JUDGMENT : MANOJ KUMAR TIWARI, J. By means of this writ petition, petitioner has sought the following substantive reliefs: “(i) issue a writ, order or direction in the nature of mandamus holding and directing that the inaction on the part of the State Govt. in granting appointment to the petitioner on the post of Assistant Conservator of Forest is unjust and improper. (i) a issue a writ, order or direction in the nature of certiorari calling for the records and quashing the annexure-12 order dated 12.07.2023 issued on behalf of the 1st respondent. (ii) issue a writ, order or direction in the nature of mandamus directing the State Govt. (respondent no. 1) to issue appointment order in favour of the petitioner against the vacancy of the post of ACF that remained unfilled in the ACF Examination 2019. (iii) issue a writ, order or direction in the nature of prohibition restraining the State Govt. from carrying forward and supplying the unfilled vacancy of Assistant Conservator of Forest requisitioned to the Commission for the ACF Examination 2019 during the pendency of the present writ petition.” 2. Petitioner responded to an advertisement dated 30.07.2019 issued by Uttarakhand Public Service Commission (hereinafter referred to as ‘the Commission’). By the said advertisement, 45 vacancies on direct recruitment quota post of Assistant Conservator of Forests (for short ‘ACF’) were notified. 3. Petitioner participated in the selection process consisting of written examination, interview and physical fitness test, which was held in 2021. On 06.12.2021, two select lists were issued by the Commission, whereby total 51 candidates were recommended for appointment. In the first list, names of 43 successful candidates were included, and in the second list, names of 8 successful candidates were included, in which, petitioner was placed at Sl. No. 1. Appointment was offered to all 43 candidates, whose names were included in the first select list dated 06.12.2021, and petitioner is next in order of merit after the last general category candidate, who was appointed. 4. As per relevant recruitment Rules, namely, Uttarakhand State Forest Service Rules, 2017, more names than number of vacancies are required to be recommended by the Commission (but not more than 25% of the advertised vacancies). 4. As per relevant recruitment Rules, namely, Uttarakhand State Forest Service Rules, 2017, more names than number of vacancies are required to be recommended by the Commission (but not more than 25% of the advertised vacancies). The relevant provision of the Rules is extracted below:- “16(8) If the preferential qualification of the candidates are equal, the name of the candidate senior in age shall be placed higher in the list and if the age of the candidates are also equal than the names shall be placed in alphabetical order. The number of name in the list shall more than the vacancies (but not more than 25%). The commission shall forward the list of selected candidates to the appointing authority.” 5. It is not in dispute that one General Category candidate, who had applied against unreserved vacancy, namely, Mr. Dipesh Kapil did not accept the appointment on the post of ACF, offered to him, as he was selected and appointed in Indian Forest Service. Name of Mr. Dipesh Kapil figured at Sl. No. 13 in the first select list, issued on 06.12.2021. 6. Petitioner staked claim for appointment against vacancy, which could not be filled, on account of Mr. Dipesh Kapil not turning up for joining. 7. It is not in dispute that petitioner had also applied against an unreserved vacancy, therefore, he asserted that the unreserved vacancy, against which Mr. Dipesh Kapil was selected/recommended, should be offered to him. Since petitioner’s claim was not considered by the Competent Authority, therefore, he filed this writ petition seeking a direction to the State Government to appoint him against such unfilled vacancy. 8. Before filing writ petition, petitioner had submitted a representation on 03.04.2023 for his appointment. The said representation was rejected by the Deputy Secretary, Forest Department, vide order dated 12.07.2023, which was also challenged by amending the writ petition. 9. As per record, on 20.05.2022 names of two more candidates, namely, Mr. Vibhu (General Category) and Mr. Rajat Kapil (EWS Category) were recommended by the Commission for appointment to the State Government. These two candidates joined induction course in Central Academy for State Forest Service, Dehradun in the month of August, 2022; while, candidates earlier recommended, joined training in another Academy in the month of April, 2022. 10. Vibhu (General Category) and Mr. Rajat Kapil (EWS Category) were recommended by the Commission for appointment to the State Government. These two candidates joined induction course in Central Academy for State Forest Service, Dehradun in the month of August, 2022; while, candidates earlier recommended, joined training in another Academy in the month of April, 2022. 