Bihari Lal Rastogi vs State Of U.P. Through Secy. Transport Deptt. Lko. & Ors.

Hon'Ble Irshad Ali, J.

Heard Mrs. Radhika Singh, learned counsel for the petitioner and learned Standing Counsel for the respondent – State.

The present writ petition has been filed on following prayers:

Factual matrix of the case is that opposite party no.2, namely, the Transport Commissioner, Uttar Pradesh, published an advertisement dated 10.08.2004 in the daily newspaper Dainik Jagran on 12.08.2004, inviting applications from eligible candidates for appointment against the existing as well as forthcoming vacancies on the post of Enforcement Constable. Pursuant to the said advertisement, the petitioner submitted his candidature and appeared before the departmental Selection Committee for interview and physical fitness test on 18.01.2005. The result of the selection process was declared in the last week of March, 2005.

It is further pleaded that the selection list was prepared on 24.03.2005 and was displayed on the notice board on 28.03.2005. The name of the petitioner figured at Serial No.54 in the select list of candidates belonging to the Other Backward Classes (OBC) category. According to the petitioner, at the time of issuance of the advertisement dated 10.08.2004, there were 50 posts of Enforcement Constable earmarked for the OBC category. By the time the final result was declared, five additional vacancies were stated to have arisen and, accordingly, the select list contained the names of 55 candidates. It is also the case of the petitioner that there was no provision for preparation of a waiting list.

The petitioner has further pleaded that, prior to the aforesaid selection, the Government of Uttar Pradesh, vide Government Order No.2118/Thirty-3-2003-3B/2002 dated 18.07.2003, had created 114 additional posts of Enforcement Constable. According to the petitioner, the said additional posts continued to remain vacant and available for appointment.

It is stated that after declaration of the select list, the petitioner submitted a representation dated 14.10.2005, followed by reminders dated 02.12.2005 and 27.12.2005, requesting the authorities to consider his candidature for appointment to the post of Enforcement Constable against the vacancies available under the Backward Class/OBC reservation quota. According to the petitioner, despite the representations and reminders, no appointment was offered to him.

The petitioner has further stated that, in February, 2006, one Bal Govind Upadhyay instituted Writ Petition No.1642 (S/S) of 2006 before this Court seeking a direction for his appointment. Thereafter, the opposite parties issued a fresh advertisement dated 11.03.2006 inviting applications for appointment to the post of Enforcement Constable. The said subsequent advertisement was challenged by Bal Govind Upadhyay by instituting Writ Petition No.2148 of 2006.

It is further pleaded that Imamuddin, who was also a selected candidate from the same select list in which the petitioner had been selected, instituted Writ Petition No.6809 (S/S) of 2005 as well as Writ Petition No.2345 of 2006, seeking relief for appointment. Both the aforesaid writ petitions were allowed by this Court vide order dated 03.05.2006. By the said order, the respondents were directed to consider the petitioner therein for appointment against the vacancy which was available at the time of the original advertisement on account of the death of one Munish Kumar Pandey. It was further directed that, in case the said vacancy had subsequently been filled up pursuant to a subsequent advertisement, the petitioner therein was to be appointed by creating a supernumerary post of Enforcement Constable. The Court further directed that the appointee would be placed in the seniority list immediately below the candidate placed at Serial No.17 in the select list and that his appointment would carry service benefits from the date on which the other candidates selected pursuant to the same select list had been appointed.

It is the further case of the petitioner that, in order to ascertain the action taken by the authorities on his representations, he submitted an application under the Right to Information Act. During the course thereof, the Additional Transport Commissioner (Enforcement) passed an order dated 02.03.2007 rejecting a representation purportedly dated 09.11.2006. The petitioner asserts that he had never submitted any representation dated 09.11.2006. According to the petitioner, the order dated 02.03.2007 was, therefore, passed on the basis of an incorrect factual premise and reflects non-application of mind on the part of the authority.

It is further pleaded that Writ Petition No.1642 (S/S) of 2006 filed by Bal Govind Upadhyay was also ultimately allowed by this Court and, pursuant thereto, he was granted appointment on 20.08.2009. The petitioner relies upon the said development as being relevant to his claim for similar consideration on the basis of the same selection process.

