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2023 DIGILAW 1978 (ALL)

Priyadarshini Singh v. State of U. P.

2023-08-17

SARAL SRIVASTAVA

body2023
JUDGMENT : 1. Heard Sri Ashok Khare, learned Senior Counsel assisted by Sri Durga Prasad Singh, learned counsel for the petitioner, Sri Shrawan Kumar Dubey, learned Additional Chief Standing Counsel for the State-respondent nos.1 & 2 and Sri M.N. Singh, learned counsel for the respondent no.3. 2. The petitioner through the present writ petition has prayed for a writ of mandamus directing the respondent no.1-Additional Chief Secretary (Basic Education), U.P. Government, Lucknow to publish a waiting list for the post of Block Education Officer (Khand Shiksha Adhikari) and further direction to select the petitioner on the post which remains vacant on account of non-joining of selected candidates. 3. The facts in brief of the case are that U.P. Public Service Commission, Prayagraj (hereinafter referred to as 'Commission') published a Notification No.A-4/E-1/2019 dated 13.12.2019 for 309 posts of Block Education Officer. The petitioner possessing the requisite qualifications, applied to be considered for the said post. The petitioner was issued an admit card bearing Roll No.012946. She appeared in the preliminary examination conducted by the Commission, which she qualified. Thereafter, the petitioner appeared in the main examination held on 06.11.2020. The Commission on 30.01.2021 declared the list of 309 candidates qualified for the said posts. However, the petitioner did not qualify as according to the petitioner, she appeared as a general category candidate and secured 207 marks whereas the last selected candidate in the general category secured 208 marks. 4. Further case of the petitioner is that respondent no.2-Additional Director of Education (Basic), Prayagraj issued letters to 271 candidates for appointment to the post of Block Education Officer against 309 successful candidates, therefore, 38 posts of Block Education Officer are vacant as per the appointment list dated 12.03.2021. 5. The petitioner further claims that in an identical controversy State of U.P. has given appointment to one Radha Kulshresththa, who appeared in the examination for the post of Civil Judge (Junior Division) conducted by the Commission and claimed appointment on two vacancies which remained vacant after joining of successful candidates. 5. The petitioner further claims that in an identical controversy State of U.P. has given appointment to one Radha Kulshresththa, who appeared in the examination for the post of Civil Judge (Junior Division) conducted by the Commission and claimed appointment on two vacancies which remained vacant after joining of successful candidates. When the Commission did not pay any heed to her request, she preferred Writ-A No.2008 of 2022 and during the pendency of the said writ petition, a statement was made by the counsel for the Commission that her name has been recommended for appointment as Civil Judge (Junior Division), and therefore, the petitioner is also entitled to parity with petitioner-Radha Kulshresththa in Writ-A No.2008 of 2022. 6. A short counter affidavit dated 11.04.2023 was filed on behalf of respondents nos.1 & 2, stating therein that in the selection under Notification No.A-4/E-1/2019 dated 13.12.2019, 309 candidates were declared provisionally successful/selected for appointment against the 309 posts of Block Education Officer by the Commission out of which selection against 159 posts of general category were made. 7. The State Government in paragraphs nos.6 to 11 of the short counter affidavit has given details of recommendation by the Commission and date of appointment letters issued to the candidates which are as follows : Sl. No. Date of Recommendation by the Commission No. of Candidates recommended by the Commission Date of Appointment Letters No. of candidates for whom appointment letters were issued. 1. 03.03.2021 271 12.03.2021 271 2. 19.04.2021 24 25.05.2021 23 3. 24.06.2021 3 24.08.2021 4 4. 09.11.2021 6 10.12.2021 5 5. 21.01.2021 1 10.02.2021 5 6. 24.11.2022 3 23.03.2023 3 8. It is further stated that in pursuance to the recommendation received by the Commission, the Directorate issued appointment letters to 159 candidates for general category posts, out of which 156 candidates have joined, but 03 candidates have not submitted their joining so far. 9. A detailed counter affidavit has also been filed by the respondent nos.1 & 2 reiterating the facts which have been stated in the short counter affidavit dated 11.04.2023. Another short counter affidavit has also been filed on 03.05.2023 wherein it has been stated that selection on the post of Block Education Officer is governed by U.P. Subordinate Education (Associate District Inspector of Schools) Service Rules, 1992 (hereinafter referred to as 'Rules, 1992). Another short counter affidavit has also been filed on 03.05.2023 wherein it has been stated that selection on the post of Block Education Officer is governed by U.P. Subordinate Education (Associate District Inspector of Schools) Service Rules, 1992 (hereinafter referred to as 'Rules, 1992). It is further stated that under Government Order No.28/5/80-Ka-4-1999 dated 15.11.1999, no waiting list shall be prepared in combined services and other selections except on a selection of single cadre post. It is further stated that the Directorate by letter dated 25.02.2022 sent a requisition for 34 vacant posts of Block Education Officer to the Commission. Accordingly, it is stated that the petitioner cannot be selected for the post of Block Education Officer, and the writ petition lacks merit and deserves to be dismissed. 