10. State Government in its counter affidavit has referred to a Government Order dated 30.10.2006, issued by its Personnel Department, for contending that the select list remains valid only for one year from the date of its receipt by the Appointing Authority, and petitioner staked claim for appointment by making representation one year after the date of issuance of select list. Paragraph no. 7 of the counter affidavit filed by Mr. Satyaprakash Singh, Deputy Secretary, Forest Department on behalf of respondent no. 1 is extracted below:- “7. That in reply to the contents of para-4 of the present petition, it is submitted here that the as per the provisions of Government Order 2867/XXX(2)/2006 dated 30.10.2006, issued by the Human Resource Department, Government of Uttarakhand, the following is provided: “(1) The selection list of candidates selected on the basis of competitive examinations and selections conducted by the Public Service Commission will not be used after one year from the date of receipt of such selection list. (2) After the expiry of one year, such vacancies will be carried forward and included in the next selection year.” Since the petitioner had filed the present writ petition, praying the selection from the additional selection list therefore, the present case is covered by the above mentioned conditions. Copy of the said Government Order is annexed by the petitioner as Annexure-2. The representation dated 03.4.2023 filed by the petitioner after one year from issuance of selection list, thus, as per the first paragraph of the above mentioned Government Order No. 2867/XXX(2)/2006 dated 30.10.2006, the said representation is time barred.” 11. Uttarakhand Public Service Commission has also filed counter affidavit stating that it has completed the selection process, and 25% additional select list was sent to the State Government, as per Rule 16(8) of the Recruitment Rules, on 06.12.2021. In paragraph no. 12 of the said counter affidavit, Commission has admitted that names of two more candidates were recommended for appointment, vide letter dated 20.05.2022. 12. Heard learned counsel for the parties and perused the record. 13. In paragraph no. 12 of the said counter affidavit, Commission has admitted that names of two more candidates were recommended for appointment, vide letter dated 20.05.2022. 12. Heard learned counsel for the parties and perused the record. 13. It is contended by learned counsel for petitioner that Government Order dated 30.10.2006, relied by respondent no. 1, only clarifies the earlier Government Order, issued on 26.08.2005. He has drawn our attention to the opening paragraph of the Government Order dated 30.10.2006, which supports the contention made on behalf of petitioner. English translation of the earlier Government Order dated 26.08.2005, as provided by petitioner, is reproduced below: “Uttarakhand Shashan Personnel Section-2 No. 2607/XXX(2)/2005 Dehradun 26 August, 2005 Office Memo “The following decisions have been taken by the Govt. regarding offer of appointment to the selected candidates on the basis of competitive examinations conducted by the Public Service Commission and other selections: (1) Requisition be sent to the Public Service Commission only after ensuring the correct computation of the vacancies arising in a particular selection year. No change be made as far as possible in the number of vacancies after the requisition is made. (2) On receipt of the recommendation regarding the selected candidates they must be given joining except in the matters where the concerned department/institution/organization has completely been abolished or some otherwise orders have been passed by a Court. In the event of the concerned department/ institution/ organization being abolished or otherwise order by a Court, the Commission be forthwith informed of the decision being taken to abolish the requisitioned posts or change in the number of vacancies. (3) Appointment order be ensured to be issued by the concerned departments within one month of the receipt of recommendations/ allotments and the candidate be initially given a maximum of one month’s time for joining, the extension whereof for a period of one month can be considered in the unavoidable circumstances (4) While cancelling the candidature of the candidates not joining within the prescribed period, the vacancies so arising be carried forward for the next selection year. (5) The select list be used only against the vacancies of the selection year for which requisition has been sent/selection has been made. (6) Except the single cadre posts, in all combined services and other selections waiting list shall not be prepared nor reshuffling of any kind be made. (5) The select list be used only against the vacancies of the selection year for which requisition has been sent/selection has been made. (6) Except the single cadre posts, in all combined services and other selections waiting list shall not be prepared nor reshuffling of any kind be made. 2- The aforesaid directions be strictly be followed at every level.” 