Thereafter, the petitioner instituted Writ Petition No.6515 of 2008 (S/S) before this Court. The said writ petition was disposed of vide order dated 26.08.2011, whereby the respondents were directed to reconsider the petitioner's case in the light of the judgment rendered by this Court in Writ Petition No.6809 of 2005 (S/S).

Pursuant to the aforesaid order dated 26.08.2011, the petitioner submitted a representation dated 04.04.2012 before the competent authority along with a copy of the order passed by this Court. The said representation was, however, rejected by opposite party no.3 vide order dated 26.11.2012. Aggrieved by the aforesaid rejection and asserting that his claim for appointment had not been considered in accordance with the directions issued by this Court and in the light of the treatment accorded to similarly situated selected candidates, the petitioner has approached this Court by filing the present writ petition.

While entertaining the writ petition, this Court framed following three points for consideration vide order dated 12.08.2026:

At the outset, in answer to the first query framed by this Hon’ble Court, learned counsel for the petitioner submits that the petitioner was placed at Serial No.54 in the select list comprising 55 candidates of the OBC category and, therefore, was admittedly a duly selected candidate forming part of the very same selection process conducted by the respondents. It is submitted that the respondents proceeded to appoint candidates up to Serial No.52, whereas the petitioner and certain other candidates included in the same select list were denied appointment. Thus, the petitioner cannot be treated as a person who was outside or unconnected with the selection process; rather, his candidature stood duly adjudged and included in the select list prepared by the competent authority.

She further submits that the cases of Imamuddin and Bal Govind are directly relevant and have a material bearing upon the petitioner’s claim. Both the said candidates were similarly situated candidates connected with the same selection process and had approached this Hon’ble Court seeking consideration of their claims. Pursuant to the directions issued by this Hon’ble Court, they were granted appointment against vacancies which became available during the relevant selection year. The appointments so granted are relied upon by the petitioner as instances of similarly situated candidates who were considered and appointed against vacancies becoming available during the currency of the relevant selection process.

She submitted that the respondents themselves have admitted that additional names were retained in the merit/select list and that, against the originally advertised vacancies, 52 candidates were ultimately appointed, including two appointments made against vacancies which arose during the relevant period. The aforesaid admission of the respondents assumes considerable significance, as it demonstrates that the respondents themselves recognized and acted upon the principle that vacancies arising during the relevant selection year could be utilized for making appointments from amongst the candidates included in the select list.

She submitted that the appointment of Imamuddin and Bal Govind, therefore, cannot be brushed aside as an isolated or exceptional circumstance. Their appointments demonstrate the manner in which the respondents themselves understood and implemented the recruitment process, namely, that vacancies becoming available during the relevant selection year could be utilized for appointment of candidates from the select list. Once the respondents themselves adopted such course in the cases of similarly situated candidates, the petitioner’s claim was required to be examined on the same basis and in accordance with his merit position.

She submitted that the petitioner’s case, in fact, stands on an even stronger footing. The petitioner belongs to the OBC category and was placed at Serial No.54 in the OBC select list, whereas as many as 30 vacancies of the OBC category had been advertised but remained unfilled. The existence of the aforesaid vacancies was specifically pleaded by the petitioner and constituted a material circumstance directly relevant to the determination of his claim. The respondents were, therefore, under an obligation to examine whether the petitioner could be accommodated against such vacancies in accordance with his merit and the applicable recruitment provisions.

She submitted that particular significance attaches to the earlier order dated 26.08.2011 passed by this Hon’ble Court in Writ Petition No.6515 (S/S) of 2008, whereby the respondents were directed to reconsider the petitioner’s claim in the light of the judgment rendered in the case of Imamuddin Vs. State of U.P. and Others and, in the event a vacancy of the same selection year was available, to consider the petitioner’s claim for appointment. The said order constituted a specific direction requiring the respondents to undertake a meaningful reconsideration of the petitioner’s claim and could not have been complied with by merely reiterating the earlier stand without examining the relevant vacancies and the petitioner’s merit position.