10. The Commission has also filed a counter affidavit stating therein that after completing the selection process, the final result of the selection in question was declared on 30.01.2021. It is further stated that so far as the unreserved/general category vacancies are concerned, there is no vacancy pending at the level of the Commission. It is also stated that the waiting list is considered to be valid only for one year, and if the department does not send any proposal to the Commission to send names within the specified period, the remaining vacancies, if any, will be considered as carry forward for the next year as per provisions contained in paragraph no.5 & 6 of the Government Order dated 31.01.1994. 11. In the rejoinder affidavit filed by the petitioner, it is stated that Rule 15 (3) of Rules, 1992 clearly stipulates that after receiving the result of the written examination, the Commission shall prepare the merit list based on marks obtained by the selected candidates in written examination against notified vacancy. The select list recommended by the Commission should contain more candidates than the vacancies advertised, but not exceeding 25% more than the advertised vacancy. It is further stated that Rules, 1992 would prevail over the Government Order dated 15.11.1999, and therefore, the Commission ought to have prepared the merit list in compliance with Rule 15 (3) of the Rules, 1992. 12. Sri Ashok Khare, learned Senior Counsel for the petitioner has contended that it is admitted on record that selection for the post of Block Education Officer is governed and regulated by Rules, 1992. 12. Sri Ashok Khare, learned Senior Counsel for the petitioner has contended that it is admitted on record that selection for the post of Block Education Officer is governed and regulated by Rules, 1992. He submits that Rule 15(3) of Rules, 1992 stipulates that after the declaration of the result of the written examination, the Commission shall prepare the merit list based on marks obtained by the candidates and shall recommend the number of candidates as the Commission may deem fit. It further stipulates that if two or more candidates secure equal marks, the Commission shall place them in the merit list as per their merit. The list of selected candidates should contain more number of candidates than the vacancies advertised, but not larger than 25% of the vacancies advertised. Accordingly, it is submitted that Rules, 1992 prescribes that the select list should be of larger candidates than the total number of vacancies advertised subject to a maximum of 25% over and above it, therefore, the action of the Commission in not publishing a waiting list is arbitrary and dehors the Rules, 1992. 13. It is further submitted that it is admitted on record that three vacancies are still lying vacant, and if the Commission had prepared the waiting list of selected candidates, the petitioner, who had secured one mark less than the last selected candidate in the general category would have been selected on the said post. He submits that the stand of the respondent that Rules, 1992 does not prescribe the preparation of a waiting list is incorrect. He further contends that the Government Order dated 15.11.1999 prohibits the preparation of a waiting list only in cases where combined selection is made to various posts, but said rider would not be applicable in cases where selection is in respect to post in a single cadre, and as in the instant case, the selection is concerning the post of Block Education Officer which is a single cadre post, therefore, the said Government Order is not applicable. 14. 14. He further submits that the stand of the respondents that under the Government Order dated 15.11.1999, a waiting list can be prepared only in cases where selection is made for one post in a single cadre is incorrect as the reading of Government Order dated 15.11.1999 suggests that the word ^^,dy laoxksZ ds inksa dks NksM+dj** mentioned in the Government Order dated 15.11.1999 refers to a selection to the post in a single cadre. He, in the alternative, submits that once Rule 15(3) of the Rules, 1992 specifically provides for the preparation of a waiting list, Government Order 15.11.1999 cannot prevail over the Rules, 1992, and therefore, the Commission ought to have prepared the waiting list. Accordingly, it is contended that the petitioner is entitled to the relief as prayed for in the present writ petition. 15. In support of the aforesaid contention, learned counsel for the petitioner has placed reliance upon the following judgements:- i. S.K. Nausad Rahman and Others Vs. Union of India and Others (2022) 12 SCC 1 ; ii. Jata Shankar Vs. State of U.P. and others 2013 SCC Online All 3526; iii. Nadeem Anwar Vs. State of U.P. through Secretary, Department of Govt. U.P. Lucknow and Another 2016 SCC Online All 3001; iv. Sanjay Kumar and Others Vs. State of U.P. and Others passed in Writ-A No.22128 of 2018; v. Sheo Shyam Vs. State of U.P. 2005 (10) SCC 314. 