains. The Respondent's counsel also pleaded that the Respondent remained unsuccessful in the subsequent selection in which Petitioners were selected and that he has been given appointment because his name did find mention in the waiting list in the list of selected candidates, with respect to the selection held on 4.10.1989. 13. Annexure-6 filed by Sri Rama Shanker Yadav along with counter-affidavit in the writ petition of Dr. Ravi Dutt Tripathi also clarifies the aforesaid position, which is the letter of appointment issued by the State Government in anticipation of the approval of the Public Service Commission, which says that on representation made by Sri Rama Shanker Yadav, whose name has been recommended in the waiting list in pursuance of the selection held on 4.10.1989 by the Commission, the appointment order is being issued. Thus, there remains no ambiguity that the Respondent has been given appointment because of the fact that he was placed in the waiting list in the earlier selection, which was held in the year 1989 and not in the subsequent selection, in which selection the Petitioners were selected and appointed. 14. It is also clear that the appointment to the Respondent was given because the candidature of one of the provisionally selected candidate Dr. Mahavir Prasad Shukla was cancelled though he also stood selected along with the Petitioners in the subsequent selection. This vacancy in the subsequent selection was used by the State Government for giving appointment to the Respondent though on the basis that his name finds place in the waiting list of the selection held on 4.10.1989. 15. Mahavir Prasad Shukla was cancelled though he also stood selected along with the Petitioners in the subsequent selection. This vacancy in the subsequent selection was used by the State Government for giving appointment to the Respondent though on the basis that his name finds place in the waiting list of the selection held on 4.10.1989. 15. The Tribunal, relying upon the provisions of Rule 5 of U.P. Government Servants Seniority Rules, 1991 (hereinafter referred to as Seniority Rules, 1991) declared that the Respondent is senior to the Respondents in the claim petition (Petitioners in the present petitions) including the Petitioners and his placement be accordingly corrected in the seniority list within a given time. Operation and implementation of this order was, stayed by the High Court and thus, the seniority list dated 22.3.1996, which was sought to be corrected by the aforesaid judgment of the Tribunal still remains intact and the order of the Tribunal cannot be said to be operative or effective in the teeth of the stay orders granted by this Court. 16. Rule 5 of the said Seniority Rules, 1991, reads as under: Seniority where appointments by direct recruitment only.-Where according to the service rules appointments are to be made only by the direct recruitment the seniority inter se of the persons appointed on the result of any one selection, shall be the same as it is shown in the merit list prepared by the Commission or the Committee, as the case may be ; Provided that a candidate recruited directly may lose his seniority, if he fails to join without valid reasons when vacancy is offered to him, the decision of the appointing authority as to the validity of reasons, shall be final ; Provided further that the persons appointed on the result of a subsequent selection shall be junior to the persons appointed on the result of a previous selection. Explanation.-Where in the same year separate selection for regular and emergency recruitment, are made, the selection for regular recruitment shall be deemed to be the previous selection. 17. The Tribunal found fault in the action of the State Government in not giving appointment to the Respondent, despite his repeated representations and also held that delay in giving such appointment cannot be a bar for giving him seniority. 18. 17. The Tribunal found fault in the action of the State Government in not giving appointment to the Respondent, despite his repeated representations and also held that delay in giving such appointment cannot be a bar for giving him seniority. 18. The Tribunal further held that before the interview was held on 4.10.1989, in pursuance of the advertisement issued on 19.9.1987, the requisition had already been sent for the additional post, namely, third post and thus, before the date of interview, i.e. on 4.10.1989, requisition for the post of Principal was already available with the Commission and, therefore, the Commission ought to have sent its recommendations of the selected candidates in respect of all the three vacancies. In the select list Dr. Prabhakar Sidhnath Chaure and Dr. S. D. Upadhyaya were shown at serial Nos. 1 and 2, whereas Respondent was shown in the waiting list. The Tribunal has given one more reason that because the Respondent had not submitted his experience certificate of five years, therefore, his recommendation was provisional, which was made available by the Respondent on 9.1.1989. On considering the recommendations made by the Commission and the appointment order issued on 11.2.1994, the Tribunal recorded a finding that the Respondent was appointed having been selected in the selection of the year 1989, he being placed in the waiting list of that selection and since he was an appointee of the earlier selection, i.e. the selection in which Petitioners were appointed, being of a later point of time, therefore, he would be senior to the Petitioners. This finding was recorded on the interpretation of Rule 5 of Seniority Rules, 1991, and in particular of Second Proviso to the Rule. 19. There cannot be any dispute that a candidate appointed in pursuance of the earlier or prior selection or in respect to a prior vacancy would be senior to a person who is appointed in subsequent selection or against the subsequent vacancy. 