Maninder Kaur Vs. Delhi High Court and ors. - Court Judgment

Y.K. Sabharwal, J.

(1) This judgment will dispose of separate writ petitions filed by five practicing advocates of Delhi seeking appointment to the post of Additional District and Sessions Judge (for short 'ADJ') as members of Delhi Higher Judicial Service (for short 'Service'). One of the petitioners, namely, Mr. Malkhan Singh (CW 1656/86) belongs to scheduled castes community. The other four belong to general category.

(2) In the petition of Mr. Malkhan Singh and Mr. Sanjay Kaul (CW 3811/91) the three respondents are Union of India, Delhi Administration and Delhi High Court.

(3) In other three petitions (CW 1797, 1702/92 and Cw 3025/91) beside aforesaid respondents, three Additional District and Sessions Judges are also respondents They are Mr. S.N. Aggarwal (Respondent No.7), Mr. P.K. Bhasin (Respondent No.8) and Ms. Reva Khetrapal (Respondent No.9). Earlier to their appointment these officers were also practicing advocates at Delhi. On 30th November, 1991 they were appointed as ADJ's in compliance with the judgment dated 19th April 1991 in Cwp Nos. 613 and 2590 of 1990, order dated 2nd August 1991 on review application No.2471 of 1991 filed by Mr. S.N. Aggarwal and order dated 26th November 1991 on C.M.No.5567/91 filed by Mr. P.K. Bhasin in C.W.613 of 1990 passed by a Division Bench of this-Court. We may first notice the relevant constitutional provisions and the rules governing the recruitment to the Service.

(4) There are two sources of recruitment of ADJ's, one of it being direct recruitment from the bar. Article 233(2) of the Constitution of India inter-alia, provides that an advocate becomes eligible for appointment only when the recommendation is made by the High Court for appointment. The High Court, in the context of Article 233, means the Full Court. The Delhi Higher Judicial Service Rules, 1970 (for short 'the Rules') which govern the recruitment, promotion, confirmation, seniority and other conditions of service for officers appointed to the Service were framed vide notification issued on 27th August, 1970. After initial recruitment, the regular recruitment is governed by Rules 7 to 11 of the Rules. Rule 7 lays down two sources for recruitment : (1) by promotion from amongst the officers of the Delhi Judicial Service, and (2) direct recruitment from the bar with the stipulation that the quota for direct recruitment shall not at any time exceed more than l/3rd of the total cadre strength of the service. In these petitions we are concerned with the direct recruitment from the bar. Rule 22 provides that the reservation of posts for the scheduled castes and scheduled tribes shall be in accordance with the orders issued by the Central Government from time to tune. Rule 10 provides that the High Court shall before making recommendations to the Administrator invite applications by advertisement and may require the applicants to give such particulars as it may prescribe and may further hold such tests as may be considered necessary.

(5) By advertisement issued by the High Court in May 1985 applications were invited from practicing advocates possessing the requisite qualifications for direct recruitment as ADJ's. The number of vacancies advertised were four and out of them one each was reserved for scheduled castes and scheduled tribes candidates. Mr. Malkhan Singh applied against the post reserved for scheduled castes. Against this post the candidate selected and recommended by the High Court was Mr. Padam Singh who was accordingly appointed as ADJ. None was found suitable for appointment against the post reserved for scheduled tribes and hence, the said vacancy was carried forward and it was decided that the post reserved for scheduled tribes be readvertised in accordance with the instructions on the subject.

(6) By advertisement dated 18th October 1985 the aforesaid scheduled tribes vacancy was readvertised, inter-alia, notifying that general candidates were also eligible to apply and that if no scheduled tribes candidate is available only then candidates from general category would be selected for being considered for appointment to the service. The advertisement dated 18th October 1985 and sub- sequent advertisement dated 9th January 1986 has been challenged by Mr. Malkhan Singh. The main ground of challenge is that when the advertisement was issued in May 1985 it was third subsequent recruitment year and thus the vacancy reserved for scheduled tribes was exchangeable with scheduled castes candidate in case no suitable scheduled tribes candidate was available. Mr. Malkhan Singh claims that he had been selected and was placed on reserved list of candidates at Seriall No.2 after Mr. Padam Singh and ought to have been appointed as Adj as no scheduled tribes candidate was found suitable for the post and contends that the action of the respondents to readvertise the said vacancy by advertisement dated 18th October 1985 is illegal and invalid and so also subsequent advertisements dated 9th January 1986, 6th April 1987, 9th December 1987 and 11th August, 1989.

(7) In order to appreciate the respective contentions we may also briefly notice advertisements issued by the High Court in April 1987, December 1987 and September 1989 for filling up the vacancies of ADJ's and the appointments made pursuant thereto.