16. Per contra, learned Additional Chief Standing Counsel would contend that the selection on all advertised posts has been made, and as the petitioner did not obtain minimum cut-off marks, therefore, she was not selected. He submits that there is no provision in Rules, 1992 which mandates the preparation of a waiting list by the Commission. He further contends that the Government Order dated 15.11.1999 is specific and clear and provides that a waiting list shall not be prepared with respect to all selections except where the selection is made on one post in a single cadre. In support of his aforesaid contention, he has placed reliance upon the judgement of the Apex Court in the case of State of U.P. Vs. Karunesh Kumar and Others 2023 (1) ADJ 389 SC. 17. In support of his aforesaid contention, he has placed reliance upon the judgement of the Apex Court in the case of State of U.P. Vs. Karunesh Kumar and Others 2023 (1) ADJ 389 SC. 17. Sri M.N. Singh, learned Counsel for the Commission submits that the validity period of the waiting list is one year, and as the result of selection was declared on 30.01.2021 and one year period has expired, therefore, no direction as sought by the petitioner can be issued by this Court. 18. To the aforesaid submission, Sri Ashok Khare, learned Senior Counsel for the petitioner has contended that the validity of the waiting list should be computed from the date of last requisition and not from the date of first requisition. 19. I have considered the rival submissions of the parties and perused the record. 20. The facts as emerge from the record are that under Advertisement No.A-4/E-1/2019 dated 13.12.2019, the petitioner applied for being considered for appointment to the post of Block Education Officer. The petitioner qualified for the preliminary examination, and she appeared in the main examination in which she secured 207 marks, whereas the last selected candidate in the general category secured 208 marks. According to the petitioner, as against 309 vacancies, only 271 candidates have been issued appointment letters, and 38 posts are still lying vacant therefore, the petitioner is liable to be adjusted on the vacant posts. 21. In the short counter affidavit dated 11.04.2023 filed on behalf of respondents nos.1 & 2, it is stated in paragraph no.13 that three general candidates have not submitted their joining so far, meaning thereby even as per the case of the respondents, three posts of general category have not been filled-up against the advertisement No.A-4/E-1/2019. 22. 21. In the short counter affidavit dated 11.04.2023 filed on behalf of respondents nos.1 & 2, it is stated in paragraph no.13 that three general candidates have not submitted their joining so far, meaning thereby even as per the case of the respondents, three posts of general category have not been filled-up against the advertisement No.A-4/E-1/2019. 22. Now, before proceeding with the matter, it would be appropriate to reproduce Rule 15 of the Rules, 1992:- ^^15- vk;ksx ds ek/;e ls lh/kh HkrhZ dh çfØ;k 15- ¼1½ çfr;ksfxrk ijh{kk esa lfEefyr gksus dh vuqefr ds fy, vkosnu ds fy, vkosnu i= vk;ksx }kjk tkjh foKkiu esa Ádkf'kr Ái= esa vkefU=r fd;s tk;sxsA ¼2½ fdlh Hkh vH;FkhZ dks ijh{kk esa lfEefyr ugha fd;k tk;sxk tc rd fd mlds ikl vk;ksx }kjk tkjh fd;k x;k Áos'k i= u gksA ¼3½ fyf[kr ijh{kk ds ifj.kke ÁkIr gks tkus vkSj lkj.khc) dj fy, tkus ds i'pkr vk;ksx vH;fFkZ;ksa dh mudh Áoh.krk Øe esa tSlk fd fyf[kr ijh{kk esa ÁR;sd vH;FkhZ }kjk ÁkIr dqy vadksa ls ÁdV gks] ,d lwph rS;kj djsxk vkSj mruh la[;k esa vH;fFkZ;ksa dks ftruh og fu;qfDr ds fy, mfpr le>s] laLrqr djsxkA ;fn nks ;k vf/kd vH;FkhZ cjkcj&cjkcj vad ÁkIr djs rks vk;ksx muds uke] lsok ds fy, mudh lkekU; mi;qDrrk ds vk/kkj ij] ;ksX;rk Øe esa j[ksxkA lwph esa ukeksa dh la[;k fjfDr;ksa dh la[;k ls vf/kd ¼fdUrq iPphl Áfr'kr ls vukf/kd½ gksxhA vk;ksx lwph fu;qfDr Ákf/kdkjh dks vxzlkfjr djsxkA 23. Rule 15(1) of the Rules, 1992 provides that an admit card shall be issued by the Commission permitting the candidates to appear in the examination. 24. Rule 15(2) of the Rules, 1992 provides that a candidate shall not be allowed to appear in the examination unless he possesses an admit card issued by the Commission. 25. Rule 15 (3) of the Rules, 1992, which is relevant in the instant case, provides that after the declaration of the result, the Commission shall prepare a waiting list based on marks obtained by the candidates and shall recommend as many number of candidates as the Commission may deem fit. In case two or more candidates secure equal marks, then they shall be placed on the merit list according to their merit and suitability. In case two or more candidates secure equal marks, then they shall be placed on the merit list according to their merit and suitability. It further provides that the select list shall contain larger number of candidates than the number of vacancies advertised, but not larger than 25% of the number of vacancies for which selection has been made. 26. Though according to the stand of the respondents, there is no provision in Rules, 1992 which stipulates the preparation of a waiting list in the selection for the post of Block Education Officer since Rule 15(3) of the Rules, 1992 does not embody the specific word 'preparation of waiting list'. However, a reading of Rule 15(3) of the Rules, 1992 unequivocally suggests that the select list to be forwarded by the Commission to the appointing authority shall comprise of names more than the number of vacancies but not more than 25% thereof, which signifies that select list should contain more number of candidates as per Rule 15(3) of the Rules, 1992 than the number of vacancy advertised. 