20. Rule 5 Second Proviso, of the Seniority Rules, 1991 also says that a person appointed in the earlier selection, would be senior to the person appointed in the subsequent selection. 21. 20. Rule 5 Second Proviso, of the Seniority Rules, 1991 also says that a person appointed in the earlier selection, would be senior to the person appointed in the subsequent selection. 21. Learned Counsel for the Petitioners have urged that as a matter of fact the appointment of the Respondent itself is bad in law as the waiting list of the selection of the year 1989 stood exhausted and came to an end when the two posts, which were advertised, for which selection was held, were occupied by the two selected candidates. Their submission is that the waiting list cannot be treated to remain alive or intact after the vacancies advertised have been filled in by the candidates of the main select list and, therefore, in view of the admitted case of the Respondents that the Respondent Dr. Rama Shanker Yadav was appointed, he being in the waiting list of the selection of the year 1989, against the vacancy which has occurred because of non-joining of another provisionally selected candidate, Dr. Mahavir Prasad Shukla in the subsequent selection held in the year 1993, the very appointment of the Respondent is void, non est and illegal, he having been unsuccessful in the selection against the vacancies, which were subsequently advertised and the waiting list of the previous selection not being available for being acted upon for filling up the unfilled vacancy of the subsequent selection. 22. It has further been urged that when the advertisement dated 12.8.1989 issued with respect to the third additional vacancy of the post of Principal, was cancelled and no selection was held against that vacancy, the said vacancy cannot be treated to be in existence in the year 1989, when the Respondent was placed in the waiting list and that the said vacancy having been included in the subsequent selection, was even otherwise not available for giving appointment to the Respondent in the year 1994, merely because his name figured in the waiting list of earlier selection. 23. Challenging the very basic appointment of the Respondent, it is also being urged that the Respondent was wholly ineligible for being considered even against the two vacancies advertised on 19.9.1987, as he was not possessed of the requisite experience nor the Post Graduate Degree in Ayurvedic but was a simple Ayurvedic graduate. 23. Challenging the very basic appointment of the Respondent, it is also being urged that the Respondent was wholly ineligible for being considered even against the two vacancies advertised on 19.9.1987, as he was not possessed of the requisite experience nor the Post Graduate Degree in Ayurvedic but was a simple Ayurvedic graduate. The qualifications prescribed in the advertisement were to be fulfilled by the incumbent prior to the last date of submission of forms and, therefore, submission of experience certificate on 9.1.1989, i.e. much after the last date as given in the advertisement, was of no consequence. 24. In response learned Counsel for the Respondent Dr. Rama Shanker Yadav, Sri R. C. Saxena strenuously urged that the Respondent, being a selectee of previous selection held in the year 1989, though was given appointment on 11.2.1994 but he being selectee of the previous selection held five years before, would be senior by all means to the appointees of the subsequent selection, namely, Petitioners. His further submission is that even if the third vacancy has been included in the subsequent selection, the Respondent being a selectee in waiting list of the year 1989, was to be provided with the appointment and his selection could not have been wiped of simply because of the illegal action on the part of the Commission or the State Government in not recommending his name for the third vacancy in the year 1989, itself. 25. It would be appropriate to clarify that though in the writ petition quashing of the very appointment of Respondent No. 3 has also been prayed for but it would not be appropriate to consider this relief after the Respondent has been allowed to work for the last more than one decade but the validity of his appointment, the circumstances, under which his appointment has been made, the vacancy against which the appointment has been made, the selection in pursuance of which the appointment has been given and all such issues would be considered only with a view to determine the inter se seniority of the affected parties. 26. The determination of seniority of the Respondent and the Petitioners inter se will depend on the question raised by the parties' counsel, which have been broadly stated in the earlier part of the judgment. 27. 26. The determination of seniority of the Respondent and the Petitioners inter se will depend on the question raised by the parties' counsel, which have been broadly stated in the earlier part of the judgment. 27. Having regard to the admitted facts regarding the appointment of the Petitioners in the year 1993, in pursuance of the subsequent selection held in the year 1993, in pursuance of the advertisement dated 15.5.1992 and the appointment of Dr. Rama Shanker Yadav on 11.2.1994 against the vacancy which remained unfilled though advertised in the subsequent selection, i.e. in pursuance of the selection of the year 1993, because of non-joining of the provisionally selected candidate Dr. Mahavir Prasad Shukla, Respondent Dr. Rama Shanker Yadav being a candidate in the waiting list of the selection of the year 1989, it is to be seen as to whether Respondent Rama Shanker Yadav would be placed in seniority below the Petitioners or all other appointees of the selection of the year 1993 or that he be treated as an appointee against the vacancy of the year 1989 and as a selected candidate of a prior selection would be placed in the seniority list over and above such candidates of subsequent selection. 