JUDGMENT Honble Sudhir Agarwal, J.—Sri S.M.A. Kazmi, learned Senior Advocate, assisted by Sri S.P. Pandey, Advocate, on behalf of applicant-respondent No. 1 (hereinafter referred to as the ‘petitioner’), Sri Yogendra Kumar Yadav, learned Standing Counsel and Sri M.A. Qadeer, Advocate, on behalf of the appellant and respondent No. 2, i.e., U.P. Public Service Commission (hereinafter referred to as the “Commission”) have been heard at length. 2. The petitioner has filed this application seeking recall of our judgment dated 30-10-2007 whereby the Special Appeal No. 99 of 1999 was allowed and the judgment of Hon’ble Single Judge was reversed as also the writ petition of the petitioner was dismissed. 3. It is submitted by the learned Counsel for the petitioner that he was engaged in another matter before another Court and, therefore, could not appear and make submission when the intra Court Appeal was heard and decided by this Court on 30-10-2007 and thus, he has requested that he may be given an opportunity to address the Court on merits of the issue since several judgments and Government Orders, which are applicable and relevant to the question and issue, could not have been placed before the Court, which would have impact on the ultimate result of the appeal. In order to satisfy ourselves as to whether the judgment dated 30.10.2007 passed by us needs to be recalled on merits, we permitted the learned Counsel for the petitioner to place those Government Orders and the judgments, of which he has made an averment in para-10 of the affidavit filed in support of the recall application that the same are relevant and applicable in the facts and circumstances of the present case, which allegedly have not been Considered by this Court, whereupon Sri Kazmi, at the outset made a statement at the bar that law is well settled that a wait-listed candidate has no indefeasible right to get appointment and, therefore, it is difficult to submit that the judgment dated 30-10-2007 is not correct so far as the question of law considered and decided therein, is concerned. 4. 4. He, however, submits that since there are some developments during the pendency of the appeal, which needs to be considered and requested that this Court may exercise its extraordinary discretionary jurisdiction to look into those subsequent events so that even if the appeal, on the question of law, has rightly been allowed, as a consequence thereof, the petitioner may not loose his job, which he has got during her pendency of the Appeal. He submitted that it is for this reason, he is pursuing the discretionary and equitable jurisdiction of this Court. He also cited some authorities on the question that once a person has been appointed and continued for a long time, even if on the question of law the matter is decided otherwise, the appointment of such a person need not be annulled and should be protected. In support of his submissions that the Court can mould relief, he has placed reliance on the Apex Court’s decision in 1986 (2) SCC 679 , Comptroller & Auditor General of India and another v. K.S. Jagannathan and another and 2002 (2) SCC 475 , Food Corporation of India v. S.N. Nagarkar. 5. In view of the statement of the learned Senior Advocate appearing for the petitioner that he is not in a position to assail the judgment dated 30-10-2007 on merits, and, legal issue decided therein is in accordance with the binding authorities of the Apex Court on the said issue, in our view, this application needed no further consideration and is liable to be rejected at the threshold. However, since the learned Counsel for the petitioner has made submissions at great length citing certain authorities of the Apex Court, requesting this Court to show judicial discretion and benevolence to the petitioner so that as a consequence of the judgment dated 30-10-2007, he may not loose his appointment, we propose to consider sustainability of the aforesaid submission also in the facts and circumstances as well as the legal position on this aspect of the matter. 6. 6. Since our judgment dated 30-10-2007 has decided the question of law argued before us and, therefore,the factual background of the matter was not detailed therein more particularly for the reason that the same was also stated by the Hon’ble Single Judge in the judgment dated 9-4-1998 which was reversed by us in the intra Court appeal but in order to appreciate the submissions of the learned Counsel for the petitioner, we find it appropriate to place the facts straight in this order also. 7. The Commission published an advertisement on 21-12-1991 notifying recruitment of Upper/Lower Division Assistants (hereinafter referred to as “UDA” and “LDA” respectively) in U.P. Secretariat as well as in the Commission and termed as “Public Service Commission Upper/Lower Division Assistant and U.P. Secretariat Upper/Lower Division Assistant Examination, 1991” (hereinafter referred to as “1991 Examination”). The number of vacancies advertised therein were as under : 1. Upper Division Asst. in Lok Seva Aayog 17 2. Lower Division Asst. in Lok Seva Aayog 8 3. Upper Division Asst. in U.P. Secretariat 240 4. Lower Division Asst. in U.P. Secretariat 61 8. The recruitment consisted of a written test wherein the petitioner participated and the result of the said examination was declared by the Commission on 31-1-1996. 