27. This Court in the case of Jata Shanker (supra) interpreted the identical provision in U.P. Group-D Employees Service Rules, 1985, and held that once Rules stipulates for preparation of a waiting list, the selection body is obliged to prepare a waiting list as per Rules. The relevant extract of the aforesaid judgement is reproduced hereinbelow:- "At the point of time when selection process has been undertaken as per U.P. Group D Employees Service Rules 1985, there has been specific provision, which provide for as follows; "(4) The number of the candidates to be selected will be larger (but not larger by more than 25 percent) that the number of vacancies for which the selection has been made. The names in the select list shall be arranged according to the marks awarded at the interview." A bare perusal of the aforementioned provision quoted above would go to show that number of candidates to be selected will be larger but not larger by more than 25 percent that the number of vacancies for which the selection has been made. This provision in question clearly gives a cue that a waiting-list has to be there but it should not be larger i.e. more than 25 percent of the total vacancies. This provision in question clearly gives a cue that a waiting-list has to be there but it should not be larger i.e. more than 25 percent of the total vacancies. The said provision has been done away with when amendment in question has been introduced under the Group 'D' Employees Service (5th Amendment) Rules 1985 but before enforcement of the same, the selection process has already commenced and, in view of this, the selection in question would be covered and governed by unamended U.P. Group D Employees Service Rules 1985 and as per the same there is a provision to prepare a list, which would be a larger list but not larger by more than 25 percent than the number of vacancies for which selection is to be made. Apex Court in the case of P. Mahendran and others Vs. State of Karnataka, 1990 (1) SCC 411 has clearly explained that selection process once it has commenced, then selection would be governed by the Rules as it existed on the date of commencement of Rules, and amended Rules would apply prospectively unless it is expressly or by necessary implication to have retrospective effect. Here the amendment introduced, does not reflect either expressly or by necessary implication to have retrospective effect. In view of this, to say that there is no provision of waiting-list cannot be accepted by this Court. The purpose of waiting-list is to see and ensure that after selected candidates have failed to join for whatever the reasons there may be, then the candidates of waiting-list can be offered appointment as per their merit status. A candidate of waiting-list cannot, however, claim appointment qua the vacancies, which have fallen vacant, after the selected candidates have joined. Apex Court time and again has explained as to what is the object of preparation of waiting list. In the case of Surendra Singh Vs. State of Punjab, 1997 (8) SCC 478, it has been ruled that a waiting list prepared in an examination does not furnish a source of recruitment. It is only operative in contingency that if any selected candidate does not join, then the candidate from waiting list can be pushed up. View to the similar effect has been reiterated in the case of Sri Kant Tripathi Vs. It is only operative in contingency that if any selected candidate does not join, then the candidate from waiting list can be pushed up. View to the similar effect has been reiterated in the case of Sri Kant Tripathi Vs. State of U.P. and others, 2001 (10) SCC 237 , by mentioning that wait list candidate has no vested right to be appointed except when selected candidate does not join while the waiting list is still operative.” 28. Similarly, in the case of Nadeem Anwar (supra), this Court held that once The Uttar Pradesh Judicial Service (Second Amendment) Rules, 2012 mandates for the preparation of a waiting list, the Commission is obliged to prepare a waiting list. Paragraphs 12 to 14 of the said judgement are reproduced herein below:- "12. On the parameters of the Rules in question and in the light of the Government Orders the claim of petitioner is being adverted to. Under The Uttar Pradesh Judicial Service (Second Amendment) Rules, 2012, the Commission is obliged to prepare a final list of selected candidates alongwith wait-list of 10% of existing vacancies in order of their proficiency as disclosed by aggregate of marks finally awarded to each candidate in the written examination and the interview. The Commission, in the present case, has not at all proceeded to prepare the wait-list in consonance with the Rules in question, whereas, requisition has been sent of 125 posts for U.P. Civil Judge (Junior Division) for being appointed as Civil Judge (Junior Division) under U.P. Nyayik Sewa, in this background, after the final selection has been