28. It is not in dispute that the two vacancies of the post of Principal were advertised on 19.9.1987 and it is against only those two vacancies that the recommendations were sent by the Commission, in pursuance of the selection held on 4.10.1989. The third vacancy which was advertised on 12.8.1989, though its requisition was available with the Commission before the interview took place on 4.10.1989, in pursuance of the earlier advertisement but the said vacancy was not the subject-matter of the said selection nor any selection was made against the said vacancy. As a matter of fact, the subsequent advertisement dated 12.8.1989 in which third additional vacancy was advertised, was cancelled and that vacancy was included in the subsequent selection. That being so, it cannot be said that the third vacancy, regarding which requisition was sent in July, 1987, for which advertisement was issued on 12.8.1989, still subsisted, when the subsequent selection in the year 1993 was made for the purpose of giving appointment to the Respondent against that very vacancy, treating it to be that of the year 1989. 29. 29. Accepting that the name of the Respondent figured in the waiting list in the selection of the year 1989, the question would again arise as to what is the life of the waiting list of the year 1989. 30. The waiting list is prepared for avoiding cumbersome process of selection, for those vacancies which have already been advertised and for which selection has already been held but for any unforeseen contingency or for any reason whatsoever, if any such vacancy or vacancies remain unfilled or could not be filled, out of the selected candidates, may be because of their non-joining or any other such reason and in such contingency the waiting list is pushed forward in order of merit and vacancies, which remained unused or unfilled by the selected candidates, are allowed to be offered to the candidates who figure in the waiting list in order of their merit. The purpose of making waiting list is to have a little more number of selected candidates, who could be given appointment in case the selected candidates on the main list are not available for either of the vacancies, so advertised and for which the selection has been held. 31. In the case of R.S. Mittal v. Union of India, 1995 SCC 787, which has been relied upon by Sri R. C. Saxena, the Supreme Court observed as under: It is no doubt correct that a person on the select panel has no vested right to be appointed to the post for which he has been selected. He has a right to be considered for appointment. But at the same time, the appointing authority cannot ignore the select panel or decline to make the appointment on its whims. When a person has been selected by the Selection Board and there is a vacancy which can be offered to him, keeping in view his merit position, then, ordinarily, there is no justification to ignore him for appointment. There has to be a justifiable reason to decline to appoint a person who is on the select panel. In the present case, there has been a mere inaction on the part of the Government. No reason whatsoever, not to talk of a justifiable reason, was given as to why the appointments were not offered to the candidates expeditiously and in accordance with law. The appointment should have been offered to Mr. In the present case, there has been a mere inaction on the part of the Government. No reason whatsoever, not to talk of a justifiable reason, was given as to why the appointments were not offered to the candidates expeditiously and in accordance with law. The appointment should have been offered to Mr. Murgad within a reasonable time of availability of the vacancy and thereafter to next candidate. The Central Government's approach in this case is wholly unjustified. 32. Reliance has also been placed upon the case of Shankarsan Dash v. Union of India, 1991 SCC 800, which says that: 'It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post unless the relevant recruitment rules so indicate. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted'. 33. A Division Bench judgment of Allahabad High Court passed in Special Appeal No. 313 of 1998, State of U.P. and others Vs. Ravindra Nath Rai and others, (1999) 2 AWC 1230 , has been sought to be relied upon in support of his submission that the appointing authority cannot ignore the select panel or decline to make appointments on its whims. 34. In this case, the State of U.P. on the one hand for filling up advertised new posts picked up 86 candidates from the comparative merit list of all the candidates found eligible and qualified for appointment prepared during the selection process initiated for filling the 630 advertised posts and on the other hand for filling 136 advertised posts they denied even the consideration of the candidature of those candidates who figured in the comparative merit list immediately next to those who were appointed against 494 advertised posts. The State did not disclose any justifiable reason for adopting such discriminatory and wholly arbitrary course resulting in gross violation of the inalienable guarantee enshrined in Articles 14 and 16 of the Constitution of India. The Division Bench observed that: 'It cannot be countenanced. The candidates whose name figure in the comparative merit list prepared for a particular selection held for the advertised posts do not have any right of consideration for future vacancies. But; certainly they have a right to be considered for appointment against the advertised vacant posts, and such right is a legally cognizable and judicially enforceable Constitutional right'. 