She submitted that, in view of the aforesaid order dated 26.08.2011, the respondents were required first to examine whether vacancies of the relevant selection year were available and thereafter to consider the petitioner’s claim in accordance with his merit position and the applicable rules. However, instead of undertaking such exercise in its proper perspective, the respondents rejected the petitioner’s claim without duly considering the material circumstance that OBC vacancies were available and had remained unfilled. Such non-consideration of a relevant and material fact renders the decision-making process legally unsustainable.

She next submitted that the petitioner is not claiming any preferential treatment or appointment in supersession of a candidate having higher merit. The petitioner’s limited and legitimate claim is that, having been placed at Serial No.54 in the OBC select list, his candidature was required to be considered strictly in accordance with his merit against available OBC vacancies, particularly when the respondents themselves had operated the select list and made appointments against vacancies which arose during the relevant selection year. The petitioner thus seeks only equal and lawful consideration of his candidature and does not seek any relaxation of the applicable rules.

She submitted that the appointment of Imamuddin and Bal Govind, therefore, has to be examined in its proper factual and legal context. Their appointments demonstrate that the respondents themselves treated vacancies arising during the selection year as capable of being utilized for appointment of candidates included in the relevant select list. In the petitioner’s case, there was the additional circumstance of 30 OBC vacancies which had remained unfilled. Consequently, the respondents were required to determine whether the petitioner, being placed at Serial No.54 in the OBC select list, could be accommodated against any such available vacancy in accordance with the applicable rules and his position in the merit list.

So far as the second question framed by this Court is concerned, learned counsel for the petitioner submits that the same goes to the very root of the controversy. The petitioner was placed at Serial No.54 in the OBC select list, whereas 30 OBC vacancies had been advertised on 21.05.2004 but no selection was made against the said vacancies. The existence of these vacancies was, therefore, not an irrelevant or extraneous circumstance; rather, it was a vital fact which the respondents were bound to take into consideration while examining the petitioner’s claim. The respondents could not lawfully disregard the said vacancies without disclosing as to how and against whom such vacancies were subsequently filled or otherwise dealt with.

She submitted that, significantly, the respondents themselves have admitted that the appointments ultimately made were not confined strictly to the original number of vacancies and that 52 candidates were appointed, including two candidates against vacancies which, according to the respondents themselves, had arisen during the relevant period. The aforesaid admission clearly demonstrates that the respondents did, in fact, take into account vacancies arising during the relevant period while operating the select list.

She next submitted that once the respondents accepted and acted upon the principle that vacancies arising during the relevant selection period could be utilized for making appointments from the select list, the petitioner’s claim could not have been rejected without undertaking a corresponding exercise in respect of the available OBC vacancies. The petitioner’s candidature was required to be examined strictly in accordance with his position in the merit list and the applicable rules, rather than being rejected mechanically merely because he stood beyond the initially advertised number of vacancies.

She submitted that the respondents have failed to furnish any satisfactory, cogent or legally sustainable explanation as to why, despite the existence of the aforesaid 30 unfilled OBC vacancies, the petitioner, who was placed at Serial No.54 in the OBC select list, was not considered for appointment. The mere assertion that the petitioner stood beyond the initial 50 advertised vacancies cannot, by itself, constitute a valid answer to the petitioner’s claim, particularly when the respondents themselves had prepared a select list containing candidates beyond the originally advertised vacancies and had subsequently made appointments against vacancies arising during the relevant period.

She further submitted that the petitioner’s claim is fortified by the fact that the respondents themselves prepared a select list containing 55 candidates against 50 advertised OBC vacancies. The inclusion of the petitioner at Serial No.54 was, therefore, neither accidental nor extraneous to the selection process. His candidature was duly considered by the competent authority and was included in the merit/select list prepared by the respondents themselves. Having once included the petitioner in the select list, the respondents were required to consider his candidature in accordance with the governing rules whenever vacancies legitimately became available for operation of the select list.

She submitted that, accordingly, when the existence of the 30 unfilled OBC vacancies is considered conjointly with the petitioner’s position at Serial No.54 in the OBC select list, it becomes evident that the petitioner’s claim required a proper and objective consideration. The respondents were required to undertake an exercise as to the availability and utilization of the vacancies and thereafter determine, in accordance with the applicable rules, whether the petitioner could be appointed against any such vacancy on the basis of his merit position.