made, then Commission ought to have prepared final list of 125 selected candidates alongwith wait-list of 10% of existing vacancies, in order of their proficiency as disclosed by aggregate of marks finally awarded to each candidate in the written examination and the interview. Law on the subject is clear that wait-listed candidates have no vested right to be appointed except when a selected candidate does not join while the select-list is still operative. See Sri Kant Tripathi Vs. State of U.P. & Others, 2001 (10) SCC 337. Law on the subject is clear that wait-listed candidates have no vested right to be appointed except when a selected candidate does not join while the select-list is still operative. See Sri Kant Tripathi Vs. State of U.P. & Others, 2001 (10) SCC 337. A waiting list prepared by the Commission is to be operative only for the contingency that if any of the selected candidate does not join then the persons from the waiting list could be pushed up and be appointed against the vacancies requisitioned and against which recommendation has already been made by the Commission. The U.P. Judicial Service Rules, 2001 has a peculiar characteristic, inasmuch as, Sub-rule (2) of Rule 21 clearly proceeds to make a mandate that the select list prepared under Sub-rule (3) of Rule 20 shall lapse after all the vacancies advertised or varied after due notification, are filled up, in view of this, the life span of select list has been provided for by the Rules under Sub-rule (2) of Rule 21 and the said select list prepared under Sub-rule (3) of Rule 20 will lapse after all the vacancies advertised or varied after due notification, are filled up and not at all beyond the same. The life of the select list stands determined by the Rules and, in view of this, once the life span of select list stands determined by the Rules, then any executive instructions or policy decision taken by the Commission in the shape of Government Orders dated 31.1.1994 and 15.11.1999 would be of no avail. 13. These Government Orders in question would not at all be applicable in reference of the life span of the select list in question. Once the Rules in question are specific and the law on the subject is clear that in case any executive instructions are running counter to the statutory Rules, then executive instructions should give way to the statutory Rules in question. Apex Court in the case of Ram Ganesh Triapthi Vs. State of U.P. & Others, AIR 1997 SC 1446 has taken the view that any Government Order contrary to rules cannot be enforced rather requires to be ignored. Apex Court in the case of Ram Ganesh Triapthi Vs. State of U.P. & Others, AIR 1997 SC 1446 has taken the view that any Government Order contrary to rules cannot be enforced rather requires to be ignored. The factual situation, that is emerging in the present case, is that life span of select list will continue to remain in operation till all the vacancies advertised or varied after due notification, are filled up and here accepted position is that three vacancies still remain unfilled up as candidates, who have been placed at serial nos. 17, 26 and 52 have not joined the posts in question and as far as candidates at serial nos. 17 and 52 are concerned, their candidature in question has already been cancelled by the State Government and even in reference of candidate placed at serial no. 26, decision is awaited. Even this much fact has been accepted before us that fresh requisition has been sent by the State Government and pursuant to the same fresh advertisement has been issued, but the vacancies referred to in the judgment have been left out and have not been included. Once such is the factual situation and such is the language of the Rules in question, then inevitable conclusion is that in reference of selection and appointment to be made under the U.P. Judicial Service Rules, 2001, as amended up to the date, as against the recommendations, that have been so made, the Commission is under statutory obligation not only to make recommendations of total number of vacancies, that have been requisitioned, but to also prepare 10% of the additional wait-list that would be utilized in the contingency when recommended candidates fail to join their respective posts. 14. Consequently, in the facts of the case, keeping in view the spirit of the Rules in question, as accepted position is that candidates placed at serial nos. 17, 26 and 52 have not joined their respective posts and posts are still lying vacant and in reference of two candidates already decision has been taken by the State Government to cancel their candidature. 