260 candidates were declared successful for the post of UDA and 280 were declared successful for the post of LDA. The said list of selected candidates did not include the roll No. of the petitioner. Contending that against 260 vacancies of UDA,19 selected candidates did not join the service and, therefore, those vacancies ought to have been filled in by the appellant and the Commission from the wait list, the petitioner approached this Court by means of writ petition No. 32389 of 1997. He said that the last selected candidate in the list of UDA has secured 305 marks and the petitioner has secured 304 marks and, therefore, he being the wait-list candidate ought to have been recommended and appointed against the 19 unfilled vacancies which remained vacant due to non-joining of selected candidates. However, the prayer as couched in the writ petition by the petitioner did not confine itself for the vacancies which remained unfilled due to non-joining of selected candidates, but, instead, it also sought a writ of mandamus commanding the authorities concerned to fill in all the vacancies which occurred due to resignation of the candidates etc. However, the prayer as couched in the writ petition by the petitioner did not confine itself for the vacancies which remained unfilled due to non-joining of selected candidates, but, instead, it also sought a writ of mandamus commanding the authorities concerned to fill in all the vacancies which occurred due to resignation of the candidates etc. during the period of one year from the date of declaration of select list. The relief sought by the petitioner in the writ petition is reproduced as under : “(i) Issue a writ, order or direction in the nature of mandamus commanding the opp. party No. 1 to sent requisition to the Commission for sending the name of the candidates included in the waiting list for all the vacancies occurred due to resignation of the candidates from the post of U.D.A. during the period of one year and the opp party No. 2 may be commanded throughout a writ of mandamus to recommend the names of the candidates included in the waiting list prepared on the basis of the selection made in pursuance to the advertisement dated 21-12-91 (Annexure-2 to the writ petition) within some stipulated period prior to expiry of the period of one year as this Hon’ble Court may considers fit and proper. (ii) Issue a writ, order or direction in the nature of mandamus commanding the opp. parties to compute the period of one year from the date of final recommendation sent by the Commission for appointment of the candidates to the State Government on the existing 260 vacancies for which the present selection has been made. (iii) Issue any other writ, order or direction or to pass such other and further order as this Hon’ble Court may deem fit, just and proper in the present case. (iv) Award the cost of petition to the petitioner.” 9. The aforesaid writ petition was entertained by the Hon’ble Single Judge on 30-9-1997 and while granting time to the State Government as well as the Commission to file counter affidavit, it passed the following interim order on the same date : “Shri V.M. Sahai accepts notice on behalf of respondent No. 2. Sri Parihar, learned standing Counsel accepts notice on behalf of respondent No. 1. They pray for and are granted four weeks time to file a counter-affidavit. Rejoinder affidavit may be filed within two weeks thereafter. List in the week commencing 17-11-97. Sri Parihar, learned standing Counsel accepts notice on behalf of respondent No. 1. They pray for and are granted four weeks time to file a counter-affidavit. Rejoinder affidavit may be filed within two weeks thereafter. List in the week commencing 17-11-97. Any selection made in respect of the vacancies against which the wait list was prepared shall be, subject to the result of the writ petition.” 10. The State of U.P. in its counter-affidavit which was sworn by Sri K.M. Lal, Special Secretary, Karmik Vibhag, U.P. Civil Secretariat, Lucknow in para-3 pleaded as under : “The persons selected as figured in the select list have joined their respective post. Thus the vacancies, posts have been filled up. There was no scope for vacancies yet to be filled up through the waiting list candidates. Besides more than 2 years are going to expire, whereas the select list including the waiting list survives only for a year. More so, the select list of the year of recruitment, shall be utilised only for the vavancies of that year of recruitment........... It is candid clear that if any candidate joins the post and after sometimes he resigns for the purposes of filling up the vacancies, it has saturated, it cannot be deemed to be a vacant post since the incumbent has already joined the post, later on he resigned........” 11. The Commission also filed its counter-affidavit stating that pursuant to the aforesaid advertisement, written examination was held in September 1993 and the result thereof was declared on 3-12-1996 wherein the petitioner was not declared successful. The recommendation of the selected candidates for the post of UDA could not be sent in one go for the reason that the original documents were not submitted by 29 candidates in the office of the Commission and, therefore, only 220 names for the post of UDA were recommended to the Commission in first phase on 24-4-1996. Subsequently on production of original documents, 8 candidates were recommended on 28-6-1996, one on 25-10-1996 and 18 on 2-4-1997. It is said that no one from wait list has been recommended by the Commission and some of the candidates selected are yet to be recommended for want of original documents. It also said that the Government has requested to make some recommendations from the wait list also vide letter dated 19-2-1997 and the said request is in the process. 12. It also said that the Government has requested to make some recommendations from the wait list also vide letter dated 19-2-1997 and the said request is in the process. 12. The writ petition was heard and allowed by the Hon’ble Single Judge vide judgment dated 9-4-1998. It was held that the Commission admittedly made some recommendations against the vacancies which remained unfilled due to non joining of the selected candidates. In addition thereto, 2 candidates for the post of UDA and 5 for the post of LDA were recommended against the vacancies for which candidature of selected candidates was rescinded due to non-submission of requisite testimonials. However, it proceeded further and held that the vacancies which have occurred as a result of resignation or otherwise of selected candidates after they joined the service during the period of one year from the date of selection, such vacancies are also liable to be filled in from amongst the wait-listed candidates and for taking the said view, it placed reliance on Abdul Wasim and another v. Collector, Budaun and others, 1997 (2) ESC 1011 and Dr. Arvind Kumar v. State of U.P. and others, 1987 UPLBEC 1006 and, accordingly, issued a mandamus to the State Government as well as Commission to fill in such vacancies from the wait list of the candidates in order of merit. 