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4. Mr. Sunil Otwani, learned State counsel, would submit that the life of select list stood expired on 15-2-2011 and six candidates have not joined and 11 candidates have resigned after joining, the petitioners were not selected candidates and even if they were in waiting list, in light of the select list having expired on 15-2-2011 and new process of recruitment for 351 posts having been initiated, the PSC is absolutely justified in declining to accept the proposal of the State Government to send the names of 17 candidates for recruitment on the ground that six candidates have not joined and 11 candidates have resigned after joining. As such, the order dated 3-6-2011 passed by the PSC is in accordance with law. Mr. Otwani, learned State counsel, would rely upon the decision of the Supreme Court in the matter of Secretary, Kerala Public Service Commission v. Sheeja P.R. and another 1 in support of his contention.

5. Mr. Ashish Shrivastava, learned Senior Counsel appearing for the Chhattisgarh PSC / respondent No.2, would submit that since the extended life of the select list stood expired on 15-2-2011 and new recruitment process has been initiated, the PSC is absolutely justified in declining to accept the proposal of the State Government for sending the names of 17 Ayurved Medical Officers, as six candidates have not joined and 11 candidates have resigned after joining. He would rely upon the decisions of the Supreme Court in the matters of Manoj Manu and another v. Union of India and others 2 and Dinesh Kumar Kashyap and others v. South East Central Railway and others 3 to buttress his submission.

6. I have heard learned counsel for the parties and considered their rival 1 (2013) 2 SCC 56 2 (2013) 12 SCC 171 3 (2019) 12 SCC 798 submissions made herein-above and also went through the record with utmost circumspection.

7. Recruitment process for the post of Ayurved Medical Officer was initiated on 28-5-2008 and final select list was published on 4-12-2009 in which the names of the petitioners did not find place, however, the life of select list expired on 15-2-2011 as per Annexure P-1. It appears that thereafter, six candidates did not join and 11 candidates have resigned after joining and thus, 17 posts have fallen vacant and the State Government made a request to the PSC to send the names of 17 candidates for appointment as Ayurved Medical Officer which the PSC by the impugned order declined on the ground that life of select list has expired on 15-2-2011 and new recruitment process for 351 posts of Ayurved Medical Officer is initiated therefore, there is no justification in sending the names of earlier selected candidates and accordingly closed the departmental proposal which has been called in question in these two writ petitions by the petitioners herein. The recruitment was held in accordance with the Chhattisgarh Public Health (Indian Systems of Medicine and Homeopathy) (Gazetted) Service Recruitment Rules, 1987, but there is no provision of waiting list, if any.

"10. Notwithstanding the aforesaid Statutory Rule and without applying the mind to the aforesaid Rule the High Court relying upon some earlier decisions of the Court came to hold that the list does not expire after a period of one year which on the face of it is erroneous. Further question that arises in this context is whether the High Court was justified in issuing the mandamus to the appellant to make recruitment of the writ petitioners. Under the Constitution a mandamus can be issued by the Court when the applicant establishes that he has a legal right to the performance of legal duty by the party against whom the mandamus is sought and said right was subsisting on the date of the petition. The duty that may be enjoined by mandamus may be one imposed by the Constitution or a Statute or by Rules or orders having the force of law. But no mandamus can be issued to direct the Government to refrain from enforcing the provision of law or to do something which is contrary to law. This being the position and in view of the Statutory Rules contained in Rule 26 of the Recruitment Rules we really fail to understand how the High Court could issue the impugned direction to recruit the respondents who were included in the select list prepared on 4-4-1987 and the list no longer survived after one year and the rights, if any, of persons included in the list did not subsist. In the course of hearing the learned counsel for the respondents, no doubt have pointed out some materials which indicate that the Administrative Authorities have made the appointments from a list beyond the period of one year from its preparation. The learned counsel appearing for the appellants submitted that in some cases pursuant to the direction of the Court some appointments have been made but in some other cases it might have been done by the appointing authority. Even though we are persuaded to accept the submission of the learned counsel for the respondents that on some occasion appointments have been made by the appointing authority from a select list even after the expiry of one year from the date of selection but such an illegal action of the appointing authority does not confer a right on an applicant to be enforced by a Court under Article 226 of the Constitution. We have no hesitation in coming to the conclusion that such appointments by the appointing authority have been made contrary to the provisions of the Statutory Rules for some unknown reason and we deprecate the practice adopted by the appointing authority in making such appointments contrary to the Statutory Rules. But at the same time it is difficult for us to sustain the direction given by the High Court since, admittedly, the life of the select list prepared on 4-4-1987 had expired long since and the respondents who claim their rights to be appointed on the basis of such list did not have a subsisting right on the date they approached the High Court. We may not be understood to imply that the High Court must issue such direction, if the writ petition was filed before the expiry of the period of one year and the same was disposed of after the expiry of the statutory period. In view of the aforesaid conclusion of ours it is not necessary to deal with the question whether the stand of the State Government that there existed one vacancy in the year 1987 is correct or not."