14. Paragraph nos. 3 to 6 of the above quoted Government Order, are relevant for deciding the issue, involved in the present writ petition. Paragraph no. 3 thereof provides that appointment order has to be issued to the selected candidates within one month from the date of receiving recommendation from the Commission and further that joining time of maximum one month has to be given to the selected candidate, to whom appointment is offered, which may be extended for another month in exceptional circumstances. Paragraph no. 4 provides that appointment offered to a selected candidate, who does not join duties within stipulated time has to be cancelled and the resultant vacancy has to be carried forward for the next selection year. Paragraph no. 5 of the said Government Order provides that the select list prepared in one selection cannot be used to supply vacancies occurring during subsequent selection year. Paragraph no. 6, however, makes it clear that in combined selection for more than one category of post, waiting list shall not be prepared, meaning thereby waiting list can be prepared in a case like the present one where selection is made for post of ACF alone. 15. Going by the Government Order dated 26.08.2005, which is not superseded by the Government Order dated 30.10.2006, appointment was to be offered to all selected candidates within one month of receiving the select list. Thus, all selected candidates including Mr. Dipesh Kapil were to be offered appointment in the month of January, 2022, however, this was not done and appointment letters were issued, several months after receiving the select list. 16. In terms of paragraph no. 3 read with paragraph no. 4 of Government Order dated 26.08.2005, it was incumbent upon the State Government to cancel the candidature of Mr. Dipesh Kapil, on his failure to join duties within one month of issuing appointment order to him, however, appointment offered to Mr. Kapil was not cancelled. 17. 16. In terms of paragraph no. 3 read with paragraph no. 4 of Government Order dated 26.08.2005, it was incumbent upon the State Government to cancel the candidature of Mr. Dipesh Kapil, on his failure to join duties within one month of issuing appointment order to him, however, appointment offered to Mr. Kapil was not cancelled. 17. By virtue of Rule 16(8) of the Recruitment Rules, petitioner had a right to be considered for appointment against the vacancy, which could not be filled due to non-joining of Mr. Dipesh Kapil. Such right accrued in favour of petitioner a month after issuance of offer of appointment to Mr. Dipesh Kapil. State Government was under a duty to consider petitioner’s claim for appointment against such unfilled vacancy, which it failed to discharge and petitioner cannot be blamed for delay due to inaction of the State Government in the matter. Petitioner’s right to be considered for appointment crystalised in the month of April, 2022, which was well within validity period of the select list. 18. From the Indian Forest Service Civil List, 2023, issued by Ministry of Environment and Forest, Government of India (Annexure-9 to the writ petition), it is revealed that Mr. Dipesh Kapil joined Indian Forest Service on 29.08.2022. It is not in dispute that select list was issued by the Commission to the State Government on 06.12.2021. The State Government cannot plead ignorance about one vacancy remaining unfilled due to non-joining by Mr. Dipesh Kapil so as to deny petitioner’s accrued right to be considered for appointment. 19. It is well settled that executive instructions issued by the State Government cannot override express provisions contained in statutory Rules. Rule 16(8) of the Recruitment Rules provides that more candidates than the number of vacancies shall be recommended by the Commission (but not more than 25%). This provision has been inserted by the rule maker to deal with a contingency like the present one, where a candidate selected and recommended by the Commission does not turn up for joining. This is to ensure that the functioning in the department does not suffer due to non-joining of a selected candidate and the unfilled vacancy may be filled by taking up a candidate from the waiting list, who is placed immediately below the last selected candidate. This is to ensure that the functioning in the department does not suffer due to non-joining of a selected candidate and the unfilled vacancy may be filled by taking up a candidate from the waiting list, who is placed immediately below the last selected candidate. The fact that petitioner is on top of the waiting list and belongs to General Category is not in dispute. Thus, Government Order dated 30.10.2006 cannot be pressed into service by respondent no. 1 for defeating the statutory right of the petitioner to be considered for appointment against the unfilled vacancy which is available to General category candidate. 