13. Aggrieved by the aforesaid judgment, intra Court appeal was preferred by the State of U.P. Intitially, this Court stayed the judgment in appeal vide order dated 8-6-1998, extended by order dated 15-6-1998 but thereafter the Division Bench while admitting the appeal passed following order on 14-7-1998 : “We are not satisfied that this is a fit case for grant of stay of operation of the impugned judgment. However, it is made clear that any appointment made in pursuance of the impugned judgment will be subject to the result of the appeal and it shall be stated in the appointment order issued henceforth.” 14. Since the judgment was not stayed, the petitioner insisted upon the State Government to send requisition as per the direction issued by Hon’ble Single Judge so that the Commission may make further recommendations and appointments be made accordingly. When the State Government did not proceed, it appears that a Contempt Petition No. 1216 of 2000 was also preferred. Since the judgment was not stayed, the petitioner insisted upon the State Government to send requisition as per the direction issued by Hon’ble Single Judge so that the Commission may make further recommendations and appointments be made accordingly. When the State Government did not proceed, it appears that a Contempt Petition No. 1216 of 2000 was also preferred. The State Government ultimately took action as directed by the Hon’ble Single Judge and as a result thereof, the petitioner and some other persons were appointed in the year 2000. 15. Learned Counsel for the petitioner contended that since he has been appointed and has been working in the Secretariat of State of U.P. for the last 8 years, therefore, even if on the legal question, the judgment of the Hon’ble Single Judge is not sustainable, yet this Court can protect the interest of the petitioner as otherwise it would cause irreparable loss and injury to him, who is now overage and cannot get any appointment elsewhere. Therefore, it is argued that even if the intra Court appeal of the State Government has rightly been allowed, yet atleast the appointment of the petitioner made in 2000 pursuant to the judgment of the Hon’ble Single Judge should be protected as was done by the Apex Court in S. Renuka and others v. State of A.P. and another, 2002 (5) SCC 195 and H.C. Puttaswami and others v. Chief Justice of Karnataka High Court, 1991 Supp (2) SCC 421. 16. During the course of arguments, learned Counsel for the Commission has also produced for perusal of the Court the various requisitions received from the Government pertaining to recruitment in question as well as correspondence in regard to the aforesaid selection resulting in appointment of the petitioner. With the consent of the learned Counsel for the parties, we have perused the same and the facts as discern therefrom are being mentioned hereinafter. It appears therefrom, that vide letter dated 19-2-1991, the State Government requisitioned 185 vacancies of UDA, in Secretariat. Out of 185, 83 were available for general candidates and rest were reserved for different class like SC, ST, OBC, Dependent of Freedom Fighters, Handicapped persons etc. Another requisition was issued on 22-4-1991 for 55 vacancies of UDA in Secretariat which included 27 for general and rest reserved for various categories. Thus making a total requisition of 240 vacancies of UDA in Secretariat. Another requisition was issued on 22-4-1991 for 55 vacancies of UDA in Secretariat which included 27 for general and rest reserved for various categories. Thus making a total requisition of 240 vacancies of UDA in Secretariat. The aforesaid vacancies were advertised by the Commission on 22-12-1991 vide advertisement No. A-3/E-4/91-92. The said advertisement also included 17 vacancies of UDA in Commission itself. Subsequently, vide letter dated 4-3-1993, the State Government informed the Commission that pursuant to the recruitment of 1989, 8 vacancies of UDA in Secretariat remained unfilled and, therefore, they have to be carried forward in the next recruitment. Besides, one vacancy of UDA in Secretariat occurred in 1991-92 due to retirement which is to be filled in by direct recruitment. Therefore, it requested the Commission that in the recruitment already notified, the aforesaid 9 vacancies may also be included. Thus, in all, 249 vacancies were requisitioned to the Commission by the State Government. 17 vacancies of UDA in Commission were already advertised making the total vacancies of UDA to 266. It is, however, not disputed that the aforesaid 9 vacancies, which were requisitioned on 4-3-1993 on the post of UDA in Secretariat could not be included in the aforesaid advertisement and there is nothing on record to show that any additional or supplementary advertisement was published by the Commission. The written test was held between 14-9-1993 to 24-9-1993 wherein 27051 candidates appeared. The Commission declared the select list of 260 candidates for the post of UDA against the total vacancies of 266 though in respect to the LDA, the number of vacancies advertised were 69 only but the result of the candidates, who were declared successful showed 280 names meaning thereby a long wait list was also declared by way of select list in respect of LDA but in respect to UDA, only 260 candidates were declared successful. Some of the candidates were appointed by the Commission on the post of UDA in its office. For Government, at the first instance, vide letter dated 24-4-1996, the Commission recommended 220 candidates for appointment to the post of UDA against 134 General, 35 SC, 5 Dependents of Freedom Fighters, 4 Handicapped persons, 4 ST, 3 Ex-Servicemen and 35 OBD. The list of general candidates also included 21 OBC and 4 Dependent of Freedom Fighters, who found their place amongst the general category candidates on