By the Court.—This Special Appeal has been filed by four appellants who were not party to the writ proceedings. On an application made by them for leave to file the Special Appeal a Division Bench of this Court vide order dated 13.3.2007 granted the said permission and after hearing the parties the appeal was admitted and was directed to be listed for hearing. Accordingly the Special Appeal has been placed before us for final hearing.

2. This Special Appeal is directed against the judgment and order of the Hon’ble Single Judge dated 23.3.2004 passed in Civil Misc. Writ Petition No. 38335 of 1999 connected with Writ Petition No. 8146 of 1994.

3. The facts relevant for deciding the Special Appeal are as follows :

An advertisement was published by the Public Service Commission on 26.12.1987 for the post of Upper Division Assistant in the U.P. Secretariat. The total number of vacancies so advertised were subsequently increased to 167 as per the letter of the State Government dated 19.12.1988. The vacancies were also bifurcated and ear-marked for various categories. There is no dispute in that regard. The written examination in respect of the said advertisement took place in the year 1989 and the select list was notified by the Commission after the said examinations containing name of 149 persons. Thereafter under a letter dated 8.8.1991, the Commission further recommended the name of 9 persons. The total number of candidates recommended by the Commission thus totalled to 154 selectees only. Seventeen candidates who were offered appointment by the State Government out of 154 recommendees did not join. Similarly there were other 13 candidates whose names were not recommended by the Commission due to the reason that their papers were not complete. The State Government vide letter dated 23.12.1991 informed the Commission that another vacancy has been caused due to one person having resigned after joining the post. By means of another letter dated 16.1.1992 the State Government forwarded the details of other candidates who did not join even after being offered appointment from the list of 154 selectees.

4. The Commission is stated to have recommended 41 names in pursuance to the letters received from the State Government. Against one post which was ear-marked for Scheduled Tribe no name was recommended. After appointment was offered to the candidates whose name was included in the list of 41 selectees, there still remained 7 vacancies because of non-joining of the selected candidates. In between the State Government forwarded another letter dated 4.3.1993 requesting the Commission to hold selections by direct recruitment for the batch of 1991 including the 8 vacancies with reference to the Advertisement of 1987 which were to be carried forward.

5. After the aforesaid proceedings had taken place, one Prem Shankar Rai approached this Court by means of Writ Petition No. 8146 of 1994 seeking appointment on the post on the plea that his name was included in the wait list. While the said writ petition was pending before this Court, one Brijesh Kumar Singh and another filed Writ Petition No. 937 (SS) of 1997 before the Lucknow Bench of this Court claiming identical relief as had been prayed for in the writ petition of Prem Shankar Rai namely that their name was included in the wait list and since vacancies were available within one year of the notification of the select list the petitioner should be offered appointment.

6. Writ petition No. 937 (S/S) of 1997 was disposed of with liberty to Brijesh Kumar Singh and another to file a representation before the State Government vide judgment and order dated 31.1.1997. The representation so made by Brijesh Kumar Singh was rejected by the State Government vide order dated 11.3.1997.

7. Not being satisfied by the order of the State Government Brijesh Kumar Singh and one Om Prakash Sharma filed Writ Petition No. 38335 of 1999 before this Court. The writ petition filed by Brijesh Kumar Singh and oth