(8) In April 1987, Delhi High Court issued advertisement for filling up 10 vacancies of ADJ's in the Service from' the quota of the bar. Out of them 4 were for reserved category candidates (2 scheduled castes and 2 scheduled tribes). It was also notified that one of the two vacancies reserved for scheduled tribes was open to general candidates also who would be considered only in case no suitable scheduled tribes candidate was available. In the interviews held 5 candidates of general category were recommended for appointment. They were duly appointed on 6th January 1988. No suitable candidate belonging to scheduled castes and scheduled tribes became available in that selection. According to the vacancy position of general candidates at that time one more candidate of general category could also, have been appointed but it seems that in its anxiety that the post meant for scheduled tribes candidate may not lapse, a proposal was sent by the High Court for de-reservation of the scheduled tribes vacancy and name of sixth candidate of general category, namely, Mr. S.L. Bayana for appointment on dereservation was recommended stating that the scheduled tribes vacancy would be carried forward. It seems that the proposal for de-reservation was not accepted by the government. Mr. Bayana was thereforee, appointed in August 1989 against a vacancy of general category. It is claimed by Ms. Maninder Kaur, Mr. V. Shankara and Mr. Mahinder Singh that the Screening Committee had prepared a select panel of 9 candidates from general category candidates and the said panel was approved by the Full Court. The name of Mr. V. Shankara was at Seriall No.7. The name. of Mr. Mohinder Singh was at Seriall No.8 and that of Ms. Maninder Kaur at Seriall No.9 of the said panel. We may, however, notice that no recommendation was made by the High Court for appointment of these three petitioners for their appointment as ADJ's for the vacancies advertised in April 1987. The grievance of these petitioners arises because of the appointments of Ms. Reva Khetrapal, Mr. S.N. Aggarwal and Mr. P.K. Bhasin as ADJ's who were selected and recommended for appointment pursuant to subsequent advertisement issued in December 1987. We may now notice the circumstances under which these three officers were appointed.

(9) In December 1987 Delhi High Court once again invited applications from practicing advocates for filling up of four vacancies in the Service reserved for scheduled castes and scheduled tribes. It was also notified in the advertisement that these vacancies shall be filled up from general category candidates in the event suitable candidates from reserved category were not available. It was against this advertisement that the aforesaid three officers had applied. Only one of these four vacancies could be filled up by a scheduled castes candidate Mr. L.D.Maul. No other scheduled castes or scheduled tribes candidate was found suitable. Accordingly, it was decided by the High Court (Full Court) to appoint three general category candidates after seeking de-reservation in terms of instructions contained in 'Brouchure on reservation for Scheduled Castes and Scheduled Tribes Candidates in Service' (for short 'the Brouchure'). According to this decision a proposal was sent by the High Court on 16th November 1988 but it seems that the Delhi Administration did not forward the said proposal to Government of India probably for the reason that the reply to the earlier proposal for de-reservation of one scheduled tribes vacancy against which the name of Mr. Bayana had been recommended was still awaited. At about this stage Office Memorandum dated 25th April 1989 was issued by the Department of Personnel and Training, Government of India, whereby a general ban was imposed on de- reservation with effect from 1st April 1989. According to this memorandum the post reserved for scheduled castes and scheduled tribes communities were required to be filled only by candidates belonging to these communities and even where sufficient number of such candidates were not available, the vacancies could not be filled up by candidates belonging to other communities. This ban on de-reservation was applicable to vacancies of Services of Group A, B, C and D and was to apply not only to the vacancies which arose after 1st April 1989 but also to the vacancies reserved for scheduled castes and scheduled tribes communities in earlier years which had not yet been filled up by other communities candidates, whether these vacancies had been de-reserved or not.

(10) It seems .that on receipt of this office memorandum neither the High Court nor the Delhi Administration pursued the proposal which had been sent on 16th November 1988 for de-reservation of three posts of scheduled castes and scheduled tribes candidates against which the three officers referred to above were recommended.

(11) In view of aforesaid position the High Court in September, 1989 issued another advertisement notifying that the likely vacancies were three in number, two of which were reserved for scheduled tribes and one for scheduled castes. It was also stated that one of the vacancies reserved for scheduled tribes will be exchangeable to scheduled castes if a suitable scheduled tribe candidate does not become available. Pursuant to this advertisement two candidates belonging to scheduled castes community were selected for appointment. They were Mr. Prithvi Raj and Mr. G.S. Jugti. No candidate of scheduled tribes community was available. This led to filing of two writ petitions, one by Mr. P.K. Bhasin (CW 613/90) and other by Mr. S.N. Aggarwal (C.W.2590/90). In these two petitions Mr. Bhasin and Mr. Aggarwal. sought appointment to the Service and raised manifold contentions, inter-alia, praying that Rule 22 of the Rules be struck down as unconstitutional as also the office memorandum dated 25th April 1989 and fur- ther that the advertisement issued by the High Court in September 1989 whereby these vacancies were exclusively notified for scheduled castes and scheduled tribes candidates be quashed and also the resultant selection of Mr. Prithvi Raj and Mr. Jugti. It was also prayed that direction be issued to the respondents to dereserve the three reserve vacancies and a writ Of mandamus be issued directing their appointment against the said vacancies Along with the third general category candidate as selected in the interviews held in October 1988 in accordance with the seniority as per selection panel.