account of their merit. The list of general candidates also included 21 OBC and 4 Dependent of Freedom Fighters, who found their place amongst the general category candidates on account of their merit. The names of 29 candidates could not be recommended on account of non submission of original testimonials for verification before the Commission. Thereafter, since some of the candidates produced original documents for verification, 8 names were recommended vide letter dated 28-6-1996, one on 25-10-1996 and 18 on 2-4-1997. In the meantime, the State Government vide letter dated 19-2-1997 informed the Commission that the candidates who were recommended for appointment to the post of UDA vide letters dated 24-4-1996, 28-6-1996 and 25-10-1996, 19 have not joined despite issuance of letters of appointment and, therefore, their candidature has been cancelled. The State Government, accordingly, requested the Commission to send additional recommendation from the wait list against 19 unfilled vacancies on account of non joining of the selected candidates on the post of UDA. The Commission, pursuant to the State Government’s letter dated 19-2-1997, considered the matter of recommendation of the candidates from the wait list, and, vide letter dated 20-12-1997 recommended 13 more names. In the said letter, the Commission also observed that vide interim order dated 13-9-1997 passed by this Court in writ petition No. 32389 of 1997 of the petitioner, since selection from the wait list has been made subject to the result of the writ petition, therefore, the aforesaid recommendation shall be subject to the final decision of the Court. 4 names were recommended by the Commission as a result of reshuffling in furtherance of its letter dated 20-12-1997, vide letter dated 19-5-1998, and the said recommendation was also made subject to the result of the writ petition of the petitioner. 17. 4 names were recommended by the Commission as a result of reshuffling in furtherance of its letter dated 20-12-1997, vide letter dated 19-5-1998, and the said recommendation was also made subject to the result of the writ petition of the petitioner. 17. In the meantime, since the Hon’ble Single Judge decided the writ petition of the petitioner vide judgment dated 9-4-1998, directing the State Government to call for further names against the vacancies which occurred during the subsistence of select list on account of resignation of the candidates after joining, the State Government sent a letter dated 27-11-1998 informing the Commission that despite of its recommendations made vide letters dated 20-12-1997 and 19-5-1998, still 4 selected candidates have not joined on the post of UDA and within one year, i.e., from 24-4-1996 to 23-4-1997, 4 persons who joined on the post of UDA were subsequently relieved for joining elsewhere and, therefore, against their resultant vacancies also, as per the judgment dated 9-4-1998, the Commission should make recommendation and thus requisitioned 8 names from the wait list. Pursuant to the letter dated 27-11-1998, the Commission vide letter dated 23-12-1998 recommended names of 6 candidates. It appears that thereafter the petitioner made representation on 19-12-1998 to the State Government submitting that the period of one year would commence from 20-12-1997 and, therefore, the select list would have to continue for one year. i.e., upto 19-12-1998 and all the vacancies which occurred due to resignation upto 19-12-1998 were liable to be filled in from the wait-list of 1991 Examination. It further appears that the State Government agreeing to the said representation sent a further letter dated 20-2-1999 informing the Commission that upto 19-12-1998, 37 UDAs have resigned after appointment and joining the post and, therefore, 37 names from the wait-list of 1991 Examination be sent as per the judgment dated 9-4-1998. The Commission, however, vide its letter dated 14-5-1999 sent a list of 41 candidates for appointment to the post of UDA pursuant to the said letter dated 20-2-1999 of the State Government which included the name of the petitioner also. 18. The Commission, however, vide its letter dated 14-5-1999 sent a list of 41 candidates for appointment to the post of UDA pursuant to the said letter dated 20-2-1999 of the State Government which included the name of the petitioner also. 18. It is interesting to note that though the aforesaid recommendation was said to be made in view of the judgment dated 9-4-1998 passed by this Court in writ petition No. 32389 of 1997, yet in the aforesaid letter of the Commission, in para-2, it was mentioned that the aforesaid recommendation is subject to the final decision of the High Court in writ petition No.32389 of 1997, though it was already decided on 9-4-1998 and in fact in May 1999 Special Appeal was pending wherein an order had already been passed on 14-7-1998 directing that the appointment, if any, made pursuant to the judgment, impugned in the intra Court appeal, would be subject to the result of the appeal and this fact shall be stated in the appointment orders issued. However, it is in these circumstances and pursuant to the aforesaid recommendation that the applicant-respondent No. 1 was appointed on the post of UDA. 19. From the above facts, the situation which emerges undisputedly is that the appointment of the petitioner during the pendency of this appeal was not unconditional but on a categorical condition that the same would be subject to the result of the appeal and, therefore, for the mere fact the petitioner has continued to work for about 8 years during the pendency of the appeal, we do not find any reason to make the said condition redundant. Moreover, the claim of the petitioner is not against the unfilled vacancies in the same selection on account of non joining of selected candidates but it is eniterly based against those vacancies which resulted due to resignation of selected candidates i.e., those who after appointment, joined their service, worked for sometime, and, thereafter, resigned from service for various reasons namely, since they got appointment in some other better service or otherwise. 