By the Court.—Heard Shri Anil Kumar Srivastava, learned counsel for the petitioner at great length, Shri V.P. Varshney, learned counsel for the U.P. Public Service Commission assisted by Shri Yogendra Kumar Yadav and learned Standing Counsel.

2. The petitioner by means of the present petition filed under Article 226 of the Constitution has sought the following relief :

“(i) Issue a writ, order or direction in the nature of mandamus directing the respondents to treat the petitioner selectee and to provide the appointment on the post in question.

(ii) Issue a writ, order or direction in the nature of mandamus directing the respondents to pay the salary to the petitioner according to law with all emoluments month to month.

(iii) Issue any other writ, relief to which this Hon’ble Court may deem fit and proper may be awarded in favour of petitioner.”

3. The facts which are not disputed, as apparent from the record are that in 1989 U.P. Public Service Commission published an advertisement for making recruitment to the post of Homoeopathic Medical Officers inviting applications from the recognized Degree and Diploma Holders in Homeopathy. It appears that the aforesaid advertisement also provided that the Degree Holders shall be given preference in making selection over the Diploma Holders. The said condition was challenged in some of the writ petitions. In Dr. Sheo Narayan Singh and others v. State of U.P. and others, 1996 (3) ESC 186, a Division Bench of this Court held that the said preference is valid and the Degree Holders can be given preference over to the Diploma Holders. The selection was finalized and the result/select list was declared on 16th September, 1996 containing names of 84 candidates. The final selection was challenged in several writ petitions before this Court at Allahabad as well as at Lucknow. Writ Petition No. 34 of 1996 (SB) (Dr. Triloki Singh v. State of U.P. and others) filed before the Lucknow Bench of this Court. The Division Bench on 9th January, 1996 granted time to the respondents to file counter-affidavit and observed that the apponitment made, if any, shall be subject to the further orders of this Court. Some of the writ petitions were filed at Allahabad, namely, writ petition No. 9653 of 1996 (Dr. Jagat Prakash and another v. State of U.P. and others) and writ petition No. 9086 of 1997 (Dr. Arun Kumar Saxena v. State of U.P. and others). Both the writ petitions filed at Allahabad were dismissed by a Division Bench on 19th March, 2002 on the ground that the petitioners have challenged selection of 1989 without impleading the persons who have been selected and they are necessary parties and, therefore, in the absence of such persons, the writ petitions challenging the selection is not maintainable. It is submitted by the learned counsel for the petitioner that in writ petition No. 9653 of 1996, he has filed recall application which is pending.

4. However, so far as the judgment of this Court in Writ Petition No. 9086 of 1997 is concerned, the same has attained finality as neither any application for recall of such order is pending before this Court nor we are informed that any appeal was taken before the Apex Court.

5. In the meantime, one more writ petition i.e. No. 2292 of 1997 (Dr. Yogendra Pratap Singh and others v. State of U.P. and others) filed by some persons who were holding degree in Homeopathy came up before this Court complaining that some of the persons who were Diploma Holders were also selected though the advertisement provided for preference to the Degree Holders, and the petitioner in that writ petition being Degree Holder was not selected though he was entitled for preference. This Court vide its judgment dated 31st January, 2001 allowed the writ petition observing that since the preference to Degree Holders was upheld by this Court in the case of Dr. Sheo Narain Singh (supra), therefore, it was incumbent upon the Commission to act according to the said condition of advertisement an