IMPORTANT POINTS
1. A plea as to non-joinder of a party cannot be permitted to be raised for the first time before the Supreme Court if the same was not taken before the High Court and has not occasioned a failure of justice.
2. Merely because select list expired during pendency of litigation relief sought for by a candidate, whose name appeared in select list, cannot be refused.

JUDGMENT

R.C. Lahoti, J.-Leave granted.

2. U.P. Public Service Commission, on a requisition made by High Court of Allahabad, held an examination in the year 1990 for selecting suitable candidates for appointment of Munsifs. The respondent, who belongs to a scheduled caste, also apppeared in the written examination and was declared having passed the same. He was also called for an oral interview on 17.10.1994. Result of the selection was declared on 25.11.1994. 22 seats reserved for scheduled caste candidates. The name of the respondent did not figure in the list of successful candidates. The respondent had secured 432 out of 950 marks. The last two candidates appearing in the list of successful candidates belonging to the scheduled caste category were Shambhu Nath and Rahul Kumar Katyal who had secured 433/950 marks each.

3. It appears that in the list of candidates belonging to the general category there were several candidates who had secured an aggregate of 522 marks each. The practice then followed by the Public Service Commission was that if two or more than two candidates had obtained the same marks then while determining their position inter se in the list of selected candidates they will be so arranged as to place the candidate who had obtained higher marks in the written examination above the candidate obtaining lesser marks in the written examination and if the number of marks obtained in the written examination and interview were equal then the older in age will be kept above the person younger in age. One Avinash Narain Pandey, a candidate belonging to the general category filed a writ petition challenging the validity of the procedure so adopted for determining the order of merit in the select list. The petition was registered as W.P. No. 5127 of 1995. The High Court allowed the writ petition and directed that the order of merit shall be arranged by giving weightage to the marks secured by the candidates at the interview. This resulted in altering the order of merit and to some extent the list of successful candidates belonging to the general category. The directions issued by the High Court were applied by the authorities for finalising after revising the list of successful candidates of scheduled caste category as also for determining their order of merit inter se. Such revised list of successful candidates was finalised by U.P.P.S.C. in the month of November, 1996.

4. From out of the list of successful candidates belonging to the scheduled caste category all excepting one Narendra Pratap Singh joined the service. In the month of October, 1997 the respondent filed a writ petition before the High Court seeking a direction to the State of Uttar Pradesh to offer the vacancy created by non-joining of Narendra Pratap Singh to the respondent.

5. Before the High Court the claim of the respondent was contested by the State of Uttar Pradesh on two grounds only. It was submitted, firstly, that if one vacancy was to be filled then one Chandan Lal whose name figured above the respondent should have to be offered the post and not the respondent as Chandan Lal was placed at serial No. 1 in the waiting list and above the respondent, Ram Swarup Saroj. Next it was submitted that the concurrence of the High Court was sought for by the U.P. Government vide its letter dated 13th May, 1997 for filling the vacancy caused by non-joining of Narendra Pratap Singh but the High Court did not agree with the proposal made by the State Government and therefore the vacancy could not be filled.

6. The Division Bench of the High Court having heard the learned counsel for the parties and keeping in view the facts placed before it formed an opinion that it was not necessary to enter in the controversy whether Chandan Lal or the respondent, Ram Swarup Saroj would be entitled to be appointed in one vacancy available in the scheduled caste category; it would serve the interest of justice if the respondents were directed to fill in the vacancy available in