20. The number of posts of UDA advertised in 1991 Examination were 240 in the Secretariat and 17 in Public Service Commission. 20. The number of posts of UDA advertised in 1991 Examination were 240 in the Secretariat and 17 in Public Service Commission. It is not disputed that 17 vacancies in the Commission got filled in by the candidates who were selected in the aforesaid examination and there is no claim with respect to any such vacancy of UDA in the Commission. The entire claim is in respect to the post of UDA in the Secretariat. There, it appears that besides 240 vacancies, which were advertised, the State Government and the Commission also proceeded to fill in 9 vacancies which were requisitioned to the Commission after the advertisement, i.e., vide State Government’s letter dated 4-3-1993. It is not disputed, and, at least there is nothing on record to show that the advertisement was modified or any addenda was published by the Commission increasing the number of vacancies of UDA in the Secretariat from 240 to 249. 21. The manner in which these vacancies have been filled in, we would deal hereinafter. First we take up the case of 240 vacancies of UDA which were actually advertised vide advertisement dated 21-12-1991. (1) 220 names were recommended vide letter dated 24-4-1996 out of which 15 candidates, namely, Badri Nath Singh (34218), Rajesh Kumar Tripathi (53591), Vidya Sagar Misra (53038), Ajay Kumar Singh (53902), Rajesh Kumar Tiwari (52185), Ashok Kumar (75927), Shyam Sunder Dubey (15649), Harsh Kumar Sinha (56478), Shashi Bhushan Singh Tomar (58850), Ratan (27604), Pramod Kumar (53874), Kamlesh (73847), Harishchandra Verma (55319), Raj Bahadur (56372) and Devendra Kumar (24150) did not join and their candidature was cancelled whereupon the State Government required the Commission to send additional names from the wait list vide its letter dated 10.2.1997. Thus 205 vacancies got filled in against 220 names recommended by the Commission vide letter dated 24-4-1996. (2) The Commission recommended 8 names vide letter dated 28-6-1996, one vide letter dated 25-10-1996 and out of these 9 candidates, 4 candidates did not join, namely, Moti Lal Yadav (00195), Arvind Kumar (02371), Kaushlesh Shukla (54385) and Vijay Kumar (21557). Hence, their candidature was also cancelled. Against their names also additional recommendation was sought from the Commission by the State Government vide letter dated 19-2-1997. Thus, it leads to 210 vacancies filled in leaving 30 unfilled. (3) The Commission thereafter recommended 18 names vide letter dated 2-4-1997. Out of these 18 candidates, 2 did not join. Hence, their candidature was also cancelled. Against their names also additional recommendation was sought from the Commission by the State Government vide letter dated 19-2-1997. Thus, it leads to 210 vacancies filled in leaving 30 unfilled. (3) The Commission thereafter recommended 18 names vide letter dated 2-4-1997. Out of these 18 candidates, 2 did not join. Thus, the total vacancies out of 240 which were filled in comes to 226. (4) Vide letter dated 7-10-1997, the State Government informed that candidature of two candidates on the post of UDA on account of non joining has been cancelled and re-questioned the Commission to send additional names. (5) The Commission, thereafter, recommended 13 candidates vide letter dated 20-12-1997 and 4 candidates vide letter dated 19-5-1998 for appointment. This makes the number of appointments made as 243. 22. Therefore, all the 240 vacancies of UDA in Secretariat which were advertised were actually already filled in by the State Government pursuant to the Commission’s letter dated 19-5-1998 and there was no scope for claiming any right of consideration of appointment against vacancies advertised by the Commission to be filled in from the wait list, since, out of 240 vacancies, all were filled in from the select list as well as wait list and there did not remain any advertised vacancy available against which the petitioner could have been considered. 23. The State Government vide letter dated 27-11-1998 requested for 8 more names from Commission stating that from 24-4-1996 to 23-4-1997, 4 candidates, who appointed and joined, have subsequently been relieved to join other services and in the resultant vacancies, 4 more candidates have to be appointed. Besides, 4 candidates have not joined and, therefore, in all 8 names be sent from the wait list. It was clearly stated that the said requisition was sent pursuant to the direction of this Court as contained in the judgment dated 9-4-1998, i.e., the impugned judgment passed by Hon’ble Single Judge, which is subject matter of the appeal. The Commission, however, vide letter dated 23-12-1998 recommended only 6 candidates from the wait list, 3 belong to OBC, 2 to Scheduled Caste and one Dependent of Freedom Fighters. The Commission, however, vide letter dated 23-12-1998 recommended only 6 candidates from the wait list, 3 belong to OBC, 2 to Scheduled Caste and one Dependent of Freedom Fighters. These 6 recommendees resulted in appointment of all the candidates against 249 vacancies, i.e., 240 which were advertised and 9 which were requisitioned to the Commission vide letter dated 4-3-1993, i.e., after the advertisement was published and it appears that the Commission and the State Government proceeded to fill in the said 9 vacancies from the Selection in question. Upto this level, admittedly, the petitioner did not figure even in the wait list to get appointment against any of the said 249 vacancies. 24. Before proceeding further, we also find it appropriate to observe that since there is no challenge to the appointment made against the 9 vacancies of UDA, which were not advertised, we are not passing any order which may affect the said appointments in any manner, but in order to put legal position straight, we find it necessary to remind all the authorities that the law is well settled that the vacancy, which has not been advertised in a particular selection should not be filled in from the select list prepared for that selection. 