JUDGMENT Hon’ble Amitava Lala, J.—Petitioner had appeared in the interview for the post of Lady Medical Officer conducted by Uttar Pradesh Public Service Commission, Allahabad, respondent No.3 in the year 1993 in pursuance of advertisement No. 4/91-92 dated 20th December, 1991 for the notified vacancy of 242 Medical Officers (Female) in the P.M.S. General Grade. The petitioner did not find place in the main list of selection and was placed at SI. No. 51 in the waiting list prepared by the Uttar Pradesh Public Service Commission, Allahabad. After waiting for some time the petitioner made several representations. But when the petitioner was not appointed she filed Civil Misc. Writ Petition No. 41200 of 1994 before this High Court to get appropriate order for selection in the available vacant post. There the State Government has filed affidavit stating as follows : “The State Government filed its counter affidavit wherein it was disclosed that the State Government never received any waiting list. It was also stated that there were 242 vacancy of Female Medical Officers which was advertised and the Public Service Commission recommended only 232 names and in pursuance of such recommendation appointment letters had been issued to 232 candidates by the Government Order dated 30.9.1993. Out of 232 candidates 97 candidates did not join, the State Government called for the waiting list from the U.P. Public Service Commission. The State Government was informed by the Commission that if the candidates did not join even after receiving the appointment letters such appointments are to be cancelled and thereafter names of the candidates in the waiting list are to be called. After receipt of such advice from the Commission the opinion of the personnel department had been sought by the Administrative Department of the State Government and the personnel department advertised that the waiting list lapsed after one year and the names of the candidates in the waiting list can not be considered for appointment thereafter.” 2. Such portion is quoted in the judgment of a Division Bench which passed an order on 29th May, 1997. The order of such Division Bench upon considering the pros and cons of the matter is as follows : “In the facts of the case, we direct the respondent State Government to consider the case of the petitioner for appointment provided there are still vacancy in any of the said 242 posts which were originally advertised. The order of such Division Bench upon considering the pros and cons of the matter is as follows : “In the facts of the case, we direct the respondent State Government to consider the case of the petitioner for appointment provided there are still vacancy in any of the said 242 posts which were originally advertised. Such decision is to be taken by the State Government within one month from the date of production of a certified copy of this order. The decision will be communicated to the petitioner within two weeks thereafter. The writ petition is thus disposed of finally. There will be no order as to costs.” 3. In view of that the State Government has considered the cause and ultimately found that there is no vacancy and his service has not been given. The petitioner firstly, fought the case by way of contempt being Contempt Petition No. 1452 of 1998 and ultimately filed the present writ petition on 10th November, 1998. Parties have exchanged their affidavits. Even from the counter affidavit, filed by the State respondent, it appears that similar stand has been taken by them in their memo of consideration. Learned Counsel appearing for the petitioner has submitted that in the impugned order for consideration dated 7 August, 1998 it was clarified by the State Government that out of 242 posts in the year 1991-92, 10 posts are made for Scheduled Castes and Scheduled Tribes category for which no appointment was made on account of non-availability of such candidates. Therefore, 232 posts were recommended in 1992, out of which 115 candidates joined leaving aside 117 posts for which the candidates did not turn up to join. Therefore, such 117 posts were subsequently forwarded to the Commission in the year 1995 when the Commission made recommendation in the year 1997. The appointment letters were also issued in the year 1997. Therefore, out of 242 posts no post was available. 4. Learned Counsel appearing for the petitioner contended that in the similarly placed situation of the year 1989-90 the posts were filled up pursuant to the order of the Court dated 19th January, 1996 passed in Writ Petition No. 2280 (SB) of 1992 and Writ Petition No. 117 (SB) of 1995. 5. According to us, there is basic difference in respect of these two orders. 5. According to us, there is basic difference in respect of these two orders. In such case mandatory order was passed directing the State to comply with the order by filling up the vacancy from the waiting list. No appeal has been preferred by the State from such mandatory order. The order of the Division Bench dated 29th May, 1997 does not speak any mandatory order but order for consideration. Therefore, it left entirely in the hands of the State but the State by order impugned communicated that there is no vacancy available. Therefore, when clear case of the petitioner is that the waiting list will lapse after one year of the selection and pursuant to the direction of the Court on 29th May, 1997 the State was unable to accept the proposal due to non-availability of vacancy, we are of the view that we cannot accept any submission on behalf of the petitioner for the purpose of passing any affirmative order so belatedly inspite of our sympathy. Therefore, the writ petition is dismissed. Interim order, if any, stands vacated. However, no order is passed as to costs. Hon’ble S.P. Mehrotra, J.—I agree. ————