The marks obtained in the interview should be considered for determining merit when candidates have equal aggregate marks, as per the Rules of 1944. Additionally, the validity of the select list is one year unless otherwise specified.

( 1 ) BY means of the present writ petition filed under Article 226 of the Constitution of India, the petitioner, Suresh Kumar Singh, seeks a writ, order or direction in the nature of certiorari quashing the order dated 16. 12. 1994, passed by the Controller of Exams, U. P. Public Service commission, Allahabad, respondent No. 3, filed as Annexure-2 to the writ petition as also the appointment of Sri Biodhan, respondent No. 4. He further seeks a writ, order or direction in the nature of certiorari quashing the decision taken by the respondent No. 3 to give placement to Sri biodhan, respondent No. 4 above the petitioner in the select list and to recommend the name of the petitioner for appointment on the post of Naib Tahsildar in the select list of 1979 batch by creating a supernumerary post. Further a writ, order or direction in the nature of mandamus is sought directing the respondent No. 2 (Secretary, Revenue Services, Lucknow) to appoint the petitioner after he receives the recommendation from respondent No. 3 on the post of Naib tahsildar retrospectively and fix his pay notionally from the date his Junior Sri Biodhan, respondent No. 4 was appointed as Naib Tahsildar.

( 2 ) BRIEFLY stated the facts giving rise to the present writ petition are as follows :

"according to the petitioner, he had appeared in the written examination as well as interview conducted by the U. P. Public Service Commission, Allahabad, in the Combined Lower subordinate Services Competitive Examination. 1979. In the Notification No. A-10-E-IV/78-79, at serial No. 20, the total number of 185 posts of Naib Tahsildar were to be filled up out of which 28 were reserved for being filled up from amongst the candidates belonging to the backward class. The petitioner was allotted Roll No. 40686. He gave his first preference for the post of naib Tahsildar and the second preference for the post of Entertainment Tax Inspector. He qualified in the written test. He was called for the interview. He scored 253 marks in the written test and 56 marks in the interview, i. e. , 309 marks. Sri Biodhan, respondent No. 4 obtained 252 marks in the written test and 57 marks in the interview, i. e. , total of 309 marks. However, the petitioner was placed just below the respondent No. 4 by the U. P. Public Service Commission, allahabad. "

( 3 ) THE petitioner made a representation on 15th June, 1984, before the Chairman, U. P. Public service Commission, Allahabad, respondent No. 3, pointing out the anomaly and requesting for correcting the select list and placing him above the respondent No. 4. It may be mentioned here that respondent No. 4 had been posted as Naib Tahsildar in the 1979 batch of selected candidates. He sent a reminder on 23rd June, 1994. When his representation was not decided, he approached this Court by filing Civil Misc. Writ Petition No. 24213 of 1994. However, after the representation was decided on 16th December, 1994, the aforesaid writ petition was dismissed.

( 4 ) I have heard Sri Ashok Khare, learned senior counsel for the petitioner and the learned counsel appearing for the respondents.

( 5 ) LEARNED counsel for the petitioner submitted that the petitioner had obtained more marks in the written test than that was obtained by the respondent No. 4 and the aggregate of total marks of the petitioner and respondent No. 4 in the written test and viva voce (interview) being same, i. e. , 309, the petitioner ought to have been placed above the respondent No. 4. The action of the U, P. PublicService Commission, Allahabad. In placing the petitioner below the respondent No. 4 is wholly illegal and contrary to law. He submitted that the U. P. Subordinate Revenue Executive service (Naib Tahsildar) Rules, 1944, (hereinafter referred to as the Rules of 1944) governed the selection and appointment of Naib Tahsildar. There is no provision empowering the U. P. Public Service Commission, Allahabad to place a person who has obtained higher marks in the inter