25. A select list would be valid for the vacancies which have been advertised and selection has been made thereagainst. In State of Bihar and another v. Madan Mohan Singh and others, 1994 Supp (3) SCC 308, a three-Judge Bench of the Apex Court held that a select list prepared for filling up vacancies would be valid only for those vacancies for which it was prepared and for other vacancies, fresh list has to be prepared. It was held that no appointment could be made from the list prepared for the vacancies not advertised. Similarly, in Kamlesh Kumar Sharma v. Yogesh Kumar Gupta and others, 1998 (3) SCC 45 , it was held that a vacancy occurred in the succeeding year in question for which no advertisement was made, cannot be filled in by appointing a person on the panel of the earlier selection. The said view has been followed recently also in State of U.P. and another v. Nidhi Khanna and another JT 2007 (7) SC 93. 26. The said view has been followed recently also in State of U.P. and another v. Nidhi Khanna and another JT 2007 (7) SC 93. 26. In State of Punjab v. Raghbir Chand Sharma AIR 2001 SC 2900 , the Apex Court clearly held that once a selected candidate joins the post, the select list against that vacancy stands exhausted and no one can claim from the said panel appointment either in the vacancy arising on account of resignation of the said person or any other vacancy arising subsequently during the period the select list would have been operated. The select list against the vacancies notified seized to exist having outlive its utility and cannot be used even against vacancies which may arise on account of resignation of the person appointed from the said panel. 27. A Division Bench of this Court in District Judge, Baghpat and others v. Anurag Kumar and others, 2005 (2) ESC 1509 (All) has also taken the same view and in para-22 of the judgment, it held as under : “22. In view of the above, we are of the considered opinion that as only ten vacancies had been advertised, there could be no justification for the authority concerned to fill up more than ten vacancies as it included the then existing as well as vacancies likely to occur in the course of the year. Once ten vacancies had been filled up, the selection process stood exhausted, and the authority concerned become functus officio. Any appointment made by him beyond that number, is without jurisdiction, therefore a nullity, inexecutable and un-enforceable in law." 28. However, we again reiterate and make it clear that the legal position explained above shall not be taken to affect the appointment of the candidates already made against the 9 vacancies, which were not advertised in the aforesaid selection for the reason that neither those candidates are party in these matters nor their appointments are under challenge either in the writ petition or in appeal. But, in our view, the claim of the candidates, who are still lower in merit in wait list for claiming appointment against the vacancies which have already been filled in, but subsequently occurred due to resignation of the candidates, we do not find any justification for such claim either in law or even otherwise. But, in our view, the claim of the candidates, who are still lower in merit in wait list for claiming appointment against the vacancies which have already been filled in, but subsequently occurred due to resignation of the candidates, we do not find any justification for such claim either in law or even otherwise. We make it very clear that so far as the claim of the so called wait list candidates is concerned, as soon as 240 advertised vacancies of UDA got filled in by appointment of the candidates and their joining, thereafter no person in the wait list could have rest his claim in any manner at any point of time on any ground whatsoever including that subsequently since appointed candidate has resigned, therefore, against the resultant vacancy, he must be considered and the said vacancy should be treated to be a vacancy against the same selection in which he had appeared. 29. It is worthy to mention at this stage that recruitment on the post of UDA is governed by U.P. Secretariat Ministerial Employees Cadre Rules and the year of recruitment in the selection in question was from 1-7-1991 to 30-6-1992. In the advertisement also the cut-off date for the purpose of eligibility in age was 1st July, 1991. We have also gone through the Government Orders which provides the life of select list as one year and prohibits any appointment from the select list after one year. The position as emerges therefrom is as under : (a) The Government Order No. 4/2/1977 (14) Karmik-1 dated 30-1-1979 Para-3 provides that after one year from the date of declaration of result by the Commission no vacancy shall be filled in from the said selection and no candidate shall be allotted for appointment thereafter, but the candidates already allotted may be appointed even if the process of appointment has taken greater time. (b) Similar is the position in the Government orders No. 25/5/80-Karmik-2 dated 2-2-1981 and 28/5/1980-Karmik-1 dated 15-7-1982. (b) Similar is the position in the Government orders No. 25/5/80-Karmik-2 dated 2-2-1981 and 28/5/1980-Karmik-1 dated 15-7-1982. (c) The Government Order No. 28-5-1980-Karmik-1 dated 25-3-1985 however provides that in the Departments wherein annual recruitment is not made and on the contrary selection is held after a gap of several years, the wait list prepared by the Commission may be utilized till next selection provided the vacancy is of the same recruitment year for which requisition was sent and result was declared, and the vacancy after treating it to be carrying forward, has not been requisitioned to the Commission. (d) After review of the entire thing, a Government Order No. U.O.