Lastly, with regard to the third and final question framed by this Court, learned counsel for the petitioner submits that the advertisement itself contained a stipulation regarding 25% of vacancies arising during the selection year. The said stipulation was evidently incorporated to take care of vacancies which might arise during the relevant selection year and to enable the recruitment process to address such vacancies in accordance with the prescribed mechanism.

She submitted that the respondents themselves placed reliance upon the aforesaid provision in their counter affidavit while explaining the preparation of the select list containing candidates beyond the originally advertised vacancies. Having relied upon the said provision to justify the preparation and operation of the select list, the respondents cannot now adopt a contrary and inconsistent position by ignoring the vacancies which arose during the relevant selection year while considering the petitioner’s claim. The respondents cannot be permitted to approbate and reprobate in respect of the same recruitment provision.

She submitted that, in the present case, the petitioner was placed at Serial No.54 in the OBC select list against the original 50 advertised OBC vacancies. The preparation of a select list containing 55 candidates itself demonstrates that the recruitment process contemplated a mechanism for dealing with vacancies beyond the initially advertised number, including vacancies arising during the relevant selection year. Therefore, the petitioner’s inclusion in the select list was a material circumstance which required consideration while examining his entitlement against subsequent or otherwise available vacancies.

She submitted that once vacancies arose during the selection year, the same were required to be dealt with in accordance with the aforesaid provision contained in the advertisement and the applicable rules. The candidates whose names had been included in the merit/select list were consequently required to be considered according to their inter se merit and category position, subject of course to the statutory and recruitment conditions governing such appointments. The petitioner could not have been excluded from such consideration without assigning a legally sustainable reason.

She next submitted that the respondents, having themselves utilized vacancies arising during the selection year for making appointments in the cases of Imamuddin and Bal Govind, could not adopt a contradictory approach in the petitioner’s case and deny him consideration without first determining the availability and utilization of vacancies and examining the applicability of the 25% provision in its correct perspective. Such inconsistent treatment, particularly in relation to candidates arising from the same selection process, calls for judicial scrutiny and appropriate relief in favour of the petitioner.

She, therefore, submitted that the three questions framed by this Hon’ble Court, when considered cumulatively and in their proper factual and legal perspective, lead to the inevitable conclusion that the petitioner’s claim required consideration in accordance with his merit position and the applicable recruitment provisions. The petitioner was placed at Serial No.54 in the OBC select list; 30 OBC vacancies had remained unfilled; the respondents had themselves utilized vacancies arising during the selection year for making appointments; and the advertisement itself contained a provision contemplating vacancies arising during the selection year. In such circumstances, the petitioner could not have been denied consideration merely on the ground that his serial number was beyond the initial number of advertised vacancies.

On the other hand, learned Standing Counsel for the respondent – State submitted that the writ petition filed by the petitioner is devoid of merit and does not disclose any legally enforceable right in his favour. It is submitted that the representation dated 09.10.2006 submitted by the petitioner was duly considered by the competent authority and was disposed of vide letter dated 03.11.2006. By the said communication, the petitioner was specifically informed that applications submitted by a total number of 6380 candidates were found valid and, after conducting the requisite interviews, the merit list was prepared in accordance with the prescribed procedure. It is further submitted that, apart from the candidates selected against the advertised vacancies, certain additional candidates were placed in the merit list so that, in the event any selected candidate failed to join, did not take over charge, died during the relevant period, or otherwise declined to join service, the resultant vacancy could be filled from amongst the candidates standing higher in merit. However, in the present case, all the selected candidates had joined service during the months of March/April, 2005 and no vacancy in the reserved category of Other Backward Classes remained available after 30.06.2005. Consequently, there was no occasion or vacancy against which the petitioner could have been considered for appointment. The representation of the petitioner was, therefore, rightly rejected by the competent authority.

Learned Standing Counsel further submits that mere inclusion of a candidate's name in a merit list does not confer an indefeasible or vested right to appointment. Appointment can be claimed only against an available vacancy and subject to the applicable recruitment rules and the selection made by the competent authority. In the present case, the petitioner was neither included amongst the finally selected candidates against the advertised vacancies nor was he selected for appointment against any existing post. Thus, in the absence of any vacant post available for appointment, the petitioner cannot claim appointment as a matter of right merely on the basis of his alleged position in the merit list. It is well settled that a select or merit list by itself does not create an absolute right to appointment where no vacancy is available and the competent authority has already exhausted the advertised vacancies.

