S.B Sinha, J.— Leave granted. This appeal is directed against a judgment and order dated 1-2-2005 passed by a Division Bench of the Allahabad High Court whereby and whereunder an order dated 1-12-2004 passed by a learned Single Judge of the said Court was modified as also the order dated 3-1-2006 passed by a learned Single Judge of the said High Court dismissing the review application filed by the appellant herein.
2. The basic fact of the matter is not in dispute. An advertisement was issued by the Chief General Manager, U.P (W), Telecom Circle, Dehradun for recruitment to the post of Telecom Technical Assistants (General Central Services) Group C non-gazetted, non-ministerial in the Office of Telecom District Manager, Pilibhit. In the said advertisement, it was specified that there exists five vacancies for the post of General Category candidates, two reserved for the candidates belonging to Other Backward Classes and one for the Scheduled Caste candidates.
3. Indisputably, pursuant to the said advertisement a large number of applications were filed. A Selection Committee was constituted which prepared a select list. It is also beyond any doubt or dispute that names of the respondents herein were placed in the wait list.
4. The results were published on 8-8-2002 which are in the following terms:
“Sl. No.
Roll No.
Name
Date of birth
Caste
Total
Roster
1
14-035
Alok Kumar Rathor
5-7-1978
OBC
724
Gen
2
14-063
Ravi Kumar
16-7-1974
SC
659
Gen
3
14-008
Pradeep Kumar
5-1-1976
OBC
650
Gen
4
14-059
Sanjay Kumar
1-1-1978
OBC
645
OBC
5
14-004
Chandra Pal Singh
12-5-1978
SC
611
SC
6
14-129
Amit Vaish
16-7-1974
OC
611
Gen
7
14-058
Kamlesh Kumar Maurya
2-7-1980
OBC
608
Gen
8
14-112
Prem Pal
2-1-1979
OBC
600
OBC
9
14-085
Abhishek Shukla
1-8-1979
OC
596
Gen
10
14-151
Jitendra Pal Gangwar
21-4-1979
OBC
589
SC”
It is furthermore not in dispute that Shri Pradeep Kumar and Shri Kamlesh Kumar Maurya, whose names appear at Sl. Nos. 3 and 7 at the said select list did not join their posts. The first respondent belongs to General Category candidate whereas the second respondent belongs to Scheduled Castes category candidate.
5. The selected candidates were sent for training for a period of two months. They had, however, been given placement orders only on 29-8-2003.
6. Having come to learn that two of the select list candidates had not joined, the respondents made representations on or about 12-9-2003 and 20-9-2003 respectively. The said representations were, however, rejected only on the premise that there was no provision in the recruitment rules for maintaining such a wait list. The respondents filed a writ petition before the Allahabad High Court praying, inter alia, for the following reliefs:
“Issue a writ, order or direction in the nature of certiorari quashing the impugned letter dated 24-11-2003, issued by the respondents (Annexure 7).
Issue a writ, order or direction in the nature of mandamus directing the respondents to issue appointment letters to the petitioners, in the light of the result declared by the respondents.”
In the affidavit filed on behalf of the appellant herein and affirmed by one Shri B.S Bhandari, it was averred:
“That in reply to the contents of Paras 10, 11 and 12 of the writ petition, it is stated that there is no provision of waiting list by the department.”
7. By reason of a judgment and order dated 1-12-2004, a learned Single Judge of the High Court noticed that most of the averments made in the writ petition had not been traversed and, thus, the same would be deemed to have been admitted. The writ petition was, therefore, allowed, directing:
“In the result, the writ petition stands allowed. The order dated 26-9-2003/24-11-2003 passed on the representation of the petitioner, is quashed. The petitioners would be entitled to be given appointment on the post of Telecom Technical Assistants under Telecom District Manager, Pilibhit in pursuance of the select list dated 5-8-2002. There will be no order as to costs.”
8. An intra-court appeal was preferred thereagainst and by reason of the impugned judgment, the order of the learned Single Judge was modified to the following effect:
“The learned Single Judge has allowed the writ petition vide judgment and order dated 1-12-2004 issuing a direction to the present appellants to appoint Respondents 1 and 2 on the post of Telecom Technical Assistants under Telecom District Manager, Pilibhit, as their names appeared in the waiting list at Sl. Nos. 1 and 2, as two persons from the select list did not join.