17, 26 and 52 have not joined their respective posts and posts are still lying vacant and in reference of two candidates already decision has been taken by the State Government to cancel their candidature. We are conscious of this fact that even in the case of select-list candidates, what to say of a wait-listed candidate the law is well settled that such a candidate has no indefeasible right to claim appointment merely for the reason that his name is included in the select-list as the State is under no legal duty to fill up all or any of the vacancy and it can always be left vacant or unfilled for valid reasons. State Government, in the present case, in the affidavit filed before us has not at all come up with the case, that State Government intends to leave the vacancies requisitioned/advertised vacant. The Commission has also submitted in affidavit filed before this Court that the moment requisition is received from the State Government, needful would be done. Accordingly, in the peculiar characteristic of the case and the Rules holding the field, we proceed to pass an order directing the State Government to forthwith forward the requisite requisition to the Commission and the Commission, thereafter, in its turn, would make necessary recommendations in favour of candidates, who stand in merit, subject to fulfilment of other terms and conditions. The entire exercise be undertaken within next three months from the date of receipt of certified copy of this order.” 29. The Co-ordinate Bench of this Court in the case of Sanjay Kumar (supra) while interpreting the provisions contained in Rule 12 (8) of U.P. Secondary Education Services Selection Board Rules, 1998 held as under:- "The issue raised lies in a narrow ambit. The conduct of recruitment by the Board is regulated by the provisions of the U.P. Secondary Education Services Selection Board Act, 1982 read with Rules 1998. Rule 11 regulates determination of vacancy while Rule 12 provides for procedure for direct recruitment. Sub-Rule 8 of Rule 12 clearly provides that in the case of vacancy on the post of lecturer or teacher L.T. Grade. The select panel shall be larger (but not larger than 25%) of the number of vacancies. Rule 11 regulates determination of vacancy while Rule 12 provides for procedure for direct recruitment. Sub-Rule 8 of Rule 12 clearly provides that in the case of vacancy on the post of lecturer or teacher L.T. Grade. The select panel shall be larger (but not larger than 25%) of the number of vacancies. Rule 12(8) of the Rules 1998 is reproduced hereinafter:- "The Board then, for each category of post, prepare panel of those found most suitable for appointment in order of merit as disclosed by the marks obtained by the after adding the marks obtained under sub-clause (4) or sub-clause (5) above, as the case may be, with the marks obtained in the interview. The panel for the post of Principal or Headmaster shall be prepared institution-wise after giving due regard to the preference given by a candidate, if any, for appointment in a particular institution whereas for the posts in the lecturers and trained graduates grade, it shall be prepared subject-wise and group-wise respectively. If two or more candidates obtain equal marks, the name of the candidate who has higher quality points shall be placed higher in the panel and if the marks obtained in the quality points are also equal, then the name of the candidate who is older in age shall be placed higher. In the panel for the post of Principal or Headmaster, the number of names shall be three times of the number of the vacancy and for the post of teachers in the Lecturers and Trained graduate grade, it shall be larger (but not larger than twenty-five per cent) than the number of vacancies. Practical exigencies like non-availability of notified vacancies would not justify the Board from adopting a procedure which is in derogation of what is laid down by the statutory scheme itself. There is no discretion vested in the commission to provide a panel on the post of teachers in lecturer and L.T. Grade, which may be less than the number of vacancies. There is no discretion vested in the commission to provide a panel on the post of teachers in lecturer and L.T. Grade, which may be less than the number of vacancies. Vacancy itself has been defined under Rule 2(e) of the Rules 1998 in following words:- "Vacancy" means a vacancy arising out as a result of death, retirement, resignation, termination, dismissal or removal of a teacher or creation of new post or appointment or promotion of the incumbent to any higher post in a substantive capacity." Once the vacancy gets notified to the Board it would be possible for the Board not to draw a panel of candidates which is below the number of posts notified to it. The extent of discretion available to the Board is only to increase the number by making it larger than the notified vacancies up to the maximum limit of 25%. It is only to this extent that discretion can be exercised by the Board. However, the vacancy which have already been advertised cannot be reduced by the Board so as to prepare a panel which may be less than the number of notified vacancies." 30. In view of the interpretation given by this Court in various precedents referred to above with respect to identical Rules, this Court is of the view that Rule 15(3) of Rules, 1992 clearly stipulates that the Commission is obliged to draw select panel consisting of names larger than the requisition sent, but not more than 25% of the total post for which requisition had been sent. In such circumstances, the Commission was expected to draw a panel consisting of names above 309 by up to 25% more. 31. Now, so far as the judgement of Apex Court in the case of Karunesh Kumar (supra) is concerned, this Court may note that said judgement is of no help to the respondents since in the said case, the dispute was about selection held on 22.06.2015 on Group-C posts of Gram Panchayat Adhikari. In the said case, the Uttar Pradesh Gram Panchayat Adhikari Service Rules, 