Learned Standing Counsel submits that the reliance, if any, placed by the petitioner upon the case of Sri Imamuddin is wholly misplaced and misconceived. Sri Imamuddin was not included in the select list of the General Category candidates; rather, his name figured in the merit list of General Category candidates. Subsequently, on account of the death of Sri Munish Kumar Pandey, who was working as Enforcement Constable, one post became vacant prior to 30.06.2005. It was in the aforesaid peculiar factual circumstances that this Hon'ble Court passed an order directing consideration/appointment of Sri Imamuddin. The said order was passed on the basis of the facts and circumstances peculiar to that case and cannot be treated as conferring any automatic right upon the present petitioner. In the case of the petitioner, admittedly, no vacancy of the relevant category became available within the period during which the concerned merit list remained operative and, therefore, the petitioner cannot claim parity with Sri Imamuddin.

Learned Standing Counsel further submits that the recruitment to the post in question is governed by the provisions of the U.P. Transport Department Enforcement Employees Cadre (Group 'D') Service Rules, 1979 and the rights of the petitioner are necessarily required to be examined in the light of the said statutory rules. It is submitted that Rule 30(j) defines the expression “Recruitment Year” as the period of twelve months of a calendar year commencing from the first day of July. Thus, the recruitment process pertaining to a particular recruitment year has to be considered within the framework of the vacancies determined for that recruitment year. The merit list relied upon by the petitioner was not a select list conferring an indefeasible right of appointment and, in any event, its operative period came to an end on 30.06.2005. After expiry of the relevant recruitment year, the petitioner could not claim appointment against vacancies pertaining to a subsequent recruitment year on the strength of the earlier merit list.

Learned Standing Counsel submits that the vacancies against which recruitment is to be undertaken are determined for the relevant recruitment year and the selection process is conducted against such vacancies. In the present case, the recruitment process was initiated in respect of the vacancies determined for the recruitment year 2004-05. The candidates, including Sri Bihari Lal Rastogi, were considered in the said recruitment process against the vacancies determined for that particular recruitment year. Once the vacancies pertaining to the recruitment year 2004-05 stood exhausted and the selected candidates had joined pursuant to the said selection, no candidate from the earlier merit list could claim appointment against vacancies determined subsequently for the recruitment year 2005-06. The petitioner, therefore, cannot seek to carry forward his claim from one recruitment year to another or claim appointment against a vacancy pertaining to a subsequent recruitment year on the basis of a previous selection process.

Learned Standing Counsel, accordingly, submits that the petitioner has failed to establish the existence of any subsisting vacancy against which he could legally claim appointment. The representation dated 09.10.2006 was duly considered and appropriately disposed of by the competent authority vide order/communication dated 03.11.2006 and the reasons communicated therein are consistent with the applicable recruitment framework and the factual position existing on the relevant date. No arbitrariness, illegality or violation of any enforceable right of the petitioner has been demonstrated. The petitioner cannot claim appointment merely on the basis of his alleged position in the merit list, particularly when the advertised vacancies had already been filled and the selected candidates had joined service. The grounds urged by the petitioner, therefore, have no legal or factual force and the writ petition, being devoid of merit, is liable to be dismissed.

I have considered the submissions advanced by learned counsel for the parties and perused the material on record.

Having considered the submissions advanced by learned counsel for the parties, the pleadings available on record and the three questions framed by this Court vide order dated 12.08.2026, this Court finds that the controversy requires examination not merely from the standpoint of whether inclusion of a candidate's name in a select list confers an indefeasible right to appointment, but also from the standpoint of whether the respondents have acted fairly, consistently and in accordance with the recruitment conditions governing the selection in question. The petitioner's claim is founded upon his placement at Serial No.54 in the OBC select list, the alleged availability of 30 unfilled OBC vacancies, the provision contained in the advertisement concerning vacancies arising during the selection year and the appointments granted to Imamuddin and Bal Govind pursuant to orders passed by this Court. These circumstances, taken cumulatively, required a meaningful and objective consideration by the competent authority. The rejection of the petitioner's claim, therefore, must be tested against these material considerations.