The learned Single Judge has held that the present appellants did not file the counter-affidavit in a proper manner and the denial was not in accordance with the mandate of Order 8 Rule 5 of the Code of Civil Procedure. The averments made in the petition were thereafter found to be correct. No interference is required with the judgment and order of the learned Judge except to the extent that the learned Single Judge should not have issued a direction to the appellants to appoint the petitioners straightaway. In our opinion the present appellants should have been directed to consider the candidates whose names appeared in the waiting list against those vacancies.
In view of the above, the impugned judgment and order dated 1-12-2004 is modified to the extent that the present appellants shall consider to fill up the two vacancies which remained unfilled because two selected persons did not join by offering the appointment letters to the respondents who are in the waiting list at Sl. Nos. 1 and 2 within a period of six weeks from today.”
9. As indicated hereinbefore, by an order dated 3-1-2006, the review application filed by the appellants has been dismissed.
10. Mr K.C Kaushik, learned counsel appearing on behalf of the appellant, would contend:
(i) There being no provision in the statutory rules for preparing a select list with wait-listed candidates, the impugned judgment cannot be sustained.
(ii) The life of the panel being one year, it was impermissible for the High Court to direct the appellant to consider the candidatures of the respondents.
11. Mr Navin Chawla, learned counsel appearing on behalf of the respondents, on the other hand, would support the impugned judgment.
12. In their writ petition, the respondents had categorically stated that only on 29-8-2003, the appellant had cleared the names of six persons and were permitted to join. Para 4 of the counter-affidavit, traversing the averments made in Para 7 of the writ petition, reads as under:
“That in reply to the contents of Para 7 of the writ petition it is stated that only eight candidates were selected in merit list and they have been appointed.”
13. In Para 13 of their writ petition, the respondents averred:
“That in this regard, appointments made at other places, wait-listed persons have been given appointment. At one of such place i.e Meerut, one Shri Parvesh Malhotra bearing Roll No. 1880 and Shri Nirmal Singh bearing Roll No. 1575, who were not in the first twenty, but subsequently they have been given appointment being on the wait-listed panel. A copy of the aforesaid result is annexed as Annexure 9 to this writ petition.”
The said averments have been traversed in Para 8 of the affidavit, stating:
“That contents of Para 13 of the writ petition are not correct as stated, hence denied. It is stated that there is no waiting list in Pilibhit.”
14. There cannot, therefore, be any doubt whatsoever that the allegations contained in the writ petition that in all other districts the Selection Committee had prepared a “wait list” and a large number of appointments had been made therefrom were not specifically been denied.
15. The appellant is “State” within the meaning of Article 12 of the Constitution of India. It must have its Law Department. It is, therefore, difficult to conceive that the officers concerned of the Department could not place the factual and legal position before the Court as has been contended before us.
16. Mr Kaushik furthermore contended that one of the vacancies had been earmarked for a handicapped candidate and, thus, it is not possible to comply with the order of the High Court. Such a decision must have been taken only in the year 2003. Such appointment of a handicapped person, indisputably, is dehors the advertisement.
17. We, therefore, do not find any error in the impugned judgments. We are, however, not oblivious of the fact that ordinarily the life of such a panel is one year as has been observed by this Court in Girdhar Kumar Dadhich v. State of Rajasthan (2009) 2 SCC 706, (2009) 2 Scale 98. However, the select list was approved by the appellant only in August 2003 and the respondents having made representations within one year therefrom in our opinion, the said requirement also stands satisfied in the instant case. Moreover, such a question had not ever been raised before the courts below. Had such a question been raised, the respondents could have dealt with the same. (See Amlan Jyoti Borooah v. State of Assam (2009) 3 SCC 227, (2009) 2 Scale 56.)
18. For the reasons aforementioned, we do not find any merit in this appeal. It is dismissed accordingly. As the appellants have already deposited a sum of Rs 20,000 pursuant to this Court's order dated 24-4-2006, we do not make any order as to costs.