-711/47-Ka-4-92-28/5/80 dated 29-8-1992 was issued. It provided that the wait list shall be valid for only one year and shall not be utilized thereafter. However, it further provides that the period of one year shall be counted from the date of receipt of allotment by the Department. it further provides that vacancies remained unfilled shall be carried forward for next selection. (e) To the same effect is the Government Order No. 1760-Aa/47-Ka-4-93-28-5-1980 dated 31-1-1994. (f) The question whether a vacancy which was filled in by a candidate but recur due to his resignation during the period of one year, when the select list is operating, can be filled in from such selection was considered by the Government and Government Order No. 28/5/80-Ka-4-1997 dated 23-12-1997 held that such vacancy cannot be filled in from the aforesaid selection as it has to be treated a fresh vacancy which has to be advertised afresh. 30. In the light of the aforesaid Government Orders, firstly we would consider as to when the period of one year would commence. In view of the Government order dated 29-8-1992, the period of one year shall be counted from the date of receipt of the allotment by the Department. The meaning of the word “allotment” is that the list of selected candidates against the advertised vacancies for the first time is made available to the Department. From the narration of the facts, it is evident that 240 names from the select list were allotted to the Department in the following manner : Number of the candidates Date of letter sent by Commission recommended 220 24-4-1996 8 28-6-1996 1 25-10-1996 18 2-4-1997 Total : 247 31. From the narration of the facts, it is evident that 240 names from the select list were allotted to the Department in the following manner : Number of the candidates Date of letter sent by Commission recommended 220 24-4-1996 8 28-6-1996 1 25-10-1996 18 2-4-1997 Total : 247 31. Thus, all the 240 candidates against the advertised vacancies were allotted to the Department, i.e., Government vide the aforesaid four letters. The last one of which is dated 2-4-1997. Therefore, the period of one year, in our view, would commence, in any case, latest with effect from 2-4-1997. The subsequent letters and recommendations sent by the Commission cannot and shall not extend the commencement of the period of select list in any manner. The claim of the petitioner to treat commencement of one year from the letter dated 20-12-1997, whereby 13 more names were recommended by the Commission is incorrect and contrary to the aforesaid provision. Also, nothing has been brought before us to show that the reckoning point of one year’s period of select list should be considered by the authorities by taking even such letters of the Commission which make recommendation beyond the number of vacancies advertised after making recommendation of the candidates equal to the number of vacancies advertised even subsequent event like non-joining of candidates and additional recommendation as a result thereof will not provide any extension to the commencement of one year period of select list. The personal Department of the Government also in our view incorrectly opined that for the purpose of counting one year validity period of the select list, the commencement should be from the letter dated 20-12-1997. The number of total names recommended to the Government by the Commission would come to 260 if we take letter dated 20-12-1997 also into consideration, though, admittedly, only 240 vacancies were advertised. Therefore, by any stretch of imagination, and by any application or even extra stretching of various Government Orders, as referred to above, we are not in a position to bring in the petitioner in any manner to have any sort of claim for appointment pursuant to the selection in question. Thus, it cannot be said that the petitioner could have been appointed pursuant to the aforesaid selection. Thus, it cannot be said that the petitioner could have been appointed pursuant to the aforesaid selection. As we have already held, not only the judgment of the Hon’ble Single Judge was not sustainable in law, but even the State Government, it appears, extended the benefit of the said judgment by even twisting and enlarging it to an extent to which it was not permissible at all, and, thereby made large number of appointments from the wait list against fresh vacancies. We are informed that about 37 further appointments were made including the petitioner on the pretext of complying the judgment of the Hon’ble Single Judge. This exercise smacks of some kind of involvement of somebody somewhere and cannot be said to be a valid and bona fide exercise of power by the authorities of the appellant. 32. Be that as it may, from the facts as we have analysed, it is evident that the petitioner had no claim at all in any manner to get appointment pursuant to the judgment of the Hon’ble Single Judge against the vacancies advertised in the aforesaid selection. Thus, his appointment during the pendency of this appeal in the purported compliance of the judgment of the Hon’ble Single Judge was clearly made wholly illegally and by enlarging the scope of judgment of Hon’ble Single Judge to an extent which was not permissible at all. It, thus, would not confer any right, legal, equitable or otherwise upon him which can be protected as has been prayed by him. 33. Now, we come to next aspect of the matter that since the petitioner has been appointed during the pendency of this appeal and despite of an interim order passed by this Court that the appointment, if any, shall be subject to the result of the appeal, should this Court pass an order, and, more so, can this Court pass any order protecting the aforesaid appointment of the petitioner, though the judgment of the Hon’ble Single Judge, pursuant whereto the said appointment was made, has been set aside in the appeal, having been found unsustainable in law. The learned Counsel for the petitioner, in support of the aforesaid submission, has relied upon the Apex Court judgments in S. Renuka (supra) and H.C. Puttaswami (supra). The learned Counsel for the petitioner, in support of the aforesaid submission, has relied upon the Apex Court judgments in S. Renuka (supra) and H.C. Puttaswami (supra). We find that the judgment in S. Renuka (supra) does not help petitioner in any manner inasmuch the petitioners were not appointed therein and the request of the petitioners that they may be appointed against ex cadre post was also turned down by the Apex Court. In H.C. Puttaswami (supra), the Court passed the order in view of the statement made by the learned Advocate General of the State observing that precedents apart the circumstances of the case justify an humanitarian approach as is evident from para 16 of the judgment, which is reproduced as under : “16. The precedents apart, the circumstances of this case justify an humanitarian approach and indeed, the appellants seem to deserve justice ruled by mercy. We also take note of the fact that the writ petitioners also would be appointed in the High Court as stated by learned Advocate General of the State.” 