The first question framed by this Court concerns the effect of the appointments granted to Imamuddin and Bal Govind and whether the petitioner, whose name figured at Serial No.54 in the OBC select list, is entitled to the benefit of the principle underlying the relief granted to those candidates. The material placed before this Court indicates that Imamuddin was a candidate connected with the same selection process and that, by order dated 03.05.2006 passed in Writ Petition No.6809 (S/S) of 2005 and Writ Petition No.2345 of 2006, this Court directed consideration of his claim against a vacancy which had arisen on account of the death of Munish Kumar Pandey. The Court further provided that, if the vacancy had already been filled pursuant to a subsequent advertisement, consideration of his claim would extend to appointment against a supernumerary post, together with the specified seniority and service benefits. Similarly, Bal Govind Upadhyay was granted appointment on 20.08.2009 pursuant to the orders passed in his writ proceedings. These developments are relevant because they demonstrate that the respondents did not invariably treat the expiry of the original selection exercise or the filling of vacancies under a subsequent recruitment as an absolute bar to relief in every circumstance.

This Court is conscious of the settled principle that mere inclusion of a candidate's name in a select list does not, by itself, confer an indefeasible right to appointment. Equally, however, the said principle does not absolve the recruiting authority of its obligation to act fairly, consider relevant material and apply the governing recruitment provisions consistently. The petitioner's claim cannot be accepted merely because Imamuddin and Bal Govind obtained relief in their respective proceedings; nor can their cases be disregarded solely on the ground that the relief was granted by judicial orders in separate petitions. The proper inquiry is whether the material circumstances underlying those appointments have a bearing upon the petitioner's claim and whether the respondents have lawfully distinguished his case. In the present matter, the petitioner's candidature arose from the same recruitment process, his name was included in the select list and his claim specifically concerns vacancies alleged to have remained unfilled or to have arisen during the relevant selection year. The respondents were, therefore, required to examine the claim in that factual and legal context rather than reject it by a general reference to the absence of an indefeasible right to appointment.

The objection raised by learned Standing Counsel that Imamuddin belonged to the General Category and that his appointment arose from the death of a particular incumbent does not, by itself, furnish a complete answer to the petitioner's claim. The petitioner does not claim that the category, merit position or individual circumstances of Imamuddin must be treated as identical in every respect. His case is that the respondents permitted the select list to be operated in circumstances involving vacancies arising during the relevant period and that the same recruitment framework required an objective examination of his own candidature. The distinction between the category-wise position of a candidate and the legal principle governing the operation of a select list must be maintained. Any appointment to the petitioner would necessarily remain subject to his OBC category, inter se merit, the applicable reservation provisions and the relevant recruitment rules. Nevertheless, the respondents could not avoid examining these aspects merely by asserting that the circumstances of Imamuddin were peculiar to his case.

The subsequent appointment of Bal Govind also assumes significance in the context of the petitioner's contention that candidates associated with the same selection process obtained relief through this Court and were ultimately appointed. The said appointment does not automatically establish that the petitioner must be appointed irrespective of the availability of a lawful vacancy. It does, however, reinforce the necessity of examining whether the petitioner's case was considered in the light of the relevant judicial directions, the recruitment conditions and the actual vacancy position. The principle of equality does not require repetition of an order without examining its legal foundation; equally, it does not permit materially similar claims to be rejected by an unexplained departure from the approach adopted in comparable circumstances. The respondents were, thus, required to record a reasoned determination distinguishing the petitioner's case, if they considered such distinction legally material.

The second question concerns the petitioner's placement at Serial No.54 in the OBC select list and his assertion that 30 OBC vacancies advertised on 21.05.2004 remained unfilled. The petitioner has specifically contended that the original recruitment process contemplated 50 OBC vacancies, that the select list contained 55 candidates and that appointments were made up to Serial No.52, leaving his candidature and that of certain other candidates without appointment. He has further asserted that 30 OBC vacancies remained unfilled. If the said vacancies were indeed available for recruitment under the relevant selection process, their existence would constitute a material circumstance requiring examination of the petitioner's claim according to his merit and category. The authority could not properly dispose of the claim without ascertaining whether those vacancies existed, whether they formed part of the relevant recruitment exercise and whether they remained available for lawful appointment.