35. Learned Counsel for the Respondent Sri R. C. Saxena, relying upon the aforesaid case, submitted that the Respondent had a right to be appointed against the vacancy, which was requisitioned in the year 1989 and that he being a selected candidate, could not have been discriminated in the matter of giving appointment. 36. Sri Saxena reinforced his arguments regarding seniority being given to Dr. Rama Shanker Yadav, Respondent, since the year 1989, i.e. the date of his selection, also by asserting that though his appointment order has been issued much after the date of selection and after the appointment orders in favour of the Petitioners were issued, even then he would be senior to the Petitioners as the Respondent cannot be allowed to suffer for no fault of his, if the appointment order was not issued immediately after the selection and in any case before the issuance of the appointment orders of the present Petitioners. For this purpose, he relies upon the case of A.R. Sircar (Dr) v. State of U.P., 1993 Supp.(2) SCC 734 . 37. In the said case, direct recruitment for the vacancy for the year 1982-83 was made but this fact was omitted to be mentioned in the appointment order. The appointment was made on 31.10.1989 but related to the vacancy of the year 1982-83. The appointee, namely, Dr. A. R. Sircar, was not given benefit of the seniority over the Respondents, who were regularised by virtue of U.P. Regularisation of Ad Hoc Promotions (on the Posts within the Purview of the P.S.C.) Rules, 1988 though at a later date than the date of selection of Dr. A. R. Sircar, but before the appointment order was issued to him. A. R. Sircar, was not given benefit of the seniority over the Respondents, who were regularised by virtue of U.P. Regularisation of Ad Hoc Promotions (on the Posts within the Purview of the P.S.C.) Rules, 1988 though at a later date than the date of selection of Dr. A. R. Sircar, but before the appointment order was issued to him. Under these circumstances, the plea of the Appellant claiming seniority over the Respondent was rejected by the High Court but the Apex Court while allowing the appeal, accepted the plea of the Appellant and issued a direction to the University to determine the seniority as per the observations made in the order. 38. In this case, it was also not disputed that the selection was made in pursuance of the advertisement for the vacancy of the year 1982-83 but because of intervening interim order, the appointment could not be made and in the meantime, regularisation orders of the Respondent were passed and, therefore, it was observed that the case of seniority of the Appellant be considered by finding out as to when his appointment could have been materialised, had there been no prohibition against the implementation of the select list. 39. Support is also being taken from the case of Surendra Narain Singh and Others Vs. State of Bihar and Others, AIR 1998 SC 1841 . In this case recruitment on the post of Munsif by two modes proceeded side by side and candidates, who were recruited against earlier vacancies were, on the facts of the case, were directed to be ranked senior to those recruited against later vacancies. One set of Munsifs was recruited on the basis of the examination held by the Public Service Commission under the Bihar Judicial Service (Recruitment) Rules, 1955 and another set of Munsifs was appointed under the Bihar Civil Service (Judicial Branch) Ad Hoc Recruitment Rules, 1974. The Supreme Court made it clear that if the appointments are delayed, the seniority will stand protected and on the facts of that case, ordered that the candidates should not be allowed to suffer for no fault of theirs. 40. The case of Reevan Singh Vs. State of U.P. and Another, (2003) 1 AWC 12 , has been cited for interpreting Rule 5 of the Seniority Rules, 1999, where recruitment under the U.P. Subordinate Service Seniority Rules, 1991 and in particular Rule 5, was under consideration. 40. The case of Reevan Singh Vs. State of U.P. and Another, (2003) 1 AWC 12 , has been cited for interpreting Rule 5 of the Seniority Rules, 1999, where recruitment under the U.P. Subordinate Service Seniority Rules, 1991 and in particular Rule 5, was under consideration. The Supreme Court held that the persons selected in the selection which began in the year 1987 should be treated as senior to those candidates who were selected in the selection process which commenced in the year 1990. 41. Reliance is also being placed on the case of Satish Chandra Srivastava and Others Vs. State of U.P. and Others, (2003) 5 AWC 3697, wherein a Division Bench of this Court held that Rule 5 of the U.P. Government Servant Seniority Rules, 1991 provide that inter se seniority of persons appointed on result of one selection to be the same as it is shown in the merit list prepared by the Commission and, therefore, the date of appointment is not relevant but the date of selection is relevant for the purpose of determination of seniority. 42. The Respondent's appointment in pursuance of being on the select list as a wait listed candidate in the selection of the year 1989, would depend on the existence of any of the vacancies, which were advertised in the advertisement dated 19.9.1987, namely, two in number, but he could not claim his appointment on the basis of his position in the waiting list in the said selection against any subsequent vacancy, or against the vacancy, which was not the subject-matter in that selection and for which no selection was held. The Respondent, therefore, cannot be treated to be a selected candidate against third vacancy on which he claims his right of appointment and also asserts that he has been appointed on that very vacancy. Once the appointment against the two vacancies advertised, had been made and both the selected candidates had joined, the entire select list including the waiting list stood exhausted which cannot be taken to be in force for the purpose of appointment and the same could not have been used for giving appointment against a subsequent vacancy arising out of a selection of subsequent year. Once the life of the waiting list had come to an end, it lost all its enforceability. 