20. Petitioner’s representation was rejected vide order dated 12.07.2023. The sole ground taken for rejecting petitioner’s claim is that he submitted representation one year after the date when select list was received by the State Government. In the rejection order, although, Rule 16(8) of the Recruitment Rules has been reproduced, however, there is nothing to indicate that State Government applied its mind to the said statutory provision. A selected/wait listed candidate is under no obligation to make representation for his/her appointment and it is the duty of the Appointing Authority to ascertain whether all selected candidates, who were offered appointment have joined and if not, then offer the unfilled vacancy to the candidate, who is immediately below the last selected candidate. A wait listed candidate will seldom have information about non-joining of a selected candidate and this information is available only to the Appointing Authority. Thus, to blame the petitioner for making representation on 03.04.2023 is not proper. 21. As discussed earlier, State Government did not adhere to the time schedule, indicated in the Government Order dated 26.08.2005, and appointment was offered to the selected candidates after several months of receiving recommendation from the Commission. Petitioner’s right accrued within one month from the date when appointment was offered to Mr. Dipesh Kapil, therefore, petitioner’s claim for appointment was alive when he made the representation. Thus, his claim cannot be defeated on the ground that there was delay on his part, in approaching the authority. 22. Petitioner’s right accrued within one month from the date when appointment was offered to Mr. Dipesh Kapil, therefore, petitioner’s claim for appointment was alive when he made the representation. Thus, his claim cannot be defeated on the ground that there was delay on his part, in approaching the authority. 22. Hon’ble Supreme Court in the case of Manoj Manu and another v. Union of India and others (2013) 12 SCC 171 has held that in a case where selected candidate joins and subsequently resigns, a candidate from the waiting list will not have a right of appointment, however, in a case where out of the recommended candidates, someone does not join at all, then a candidate from the reserved/waiting list will have a right to be considered for appointment. Relevant extract of the said judgment is reproduced below:- “9. It can be clearly inferred from the reading of the aforesaid that it is not the case where any of these persons initially joined as Section Officer and thereafter resigned/left/promoted, etc. thereby creating the vacancies again. Had that been the situation viz. after the vacancy had been filled up, and caused again because of some subsequent event, position would have been different. In that eventuality UPSC would be right in not forwarding the names from the list as there is culmination of the process with the exhaustion of the notified vacancies and vacancies arising thereafter have to be filled up by fresh examination. However, in the instant case, out of 184 persons recommended, six persons did not join at all. In these circumstances when the candidates in reserved list on the basis of examination already held, were available and DoPT had approached UPSC “within a reasonable time” to send the names, we do not see any reason or justification on the part of UPSC not to send the names. 15. This Court in Sandeep Singh v. State of Haryana [ (2002) 10 SCC 549 : 2003 SCC (L&S) 800] commended that the vacancies available should be filled up unless there is any statutory embargo for the same. In Virender S. Hooda v. State of Haryana [ (1999) 3 SCC 696 : 1999 SCC (L&S) 824 : AIR 1999 SC 1701 ] , 12 posts for direct recruitment were available when the advertisement for recruitment was made which was held in the year 1991. In Virender S. Hooda v. State of Haryana [ (1999) 3 SCC 696 : 1999 SCC (L&S) 824 : AIR 1999 SC 1701 ] , 12 posts for direct recruitment were available when the advertisement for recruitment was made which was held in the year 1991. Some of the selected candidates did not join in this batch almost similar to the present case, the Court held that the appellant's case ought to have been considered when some of the candidates (sic vacancies arose) for reasons of the non-appointment of some of the candidates and they ought to have been appointed if they come within the range of selection. 17. We are, therefore, of the opinion in the facts of the present case, the decision of UPSC in forwarding three names against requisition of DoPT for six vacancies was inappropriate. We, accordingly, allow the present appeal, set aside the order of the High Court [Manoj Manu v. Union of India, WP (C) No. 3297 of 2011, decided on 16-5-2011 (Del)] as well as the Tribunal [Manoj Manu v. Deptt. of Personnel and Training, OA No. 3511 of 2010, order dated 29-3-2011 (CAT)] and issue a mandamus to UPSC to forward the names of the next three candidates to DoPT for appointment to the post of Section Officer's grade. They shall get the seniority from the date when Rajesh Kumar Yadav was appointed to the said post. Their pay shall notionally be fixed, without any arrears of the pay and other allowances. No costs.” 