The respondents, on the other hand, have asserted that all selected candidates joined during March and April 2005 and that no vacancy in the OBC category remained available after 30.06.2005. They have also stated that additional names were included in the merit list to provide for contingencies such as non-joining, death or refusal by a selected candidate to assume charge. These submissions raise a factual issue that cannot be resolved merely by accepting the respondents' general assertion that the vacancies had been exhausted. The material question is whether the 30 OBC vacancies pleaded by the petitioner were available within the relevant recruitment framework and, if so, how they were dealt with. The respondents were in a position to explain the determination, allocation and utilization of the vacancies through the relevant recruitment records. A conclusion that no vacancy was available required consideration of the petitioner's specific assertion and the material relied upon by the parties. A bare statement that all selected candidates had joined does not, without more, explain the separate assertion concerning the unfilled OBC vacancies.

It is also material that the respondents have acknowledged the preparation of a merit list containing additional candidates and have referred to appointments made against vacancies which arose during the relevant period. The petitioner relies upon the appointment of 52 candidates, including two candidates against vacancies arising during the relevant period, to contend that the respondents themselves considered vacancies beyond the initially advertised number. This circumstance cannot be treated as conclusive proof that every vacancy arising during the relevant period was available for appointment from the same select list. The nature, category, timing and legal basis of each vacancy would still have to be established. Nevertheless, the respondents' own explanation makes it necessary to examine the operation of the select list and the treatment of vacancies in a coherent manner. The petitioner's claim could not be rejected solely on the ground that his serial number was beyond the initial number of advertised posts, without addressing the alleged unfilled vacancies and the recruitment provision relied upon by him.

The third question concerns the stipulation in the advertisement relating to 25% of vacancies arising during the selection year. The petitioner submits that the said stipulation contemplated an increase in the vacancies to be dealt with under the recruitment process and that the respondents themselves relied upon the provision while explaining the preparation of a select list containing names beyond the originally advertised vacancies. The precise effect of this stipulation must be determined in accordance with its actual language and the applicable statutory rules. It cannot be assumed, without examining those provisions, that every vacancy arising during the selection year automatically became available for appointment from the existing select list. Equally, the respondents cannot disregard the stipulation if it governed the selection and the relevant vacancies fell within its scope. The authority was required to determine the applicability of the 25% provision, identify the vacancies covered by it and examine the petitioner's entitlement, if any, in accordance with his merit and category position.

The submission of learned Standing Counsel founded upon Rule 30(j) of the U.P. Transport Department Enforcement Employees Cadre (Group 'D') Service Rules, 1979, defining the recruitment year as a period of twelve months commencing on the first day of July, is also required to be considered in this context. The recruitment year and the period during which a select list may lawfully be operated are relevant considerations. A candidate cannot claim appointment against a vacancy of a subsequent recruitment year merely because his name appeared in a list prepared for an earlier year, unless the applicable rules or a binding judicial direction permit such relief. However, the petitioner's case is not confined to a demand for appointment against an unrelated vacancy arising in a later recruitment year. He specifically relies upon vacancies said to have been available or to have arisen during the relevant selection year and upon the advertisement's provision governing such vacancies. The question, therefore, is whether the respondents correctly identified the relevant recruitment year and properly applied the provision concerning vacancies arising during that period. The mere invocation of Rule 30(j), without addressing the specific vacancies pleaded and the relevant stipulation in the advertisement, does not conclusively resolve the controversy.

This Court also finds significance in the earlier order dated 26.08.2011 passed in Writ Petition No.6515 (S/S) of 2008, whereby the respondents were directed to reconsider the petitioner's case in the light of the judgment rendered in Writ Petition No.6809 of 2005 (S/S), including the question whether a vacancy of the same selection year was available. The direction required a genuine reconsideration of the petitioner's claim in the light of the identified precedent and the relevant vacancy position. Compliance with such a direction cannot be reduced to a formal repetition of the conclusion reached earlier, without addressing the matters that the Court required the authority to examine. The rejection order dated 26.11.2012 was, therefore, required to demonstrate that the petitioner's claim had been considered in the light of the earlier judicial direction, the applicability of the principle in Imamuddin, the position of the petitioner in the OBC select list and the availability of vacancies of the relevant selection year.

