S.R Singh, J.:— The petition seeks quashing of the letter No. 2115.C-3/97-98 dated 28.6.2000 issued by the U.P Public Service Commission, Allahabad and a direction to the third respondent to forthwith forward four additional names from the waiting list prepared on the basis of Assistant Prosecuting Officer Examination, 1996 in pursuance of the request made by the State Government vide communication dated 2.2.2000 and appropriate super-added with the direction to respondent Nos. 1 to 4 to forthwith grant appointments to four additional wait listed candidates immediately after receipt of such names from the U.P Public Service Commission.
2. We have heard Sri Ashok Khare, Senior Advocate for the petitioner and Sri S.K Singh, learned counsel appearing for the U.P Public Service Commission and Standing Counsel appearing for the respondents 1 and 2.
3. Petitioner appeared in Assistant Prosecuting Officer Examination, 1996 result of which was declared on 27.2.1998 Total number of vacancies for which the examination was held was 99 and equal number of candidates were recommended by the U.P Public Service Commission for appointment. It appears that seven of the recommended candidates did not join but the State Government sent requisition on 27.7.1999 only for three additional names out of the candidates who appeared in Assistant Prosecuting Officer Examination, 1996. The U.P Public Service Commission admittedly forwarded the names of three additional names on 20.10.1999 No reason has been disclosed as to why the Government requisitioned only three additional names whereas seven candidates had not joined pursuant to the recommendation made by the Commission. The candidature of the four candidates was cancelled on 19.1.2000 The State Government vide letter dated 2.2.2000 requested the Commission to forward four additional names. The Commission declined vide letter dated 28.6.2000 The Commission, it appears, has turned down the request of the State Government on the ground that no names could be sent beyond the period of one year from the date of the recommendation of the last candidate which was done on 20.1.1999
4. It has been submitted by Sri Ashok Khare, Senior Advocate appearing for the petitioner that the claim of the candidate next in order of merit arose for consideration only after the candidature of four candidates came to be cancelled by the State Government on 19.1.2000 Sri S.K Singh, learned counsel appearing for the Commission submitted that Assistant Prosecuting Officer Examination in the present case was held in the year 1996 and Assistant Prosecuting Officer Examination, 1997 has in the meantime already taken place and, therefore, in view of the law laid down by the Supreme Court in State of U.P v. Rafiquddin . AIR 1988 SC 162., no direction can be issued to the Commission to forward the names of the wait-listed candidates of Assistant Prosecuting Officers Examination, 1996.
5. We have given our thoughtful consideration to the submissions made across the Bar. In Rafiquddin's case (supra) it has been held in para 16 of the report as under :
“In this context, it is necessary to consider as to how long the list of candidates for a particular examination can be utilized for appointment. There is no express provision in the Rules as to for what period the list prepared under Rule 19 can be utilized for making appointment to the service. In the absence of any provision in the Rules a reasonable period must be followed during which the appointment on the basis of the result of a particular examination should be made. The State Government and the Commission had announced 85 vacancies for being filled up through the competitive examination of 1970. In normal course, 85 vacancies could be filled on the basis of the result of the competitive examination of 1970 but if all the vacancies could not be filled up on account of non-availability of suitable candidates, the appointment to the remaining vacancies could be made on the basis of the result of the subsequent competitive examination. The unfilled vacancies of 1970 examination could not be filled after 5 years as subsequent competitive examinations of the year 1972 and of the year 1973 had taken place and the results had been declared. The list prepared by the Commission on the basis of the competitive examination of a particular year could be utilized by the Government for making appointment to the service before the declaration of the result of the subsequent examination. If selected candidates are available for appointment on the basis of the competitive examinations of subsequent years, it would be unreasonable and unjust to revise the list of earlier examination by changing norms to fill up the vacancies as that would adversely affect the right of those selected at the subsequent examination in matters relating to their seniority under Rule 22. The 1970 examination could not be utilized as a perennial source or inexhaustible reservoir for making appointments indefinitely. The result of a particular examination must come to an end at some point of time, like a “dead ball” in cricket. It could not be kept alive for years to come for making appointments. The practice of revising the list prepared by the Commission under Rule 19 at the behest of the Government by lowering down the standards and norms fixed by the Commission enable appointment of unsuccessful candidates is subversive of rule of law. This practice is fraught with dangers of favouritism and nepotism and it would open back door entry to the service. We are, therefore of the opinion that once the result of the subsequent examination of 1972 was declared, the Commission could not revise the list of approved candidates of 1970 examination prepared by it under Rule 19 at the behest of the Government by lowering down the standard fixed by it.”
6. We have given our thoughtful consideration to the ratio of Rafiquddin (supra). It is well settled that everything said in a decision does not constitute as a precedent and a decision has to be considered in the context in which it was rendered as held by the Apex Court in State Of Punjab v. Baldev Singh. . AIR 1999 SC 2378.. In Rafiquddin's case the list prepared in the earlier examination was sought to be utilised by the Government lowering down the standards and norms fixed by the Commission to enable appointment of unsuccessful candidates. The facts of the present case are entirely different. In the instant case seven candidates included in the select list dated 20.1.1999 though offered appointments did not join. The State Government was under an obligation to cancel the names of seven candidates who did not join and call for equal number of candidates but instead it cancelled the candidatures of only three candidates namely Shri Shahanashah Alam, Km. Manorama and Shri Prem Singh on account of their non-joining and by letter dated 27.7.1999 called for three additional names from the waiting list for appointment. The U.P Public Service Commission by letter dated 20.10.1999 forwarded four additional names sought for by the State Government vide communication dated 27.7.1999 The State Government, however, subsequently cancelled the candidatures of remaining four candidates namely S/Sri Prem Narain, Shiv Mangal, Manoj Kumar Agarwal and Pranesh Kumar Pran on account of non-joining and by letter dated 2.2.2000 requested the Commission to send four additional names from the waiting list of 1996 examination. Public Service Commission vide letter dated 28.6.2000 has declined to forward the names on account of the fact that in the meantime Assistant Prosecuting Officer Examination, 1997 held. The petitioners cannot be allowed to suffer due to fault of the respondents. It would appear that the vacancies which arose as a result of cancellation of the candidatures of S/Sri Prem Narain, Shiv Mangal, Manoj Kumar Agarwal and Pranesh Kumar Pran vide State Government's order dated 19.1.2000 were not included in the subsequent examination of 1997. In the peculiar facts and circumstances of the present case, therefore, the ratio of State of U.P v. Rafiquddin, (supra) as extracted above will have no application.
7. In the result the petition succeeds and is allowed. The respondent Public Service Commission shall send four additional names from the waiting list of Assistant Prosecuting Officer Examination, 1996 to the State Government within a month and the State Government shall offer appointments to such candidates within another month.
Petition Allowed.