1978 (hereinafter referred to as 'Rules, 1978') exclusively dealt with the appointment to the post of Gram Panchayat Adhikari framed under proviso to Article 309 of the Constitution of India. Rule 15(4) of the Rules, 1978 is almost para-materia to Rule 15(3) of Rules, 1992. In the said case, the Uttar Pradesh Gram Panchayat Adhikari Service Rules, 1978 (hereinafter referred to as 'Rules, 1978') exclusively dealt with the appointment to the post of Gram Panchayat Adhikari framed under proviso to Article 309 of the Constitution of India. Rule 15(4) of the Rules, 1978 is almost para-materia to Rule 15(3) of Rules, 1992. In the said case, Karunesh Kumar (original petitioner) approached this Court praying for a direction for being considered on the vacancies arising due to the non-joining of the selected candidates on the post of Gram Panchayat Adhikari single cadre Group-C. The said writ petition was dismissed by a learned Single Judge. However, the judgement of the learned Single Judge dismissing the writ petition was set aside by the Division Bench by placing reliance upon Rule 15(4) of Rules, 1978. 32. The Apex Court while setting aside the judgement of this Court held that after the promulgation of the Uttar Pradesh Subordinate Services Selection Commission Act, 2014 (hereinafter referred to as 'Act, 2014') and The Uttar Pradesh Direct Recruitment to Group 'C' Posts (Mode and Procedure) Rules, 2015 (hereinafter referred to as 'Rules, 2015'), Rules, 1978 have no application in the said selection as the selection was held by the Uttar Pradesh Subordinate Services Selection Commission. It considered the effect of Rule 8(2) of Rules, 2015 which provides that all Group-C posts would come under its purview except those specifically excluded by the Government by way of a notification. The Rules 2015 lay down the procedure for direct recruitment by way of written examination followed by an interview. The Apex Court held that as the selection had been conducted under Rules, 2015 and the petitioner had participated in the same, the petitioner is estopped in law in questioning it. It further held that there is no provision under Rules, 2015 for the preparation of a waiting list, therefore, the Division Bench has erred in allowing the writ petition. 33. It further held that there is no provision under Rules, 2015 for the preparation of a waiting list, therefore, the Division Bench has erred in allowing the writ petition. 33. In the present case, the post in question does not come under the purview of Act, 2014 and Rules, 2015 since the selection has been made by the U.P. Public Service Commission, and further it is not disputed by the respondents that Rules 1992 regulates the selection in the instant case and Rule 15(3) provides for preparation of a waiting list, therefore, the judgement of Apex Court in the case of Karunesh Kumar (supra) is distinguishable on facts and is not applicable in the present case. 34. Now so far as the stand of the respondents that Government Order dated 15.11.1999 prohibits the publication of waiting list in all selections except in cases where selection is made on one post in a single cadre, though it is urged by Sri Ashok Khare, learned Senior Counsel for the petitioner that word ^^,dy laoxksZ ds inksa dks NksM+dj** refers to a selection on the post of one cadre which means that prohibition would not apply in cases where selection is made on the number of posts in one cadre, but said submission of Sri Ashok Khare runs counter to the judgement of Apex Court in the case of Kamlesh Kumar (supra) wherein Apex Court in paragraph 28 while interpreting the Government Order dated 15.11.1999 held as under:- "28. Much reliance has been made on the Government Order passed on 15.11.1999. The said order is very clear on two counts. It speaks of the role being played by the Public Service Commission, and dispensing with the waiting-list except in case of selection to a single post. What is important to be noted is the selection and that too for a single post. It would only mean that selection of an individual to a post, which cannot be interpreted to mean a particular category of post or a single cadre post, as contended by the counsel for the Respondents. The object is very clear that the exercise done in selecting a suitable candidate shall not go waste if that person is not actually selected for any reason, in which case the next in line would get in. The object is very clear that the exercise done in selecting a suitable candidate shall not go waste if that person is not actually selected for any reason, in which case the next in line would get in. Otherwise, the entire process would go to waste, making the recruiting agency to redo it all over for a single post." 35. Therefore, said submission Sri Ashok Khare is devoid of merit. However, this Court finds substance in the submission of Sri Ashok Khare that Government Order cannot override the Rules, 1992, and as Rule 15(3) stipulates for publication of a waiting list, the Commission should have complied with the Rule 15(3) while drawing panel of selected candidates. 