43. Once the life of the waiting list had come to an end, it lost all its enforceability. 43. The Apex Court had an occasion to consider the import, meaning, scope and life of the waiting list, prepared during competitive examination in the case of Gujarat State Dy. Executive Engineers' Association Vs. State of Gujarat and Others, (1994) 2 SCC 591 Supp, and held as under: A waiting list prepared in an examination conducted by the Commission does not furnish a source of recruitment. It is operative only for the contingency that if any of the selected candidates does not join then the person from the waiting list may be pushed up and be appointed in the vacancy so caused or if there is some extreme exigency the Government as a matter of policy decision pick up persons in order of merit from the waiting list. But the view taken by the High Court that since the vacancies have not been worked out properly, therefore, the candidates from the waiting list were liable to be appointed does not appear to be sound. This practice, may result in depriving those candidates who become eligible for competing for the vacancies available in future. If the waiting list in one examination was to operate as an infinite stock for the appointments, there is a danger that the State Government may resort to the device of not holding an examination for years together and pick up candidates from the waiting list as and when required. The constitutional discipline requires that this Court should not permit such improper exercise of power which may result in creating a vested interest and perpetrate waiting list for the candidates of one examination at the cost of entire set of fresh candidates either from the open or even from service. 44. The proposition of law as propounded by the Supreme Court and the interpretation of the relevant rules of seniority, namely, Rule 5, do not call for any ambiguity in holding that if the selection of an incumbent has been made against an earlier vacancy then irrespective of the date of actual issuance of appointment order, such person would be senior to the persons, who are selected against the vacancies occurring thereafter, i.e. selected against the subsequent vacancies. It also cannot be challenged that a person selected in the prior selection would also rank senior to the persons who have been selected in a subsequent selection. This is what Rule 5 also means. 45. The benefit of the aforesaid principles would also be available to the Respondent, Dr. Rama Shanker Yadav, only in case he succeeds in establishing that he is an appointee of the earlier selection in respect of a vacancy, for which a selection was made in that selection. Merely because he has been given appointment by treating him to be a candidate on the waiting list of the year 1989 selection, but without there being any vacancy of that selection being available, would not entitle him to gain seniority over the Petitioners, though they have been selected in a subsequent selection. 46. It also need be established by Dr. Rama Shanker Yadav that the waiting list of the year 1989 would be deemed to be surviving on the date when his appointment was made in the year 1994. If these conditions are not satisfied, appointment of Dr. Rama Shanker Yadav could not have been made in the year 1994 and he must feel satisfied in getting his appointment protected, which otherwise could not have been made along with the Petitioners against the vacancy, which was the subject-matter of a subsequent advertisement, for which the selection was held in the year 1993, in which Dr. Rama Shanker Yadav, though participated but remained unsuccessful. He cannot be allowed to surpass the appointees of the subsequent selection nor the incumbent (Dr. Rama Shanker Yadav), who could not have been appointed at all by virtue of his name being placed in the waiting list in an earlier selection, would be allowed to steal march over the regularly appointed incumbents, namely, the Petitioners, in regard to their seniority, more so when the Respondent could not compete with them in the subsequent selection and stood rejected. 47. Sri Kalia has relied upon the case of State of Bihar and another Vs. 47. Sri Kalia has relied upon the case of State of Bihar and another Vs. Madan Mohan Singh and others, AIR 1994 SC 765 , wherein the Apex Court, while considering the question as to whether the advertisement and initial decision of the High Court was meant to fill up only 32 vacancies and whether accordingly the High Court called for only 129 candidates from the list who appeared for the written test in the ratio of 1: 4 and whether consequently the whole selection process was confined to fill up only those 32 vacancies, held that 'It is therefore crystal clear that the advertisement and the whole selection process that ensued were meant only to fill up 32 vacancies'. The Apex Court further held that '...the temporary vacancies arose subsequently but even otherwise in the view we are taking namely that the particular advertisement and the consequent selection process were meant only to fill up 32 vacancies and not to fill up the other vacancies, the merit list prepared on the basis of the written test as well as the viva voce will hold good only for the purpose of filling up those 32 vacancies and no further because the said process of selection for those 32 vacancies got exhausted and came to an end. If the same list has to be kept subsisting for the purpose of filling up other vacancies also that would naturally amount to deprivation of rights of other candidates who would have become eligible subsequent to the said advertisement and selection process'. 