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3. In writ petition No. 339/86, the respondents No. 1 & 2 filed an application for intervention and also prayed for vacation of the stay order. By order dated 28.4.1987, the stay order was vacated. While vacating the stay order, this Court has observed that the State Government shall be competent to give effect to the selection made by the Commission and appoint the person selected. In all six persons were selected. Thereafter State Government only appointed two candidates, namely, Radhey Shyam Vijayvargiya and Nisar Ahmed, who were at Serial No. 1 & 2 of the selection list and the names of the respondents were found at Serial No. 3 & 5. Subsequently, the aforesaid writ petition No. 339/86 was transferred to the State Administrative Tribunal(for short referred to as the "SAT") and registered as T.A. No. 587/98 and final order was passed by the Tribunal on 15.1.1998 and the writ petition was rejected. Against which the respondent No. 3 to 6 filed writ petition challenging the aforesaid order of the SAT, which was registered as W.P. No. 2062/98 but no interim relief was granted in their favour, however, subsequently, the aforesaid writ petition was also dismissed. Thereafter respondent No. 1 & 2 also filed an original application before the SAT which was numbered as O.A. No. 1711/99 against the non-action on the part of the appellant/State, for not issuing the appointment orders. That Original Application remained pending and after abolition of the SAT the Original application was transferred to High Court, which was registered as W.P. No. 4525/03.

5. We have heard the learned Counsel for the appellant/State as well as counsel for the respondents No. 1 & 2.

6. Learned Government Advocate raised a similar plea that the list was lapsed after the period of 18 months and the respondents No. 1 & 2 had not agitated their right and they have filed O.A. No. 1711/99 in the year of 1999 whereas the stay order was vacated on 28.4.1987 and the two appointments were already given by the State out of the aforesaid list and more so, the High Court cannot direct the State Government to create supernumerary post and give the appointment. The only direction to consider their cases can be given.

10. Learned Counsel for the appellant cited a decision in the case of A.P.S.R.T.C and Anr. v. Dennina Rajeswari reported in 1999 AIR SCW 4940, in which it was held that direction to create supernumerary post should not be granted. It was directed by the Apex Court that if any vacant post becomes available in near future then the Corporation shall consider the case of the appellant and appoint her as early as possible. But, this matter relates to compassionate appointment which is not at par with the case in hand. Another case of H.R.T.C. v. Dinesh Kumar was cited to say that direction to create supernumerary post cannot be granted, but, that case is also not at par with the facts of the present case. In that case appointment was sought under the "kith and kin policy" of the employer and particular post was not available. That case is also not at par with the facts of present case. The case of Hindustan Aeronautics Ltd. v. A. Radhika Thirumalai , which has also been relied on by the counsel for the appellant/State is also not helpful to the State, as it is also the case of the recruitment on compassionate ground. The facts of the present case are quite different. Here in this case, the post was vacant, and advertisement was issued and respondents No. 1 & 2 were selected by the Public Service Commission and list expired during the pendency of litigation. When the State has granted benefit to the employees those who were appointed on ad hoc basis under back door entries after relaxation in rules and have denied the appointment to the legitimate persons those who were selected on merits through Public Service Commission. The action of the State cannot be held to be legal and proper. In such circumstances, the order for creation of supernumerary post can be passed and, in our considered opinion, the Single Judge has not committed any illegality in passing the impugned order. Supreme Court has clearly held that while granting relief original cause of action may be considered. As argued, even after vacating stay order, the petition was not finally decided and only two appointments were made. The respondents were waiting for the disposal of the writ petition, in which orders were passed against them. When even after the dismissal of writ petition State acted contrary to the interest of the respondents and in favour of those who were involved in getting wrong benefit, ultimately the respondents No. 1 and 2 had filed O.A. No. 1711/99.