36. In this respect, it would be apt to reproduce paragraph 29 of the judgement of the Apex Court in the case of S.K. Nausad Rahman:- "29. Fifth, where there is a conflict between executive instructions and Rules framed under Article 309, the rules must prevail. In the event of a conflict between the Rules framed under Article 309 and a law made by the appropriate legislature, the law prevails. Where the rules are skeletal or in a situation when there is a gap in the rules, executive instructions can supplement what is stated in the rules." 37. Reference may also be had to paragraph 12 of the judgement of this Court in the case of Nadeem Anwar (supra) wherein this court has held that a Government Order contrary to Rules cannot be enforced and has to be ignored. 38. Now, coming to the last submission of learned counsel for the respondents as the period of the select list is one year and one year period has expired, therefore, no such direction as sought by the petitioner can be issued. In this respect, it has been pointed out by Sri Ashok Khare that the period of one year shall be reckoned from the date of the last requisition. He further submits that the contingency to appoint from the waiting list will arise only after the candidates to whom offer of appointment was made did not join. In the instant case, the last appointment order is dated 21.04.2022 and the writ petition has been filed before the expiry of one year from the last appointment order dated 21.04.2022. 39. He further submits that the contingency to appoint from the waiting list will arise only after the candidates to whom offer of appointment was made did not join. In the instant case, the last appointment order is dated 21.04.2022 and the writ petition has been filed before the expiry of one year from the last appointment order dated 21.04.2022. 39. The Apex Court in the case of Sheo Shyam (supra) held that the validity of the period of the waiting list should be computed from the date of the last requisition sent and not from the date of the first requisition. In the instant case, the appointment letters were issued on 21.04.2022, and the last appointment letter was dated 23.03.2023, which is on page 57 of the short counter affidavit dated 11.04.2023, therefore, the contention of respondents with regard to the lapse of select list is also misconceived in view of the judgement of Apex Court in the case of Sheo Shyam (supra). 40. It is also pertinent to note that as per the averment made in paragraph 8 of the short counter affidavit dated 03.05.2023, the requisition has been sent for 34 vacant posts of Block Education Officer to the Commission by Director's letter dated 25.02.2022. The record reveals that appointment letters have been issued to the candidates in reference to selection under advertisement No.A-4/E-1/2019 on 21.04.2022 and 23.03.2023 after the requisition letter dated 25.02.2022 has been sent by the Director for 34 posts. So the stand of the respondent that the petitioner can not be adjusted on any vacant post since requisition has been sent for vacant posts is belied in view of the fact that the appointment letters have been issued after the requisition letter dated 25.02.2022 has been sent by the Director to the commission. It is also pertinent to note that the stand of the respondents that selection has been made on all posts is contrary to the record when it is admitted in paragraph 13 of the short counter affidavit dated 11.04.2023 that three general candidates have not submitted joining meaning thereby three posts are lying vacant. 41. It is also pertinent to note that the stand of the respondents that selection has been made on all posts is contrary to the record when it is admitted in paragraph 13 of the short counter affidavit dated 11.04.2023 that three general candidates have not submitted joining meaning thereby three posts are lying vacant. 41. This Court is also conscious of the fact that the law is well settled that a selected candidate has no indefeasible right to claim appointment merely for the reason that his/her name is included in the select list as the State is under no legal duty to fill up all vacancies and State can decide for valid reasons not to fill up the said vacancies. 42. In the present case, it is evident from the facts, detailed above, that the Commission had made recommendations in piecemeal and the last appointment letter with respect to recommendations was made on 23.03.2023. In the present case, the result of selection was declared on 30.01.2021. The respondents are issuing appointment letters to the candidates even after more than two years from the date of declaration of the result. 43. The State-respondent is expected to act fairly and in the spirit of relevant rules. In the counter affidavit, the respondents have not disclosed any valid reason or its intent for not filling up the three vacancies that remained vacant due to the non-joining of selected candidates. 44. Therefore, for the reasons given above, this court is of the view that the action of the respondents in not preparing waiting list in compliance with Rule 15(3) of Rules 1992 is arbitrary and against the spirit of the said Rule. Consequently, the writ petition is allowed and a writ of mandamus is issued to the Commission to prepare a waiting list in compliance with Rule 15(3) of Rules, 1992, and if the petitioner is found eligible and comes within the merit list, she may be considered for appointment, if she otherwise fulfills all other conditions for appointment. There shall be no order as to cost.