48. The Supreme Court in the case of Madan Lal and Others Vs. State of Jammu and Kashmir and Others, AIR 1995 SC 1088 , observed that "...even if requisition is made by the Government for 11 posts the Public Service Commission may send merit list of suitable candidates which may exceed 11. That by itself may not be bad but at the time of giving actual appointments the merit list has to be so operated that only 11 vacancies are filled up, because the requisition being for 11 vacancies, the consequent advertisement and recruitment could also be for 11 vacancies and no more. 49. That by itself may not be bad but at the time of giving actual appointments the merit list has to be so operated that only 11 vacancies are filled up, because the requisition being for 11 vacancies, the consequent advertisement and recruitment could also be for 11 vacancies and no more. 49. In respect of the life of the waiting list, the Supreme Court, considering Rules in that case, held as under: "A mere look at the rule shows that pursuant to the requisition to be forwarded by the Government to the Commission for initiating the recruitment process, if the Commission has prepared the merit list and the waiting list of selected candidates such list will have a life of one year from the date of publication in Government Gazette or till it is exhausted by the appointment of candidates, whichever is earlier. This means that if requisition is for filling up of 11 vacancies and it does not include any anticipated vacancies, the recruitment to be initiated by the Commission could be for selecting 11 suitable candidates. The Commission may by abundant caution prepare a merit list of 20 or even 30 candidates as per their inter se ranking on merit. But such a merit list will have a maximum life of one year from the date of publication or till all the required appointments are made whichever event happened earlier. It means that if requisition for recruitment is for 11 vacancies and the merit list prepared is for 20 candidates, the moment 11 vacancies are filled in from the merit list the list gets exhausted, or if during the span of one year from the date of publication of such list all the 11 vacancies are not filled in, the moment the year is over the list gets exhausted. 50. In the case of Asha Kaul (Mrs.) and Anr. v. State of Jammu and Kashmir and Ors. 1993 SCC 637, the Apex Court observed that '...mere inclusion in the select list does not confer upon the candidates included therein an indefeasible right to appointment but that is only one aspect of the matter. The other aspect is the obligation of the Government to act fairly. The whole exercise cannot be reduced to a farce. 1993 SCC 637, the Apex Court observed that '...mere inclusion in the select list does not confer upon the candidates included therein an indefeasible right to appointment but that is only one aspect of the matter. The other aspect is the obligation of the Government to act fairly. The whole exercise cannot be reduced to a farce. Having sent a requisition/request to the Commission to select a particular number of candidates for a particular category,-in pursuance of which the Commission issues a notification, holds a written test, conducts interviews, prepares a select list and then communicates to the Government-the Government cannot quietly and without good and valid reasons nullify the whole exercise and tell the candidates when they complain that they have no legal right to appointment. We do not think that any Government can adopt such a stand with any justification today'. The Court further observed that '...the Government's action in not approving the rest of the seven names in the select list is unsustainable and that 'as provided under Rule 41, the list remains valid for one year from the date of its approval and publication. If within such one year, any of the candidates therein is not appointed, the list lapses and fresh list has to be prepared'. 51. The approach of the Tribunal that since Dr. If within such one year, any of the candidates therein is not appointed, the list lapses and fresh list has to be prepared'. 51. The approach of the Tribunal that since Dr. Rama Shanker Yadav was a selected candidate of an earlier selection of the year 1989, being on the waiting list, he would be senior to the Petitioners and other incumbents, who are appointed by virtue of the subsequent selection of the year 1993, is based on a misconstruction of facts and also by incorrect application of Second Proviso to Rule 5, simply because the Respondent in his own wisdom thought that the Commission ought to have filled in all the three vacancies (including the third vacancy, for which requisition was sent subsequently as against the requisition of two earlier vacancies and was separately advertised subsequently on 12.8.1989) and having not done so, he would become entitled for claiming appointment against the said third vacancy and his placement in the waiting list should be treated to be a selection against that vacancy also, for which relief he did not hesitate in making representation after representations, would not change the factual or the legal position, namely, that no selection for the third vacancy was held; the Respondent was also not considered for the third vacancy and that later on the advertisement was cancelled. Thus, in fact, there was no third vacancy of the selection of the year 1989 existing at the time when the subsequent selection was made. This is also evident by the fact that he was offered appointment only when Dr. Mahavir Prasad Shukla of the subsequent selection did not join having found ineligible, therefore, the said vacancy became available, which otherwise could have been allowed to be filled in only by a candidate from the waiting list, if at all prepared in the subsequent selection and not by any candidate, who was not a selected candidate in the said selection and was also not on the panel of the said waiting list but initially happened to be on the waiting list of an earlier selection. But it appears that the Respondent was accommodated against the said vacancy which in reality did not exist and it is only because of that fact that the Public Service Commission, while forwarding its acceptance or recommendations in view of the appointment orders issued by the State Government on 11.2.1994 by its letter dated 6.4.1994, made it clear that the name of Dr. Rama Shanker Yadav shall be placed below the incumbent at serial No. 5, namely, Dr. Raksha Goswami, i.e. below all the selected candidates of the selection of 1993. 