34. Apparently, the directions of the Apex Court are referable to its power under Article 142 of the Constitution. However, this Court while exercising its power under Article 226 of the Constitution is bound to act strictly in accordance with law and even justice and equity must be within the four corners of law. The Apex Court has held that the High Court should not decide the matters on sentiments and sympathy, ignoring rule of law. Where a person has no right to get appointment on the post or vacancy, which has to be filled in as per the statutory rules, equity, sympathy or sentiments cannot be imported to protect an appointment made by the authorities ignoring rule of law. The principle of equity in a case of this nature will have no role to play. In Maruti Udyog Ltd. v. Ram Lal, 2005 (2) SCC 638 , the Apex Court held that the Court cannot interpret the provisions of an Act ignoring the binding decisions of the Court only by way of sympathy to the workman concerned. The principle of equity in a case of this nature will have no role to play. In Maruti Udyog Ltd. v. Ram Lal, 2005 (2) SCC 638 , the Apex Court held that the Court cannot interpret the provisions of an Act ignoring the binding decisions of the Court only by way of sympathy to the workman concerned. In Teri Oat Estates (P) Ltd. v. U.T. Chandigarh, 2004 (2) SCC 130 , it was held that “.......Sympathy or sentiment by itself cannot be a ground for passing an order in relation whereto the appellants miserably fail to establish a legal right.” The Apex Court also referred to Farewell, L.J. in Latham v. Richard Johnson & Nephew Ltd. (1913) 1 KB 398 observing “We must be very careful not to allow our sympathy with the infant plaintiff to affect our judgment. Sentiment is a dangerous will O the wisp to take as a guide in the search for legal principles.” In Ramakrishna Kamat v. State of Karnataka, 2003 (3) SCC 374 , the Court observed “While being sympathetic to the persons who come before the Court cannot at the same time be unsympathetic to the large number of eligible persons waiting for a long time in a long queue seeking employment.” In Ashok Kumar Sonkar v. Union of India, 2007 (4) SCC 54 , the Court held that if an appointment is illegal, it is non est in the eyes of law rendering the appointment to be a nullity and further held “The appointment, therefore, was illegal and in that view of the matter, it would be wholly improper for us to invoke our equity jurisdiction.” Recently, in Uttar Haryana Bijli Vitran Nigam Ltd. and others v. Surji Devi, 2008 (2) SCC 310 the Court held “Sentiments and sympathy alone cannot be a ground for taking a view different from what is permissible in law.” The Apex Court in U.B. Gadhe and others v. G.M. Gujrat Ambuja Cement Pvt. Ltd., JT 2007 (11) SC 425 strongly commented against the direction issued by the Court bereft of logic and legality and said “The reliefs granted by the Courts must be seen to be logical and tenable within the framework of the law should not incur and justify the criticism that the jurisdiction of the Courts tends to degenerate into misplaced sympathy, generosity and private benevolence. It is essential to maintain the integrity of legal reasoning and the legitimacy of the conclusions. They must emanate logically from the legal findings and the judicial results must be seen to be principled and supportable on those findings. Expansive judicial mood of mistaken and misplaced compassion at the expense of the legitimacy of the process will eventually lead to mutually irreconcilable situations and denude the judicial process of its dignity, authority, predictability and respectabilty." In State of M.P. and others v. Sanjay Kumar Pathak and others, JT 2007 (12) SC 219, the Court observed “ordinarily the writ Court should not in absence of any legal right act on the basis of sympathy alone.” Even a Constitution Bench of the Apex Court in Secretary, State of Karnataka v. Uma Devi and others 2006 (4) SCC 1 referred to the aforesaid observations made in Teri Oat Estates (supra) and Latham v. Richard Johnson (supra) and took the view that even Article 142 would not be exercised by the Court on misplaced sympathy. In view of the aforesaid binding decision and also the law laid down by the Constitution Bench of the Apex Court, we do not find it expedient to accept the contention of the learned Counsel for the petitioner that since he has been appointed during the pendency of the appeal and has worked for about 8 years, therefore, even if the judgment of the Hon’ble Single Judge is set aside, his appointment should be protected. Once the judgment of the Hon’ble Single Judge has been set aside, all consequential steps taken pursuant to the said judgement would also become non est and cannot be protected as that would be against the rule of law and the well known principle that “act of Court shall prejudice none (actus curiae neminem gravabit)” (See: South Eastern Coalfields Ltd. v. State of M.P. and others, 2003 (8) SCC 648 ) and this Court under Article 226 of the Constitution would not pass an order, which would amount to permitting the authorities to act in the breach of rule of law. 35. In view of the aforesaid discussion and in the entirety of the facts and circumstances, we do not find any reason to recall or modify our judgment dated 30-10-2007. 36. The application is, accordingly, rejected. No order as to costs. ————