The record, as presented in the material before this Court, further indicates that the petitioner had approached the authorities through representations and reminders and had thereafter sought reconsideration pursuant to the order dated 26.08.2011. His representation dated 04.04.2012 was rejected vide order dated 26.11.2012. The petitioner has also questioned the earlier communication dated 02.03.2007 on the ground that it proceeded on the basis of a representation dated 09.11.2006 which, according to him, he had never submitted. In the circumstances, the decisive consideration is whether the competent authority examined the petitioner's actual claim and the relevant material, rather than whether a communication was issued in response to a representation. Administrative disposal of a claim must be substantive and reasoned where the claim involves a specific judicial direction and material questions concerning vacancies and the operation of a select list. A decision which fails to address those questions cannot be sustained merely because the authority has communicated its conclusion.

The Court is mindful of the objection that judicial review cannot be used to compel appointment where no vacancy lawfully exists or where the recruitment rules do not permit appointment from the select list. The relief granted in the present matter must, therefore, remain consistent with the statutory recruitment framework. Nevertheless, the principle that a select list creates no indefeasible right cannot be employed as a substitute for examining a claim founded upon an allegedly available vacancy and a specific direction for reconsideration. The petitioner seeks the benefit of the treatment extended to Imamuddin and Bal Govind, but such claim must be considered subject to the petitioner's own category and merit position and the conditions governing the recruitment. The respondents were not required to appoint the petitioner in disregard of candidates higher in merit or contrary to the reservation rules; they were, however, required to consider his claim fairly and in accordance with the same governing framework.

Upon cumulative consideration of the aforesaid circumstances, this Court finds that the petitioner's claim raises a substantial issue concerning the consistent application of the recruitment conditions, the treatment of vacancies arising during the relevant selection year and compliance with the earlier direction dated 26.08.2011. The petitioner's placement at Serial No.54 in the OBC select list, the alleged availability of 30 unfilled OBC vacancies, the provision concerning 25% of vacancies arising during the selection year and the appointments granted to Imamuddin and Bal Govind were all relevant matters for consideration. The rejection of the petitioner's claim could not lawfully rest only upon the general proposition that inclusion in a select list does not confer an indefeasible right to appointment. The respondents were required to determine the actual vacancy position, apply the relevant recruitment provisions and explain, on legally sustainable grounds, why the petitioner's claim did or did not merit the benefit sought.

In view of the foregoing discussion, this Court is of the considered opinion that the rejection order dated 26.11.2012 cannot be sustained insofar as the petitioner's claim was required to be examined in the light of the earlier judicial direction, the relevant vacancy position and the recruitment provision concerning vacancies arising during the selection year.

The writ petition, accordingly, deserves to be allowed and is hereby allowed. The impugned order dated 26.11.2012 passed by opposite party no.3 is hereby quashed.

The respondents are directed to extend to the petitioner the benefit of the principle underlying the relief granted in the cases of Imamuddin and Bal Govind, subject to the petitioner's OBC category, merit position and the applicable recruitment provisions. The respondents shall determine the petitioner's entitlement against the vacancies of the relevant selection year in accordance with the advertisement and the governing service rules and shall not deny the claim merely on the ground that his name appeared at Serial No.54 in the select list. If, upon such determination, the petitioner is found entitled to appointment, the respondents shall issue the necessary appointment order and extend the consequential service benefits consistent with the treatment accorded to the aforesaid candidates and the directions contained in their respective cases, subject to the applicable rules and the terms of the relevant judicial orders.

The aforesaid exercise shall be completed by the competent authority within a period of three months from the date a certified copy of this judgment is produced before it.

The authority shall pass a reasoned order addressing the petitioner's merit position, the availability and utilization of vacancies of the relevant selection year, the applicability of the 25% provision contained in the advertisement and the relevance of the cases of Imamuddin and Bal Govind.

There shall be no order as to costs.