52. He was thus not given any benefit of seniority, by the Commission, being a wait listed candidate of the earlier selection. The inter se seniority determined by the Commission was even otherwise final. 53. Dr. Rama Shanker Yadav, being placed below all the candidates, who were selected by the Commission in the selection of the year 1993, was assigned seniority by the Commission itself after Dr. Raksha Goswami and, therefore, the Petitioners and other candidates, who were shown over and above Dr. Rama Shanker Yadav in order of merit by the Commission would be senior to Dr. Rama Shanker Yadav. The Tribunal thus, committed manifest error in relating the appointment of Dr. Rama Shanker Yadav to the earlier selection for the purposes of determining his seniority, wherein, in fact, no selection at all was held with respect to the third vacancy in that earlier selection, against which he claims to have been given appointment. Dr. Rama Shanker Yadav was simply accommodated by giving appointment on 11.2.1994, i.e. after the appointment of the Petitioners and though it may not be appropriate at this stage to advert to the manner, circumstances and the validity of his appointment for any other purpose but the validity of his appointment, in the circumstances in which he was given the appointment have necessarily to be seen for the purpose of determination of seniority, though his appointment may remain protected. 54. It can certainly be looked into that whether Dr. Rama Shanker Yadav was given appointment in pursuance of an earlier selection in respect of a vacancy which was of a previous date than the vacancies, which were the subject-matter of subsequent selection and that he was selected against such a vacancy in the earlier selection. The scrutiny done above clearly reveals that Dr. Rama Shanker Yadav was given appointment in pursuance of an earlier selection in respect of a vacancy which was of a previous date than the vacancies, which were the subject-matter of subsequent selection and that he was selected against such a vacancy in the earlier selection. The scrutiny done above clearly reveals that Dr. Rama Shanker Yadav was not a candidate, who was ever selected in the earlier selection against the third vacancy for which, in fact, no selection was held in that selection and which vacancy became the subject-matter of selection in the subsequent selection, in which Dr. Rama Shanker Yadav was not selected. Dr. Rama Shanker Yadav was rightly placed by the Commission below all the selected candidates in the list of the selected candidates and his placement in the said select list would determine seniority against the selected incumbents including the Petitioners. 55. It can thus, safely be concluded that Dr. Rama Shanker Yadav cannot be treated as senior to the Petitioners and to those incumbents who were selected in this very selection of the year 1993 and that he would be entitled for seniority below those persons, i.e. below Dr. Raksha Goswami. 56. Dr. Rama Shanker Yadav was thus neither a selected candidate of the earlier selection in respect of the additional (third) vacancy, which is the basis of his claim, nor was he any more a selected candidate against the two vacancies advertised, for which the selection was held in the year 1989 and which two posts were occupied by the two selected incumbents and nor was he selected in the subsequent selection but even then he was given appointment though after the appointment was given to the Petitioners. 57. The Respondent though was not a selected candidate of either of the selections, i.e. of the year 1989 or that of the year 1993 and, therefore, even if it is ignored that he was not having the essential qualifications for being considered against the vacancies advertised on 19.9.1987, till the last date of submission of application, he also miserably failed to indicate the authority under which appointment of a non-selected candidate could have been made by the State Government. 58. 58. It also has not been explained that under what circumstances and under which authority the State Government could have issued the appointment order of the Respondent, without any recommendation being made by the U.P. Public Service Commission, the post being within its purview, in anticipation of approval being granted to the appointment so made by the Commission. 59. If the seniority is given to the Respondent over and above the Petitioners, it would be doing injustice to them inasmuch as that they cannot be allowed to be junior to the incumbent who has been given appointment without any selection and who could not compete with them in the selection in which they were selected and was rejected. As a matter of fact, this is a concession shown to Dr. Rama Shanker Yadav and a concessional appointee cannot be allowed to steal march over those who were regularly selected and who were issued appointment orders prior to the issuance of the appointment orders of Dr. Rama Shanker Yadav and, for which reason, his placement by the Commission was made below all the selected candidates. Seniority has to be reckoned from the date when a person becomes a member of the service and as per the Rules applicable. The Respondent cannot be treated to have become member of the service in the year 1989 or an appointee in the service in pursuance of the selection of the year 1989. 