23. The object of preparing waiting list and how it is to be operated has been considered by Hon’ble Supreme Court in the case of Gujarat Engineers’ Assn. V. State of Gujarat, reported in (1994) Supp 2 SCC 591. Paragraph no. 8 of the said judgment is reproduced below:- “8. ............. A waiting list prepared in service matters by the competent authority is a list of eligible and qualified candidates who in order of merit are placed below the last selected candidate. How it should operate and what is its nature may be governed by the rules. Usually it is linked with the selection or examination for which it is prepared. A waiting list prepared in service matters by the competent authority is a list of eligible and qualified candidates who in order of merit are placed below the last selected candidate. How it should operate and what is its nature may be governed by the rules. Usually it is linked with the selection or examination for which it is prepared. For instance, if an examination is held say for selecting 10 candidates for 1990 and the competent authority prepares a waiting list then it is in respect of those 10 seats only for which selection or competition was held. Reason for it is that whenever selection is held, except where it is for single post, it is normally held by taking into account not only the number of vacancies existing on the date when advertisement is issued or applications are invited but even those which are likely to arise in future within one year or so due to retirement etc. It is more so where selections are held regularly by the Commission. Such lists are prepared either under the rules or even otherwise mainly to ensure that the working in the office does not suffer if the selected candidates do not join for one or the other reason or the next selection or examination is not held soon. A candidate in the waiting list in the order of merit has a right to claim that he may be appointed if one or the other selected candidate does not join. But once the selected candidates join and no vacancy arises due to resignation etc. or for any other reason within the period the list is to operate under the rules or within reasonable period where no specific period is provided then candidate from the waiting list has no right to claim appointment to any future vacancy which may arise unless the selection was held for it. He has no vested right except to the limited extent, indicated above, or when the appointing authority acts arbitrarily and makes appointment from the waiting list by picking and choosing for extraneous reasons.” 24. In the present case, the Recruitment Rules provide that select list shall contain more names than number of vacancies. He has no vested right except to the limited extent, indicated above, or when the appointing authority acts arbitrarily and makes appointment from the waiting list by picking and choosing for extraneous reasons.” 24. In the present case, the Recruitment Rules provide that select list shall contain more names than number of vacancies. Thus, the intention of rule making authority is clear that, in case any vacancy remains unfilled due to non-joining of selected candidate, then a candidate from wait list may be pushed up and appointed against such unfilled vacancy. In the present case, the exact date on which an appointment was offered to the selected candidates is not known, however appointments appear to have been made in the month of April, 2022. It was incumbent upon the appointing authority to offer appointment to the petitioner one month after offering appointment to Mr. Dipesh Kapil, as he did not turn up for joining within the stipulated time. For a lapse on the part of appointing authority, petitioner cannot be denied the right to be considered for appointment, which has been elevated to the status of fundamental right. The State Government, however, has shifted the blame to petitioner for not staking claim for appointment earlier, as if petitioner was immediately informed when Mr. Dipesh Kapil did not join duties within stipulated time. 25. Even otherwise also, the last recommendation was made by the Commission to the State Government on 20.05.2022 and petitioner’s representation made on 03.04.2023 was within one year. 26. For the reasons recorded above, the impugned order dated 12.7.2023 passed by the State Government is unsustainable, which deserves to be quashed. 27. Accordingly, writ petition is allowed. Impugned order dated 12.7.2023 is quashed and set aside. Secretary (Forest), Government of Uttarakhand is directed to offer appointment to petitioner on the post of Assistant Conservator of Forest, within three weeks from the date of production of certified copy of this order.