60. From the present facts on record, it is crystal clear that the Petitioners are duly selected candidates of the selection of the year 1993, whereas Respondent was placed in the waiting list in the selection of the year 1989, in respect of only two vacancies advertised, and on joining of the two selected candidates against the two advertised vacancies, the waiting list stood exhausted and its life came to an end but he was given appointment straightaway by the State Government in anticipation of the approval/sanction being granted by the Public Service Commission, at a later point of time, i.e. even without there being any recommendation of the Commission on the date of issuance of the appointment order by the State Government on 11.2.1994, whereas the Commission gave its approval on 6.4.1994. The State Government as well as the Commission was fully conscious that the Respondent was not selected in the subsequent selection of the year 1993, wherein he did appear but was rejected and, therefore, the Commission, while according approval to the appointment, fixed the seniority of the Respondent below all the selected candidates of 1993 selection, in which Dr. Raksha Goswami was placed by the Commission at the bottom and, therefore, the Respondent was placed even below Dr. Raksha Goswami. 61. The appointment so given to the Respondent would not entitle him to any seniority over and above the selected candidates and the seniority assigned by the Commission would be final. He cannot be treated to be a selectee of the earlier selection within the meaning of second proviso to Rule 5, for the simple reason that he was not selected against the third vacancy, for which no selection was made and that when the said vacancy was included in the selection of the year 1993, he stood rejected in the said selection. 62. Under the circumstances, the Respondent can at best be treated as an appointee of a later date than that of the Petitioners and while protecting his appointment, he has to be given seniority as indicated by the Commission, below Dr. Raksha Goswami. 63. In view of the aforesaid discussions, the order dated 9.5.2001 passed by the Tribunal, which is the subject-matter of challenge in Writ Petition No. 737 (SB) of 2001 cannot be sustained and is liable to be quashed, which is hereby quashed. The final seniority list dated 22.3.1996 is thus upheld. 64. Writ Petition Nos. 16 (SB) of 2005 and 78 (SB) of 2005, have been filed by Dr. Raksha Goswami and Dr. Ravi Dutt Tripathi, challenging the order dated 31.12.2004, by means of which Dr. Rama Shanker Yadav has been given officiating charge of the post of Director on the ground that in the presence of the senior persons, charge of the higher post could not have been given to a junior person and the Director being the overall controlling authority, is to be the senior most person as senior person cannot be allowed to work under a junior person, may be its a regular appointment or ad hoc or officiating arrangement. There is no quarrel between the two Petitioners that Dr. Ravi Dutt Tripathi is senior to Dr. There is no quarrel between the two Petitioners that Dr. Ravi Dutt Tripathi is senior to Dr. Raksha Goswami and, therefore, officiating charge, till the regular incumbent is appointed, should be given to the senior most person. 65. In view of the findings recorded above and in view of the fact that the order passed by the Tribunal has been quashed, the seniority list dated 22.3.1996 has revived and has come into force, the officiating charge on the post of Director, thus, has to be given to the senior most person, as per the seniority list dated 22.3.1996, unless a regularly selected candidate as per the Rules is available. 66. It is, therefore, directed that Dr. Rama Shanker Yadav is henceforth restrained from functioning and discharging the officiating duties of the post of Director and the said charge shall be entrusted upon the senior most person from the aforesaid seniority list forthwith. 67. The action of the State Government in giving the officiating charge to Dr. Rama Shanker Yadav on the post of Director in the presence of the Petitioners can also not be appreciated in view of the stay order passed by the High Court against the order passed by the Tribunal, which had declared the Respondent senior to the Petitioners, therefore, in the presence of the stay order the State could not have presumed the Respondent senior nor could have acted on the basis of the decision rendered by the Tribunal. 68. Before concluding it would be apt to take notice of the fact that regular selection on the post of Director has not been made for the last several years as a result of which, arrangement is to be made by giving officiating charge to one or the other person. For efficient and proper administration in the department and to avoid dispute like the present one, it is necessary that the post of Director should not be allowed to remain unfilled for such long years. A further direction, therefore, is issued that the State shall make regular appointment on the post of Director within a maximum period of four months from the date of receipt of a certified copy of this order, in accordance with Rules. 69. For the reasons stated above Writ Petition No. 737 (SB) of 2001 is allowed. The order passed by the Tribunal dated 9.5.2001 is quashed. 69. For the reasons stated above Writ Petition No. 737 (SB) of 2001 is allowed. The order passed by the Tribunal dated 9.5.2001 is quashed. Consequent to the orders passed in Writ Petition No. 737 (SB) of 2001, Writ Petition Nos. 16 (SB) of 2005 and 78 (SB) of 2005 are also allowed. Order dated 31.12.2004 impugned in the said writ petitions is also quashed. 70. No orders as to costs.