(12) These two writ petitions were decided by a Division Bench of this Court by judgment dated 19th April 1994 reported as P.K. Bhasin v. Union of India & Ors,' 1991 (2) DL 368 holding that neither Rule 22 nor the principle of reservation of posts in the Service nor the office memorandum dated 25th April 1989 are open to any constitutional challenge or otherwise. The contention that the office memorandum showed unfavorable bias against the candidates of general category was also rejected. Dealing with the plea of Bhasin and Aggarwal on the strength of Supreme Court decision in the case of Prem Prakash etc v. Union of India and Others, : (1985)IILLJ341SC the Bench said -

'ALTHOUGH we find justification in the plea of the petitioners on the strength of Prem Prakash's case (supra) that having been once empanelled 'for selection, they acquired a right to be exhausted against vacancies which exist or might occur, but.in a case like this, where right to appointment, even after selection was not absolute, but subject to dereservation, we do not think that the principle as laid down in Prem Prakash's case (supra) will be attracted.'

(13) The matter,however, did not end with the aforesaid finding. The Bench further observed that two sets of selected candidates presents the court with hobson's choice. We may quote the relevant observations -

'RESPONDENTS6 and 7 herein applied in response to this advertisement and were selected for appointment in the interview held sometime in January, 1990. The fact that these two candidates have been selected and recommended for appointment emerges from the pleadings and has thus taken to be an established position. These respondents thus became also empanelled for appointment against vacancies meant exclusively for them in the 40 point roster, whether in their own right as Scheduled Caste candidates or in exchange for Scheduled Tribes candidates vacancies in terms .of the instructions contained in the Brochure.' This confrontation between the candidates selected by two Selection Committees successively resulted as a matter of administrative action of the High Court. Considering the fact that the candidates selected in the latter selection belonged to reserved category and meant to man posts reserved for them, vis-a-vis the rights of the general category candidates who claimed to have been selected and recommended for appointment in accordance with the earlier advertisement, presents the court with hobson's choice, and we do not find it possible keeping in view the ratio of different Supreme Court judgments' discussed above, to say that the respondents No.6 and 7 should make way to the petitioners.'

(14) Taking note of heavy pendency of cases in courts and delay in filling up posts of Judicial Officers in District Courts, the directions issued by the Division Bench were as follows :-

'BEFORE parting with the case. We would like to put on record that action for filling up of vacant posts in the District Court is a matter which does not brook any delay in view of the heavy pendency before the courts, which fact was highlighted pointedly by the Supreme Court in the case of R.L. Gupta & another vs. Union of India and others, : (1988)IILLJ113SC . Even otherwise it can be a matter for judicial notice that delay in disposal of cases due to reasons, inter alia, paucity of officers manning the judicial posts in district courts affects mostly the weaker sections of the society, because it is they who are mostly involved in litigation there, and any insistence on the part of the Government not to consider request for dereservation is bound to adversely affect the interest of the weaker and poor sections of the society, to serve whose interest the policy of reservation has been adopted, and is sought to be made more stringent by means of the office memorandum of 25th April, 1989. In view of our preceding findings, we hold that respondents No.6 and 7 are entitled to be appointed against the two reserved vacancies; one, which was meant for Scheduled Castes candidates, and the other in exchange for Scheduled Tribes candidate of Point 8, and direct that they be appointed accordingly without further delay so that the posts which are lying vacant since long are filled up in the interest, if nothing else, of the litigant public. In so far as the general category candidates, who were recommended for appointment by letter dated 16th November, 1988 subject to dereservation, which included two petitioners also are concerned, we issue a direction to the appointing authority that one of them be adjusted in order of seniority against the remaining Scheduled Castes vacancy advertised in 1989, and pending since 1987, by making a proposal for dereservation in the manner contemplated by office memorandum dated 25th April, 1989, giving full justification in the proposal. We further issue a writ of mandamus to the respondents particularly Department of Personnel and Training that this proposal of dereservation be considered on merit and allowed within a month of receipt of the. proposal from Delhi Administration, pursuant to recommendation of the High Court. We were also informed during hearing that one vacancy of a direct recruit belonging to general category has arisen during pendency of the writ petitions. We direct, on the authority of the Supreme Court in the case of Prem Prakash(supra) that candidates once selected, -and empanelled, must be accommodated, that this vacancy be filled -up by one of the three general category candidate who had already been selected in 1988. This vacancy shall go to the first candidate in order of seniority in the panel of three names, the second name from this penal be recommended for appointment with proposal of dcreservation, as directed above, against the remaining Scheduled Caste vacancy. We arc not aware if any other vacancy of a direct recruit is available. So we are constrained to hold that the third candidate in the panel of 1988, in order of seniority, whosoever may be- among the two petitioners in the writ petitions cannot be considered, and his writ petition is liable to be dismissed and shall stand dismissed accordingly. We may note that though we were informed that one vacancy is likely to arise in April 1991 pursuant to retirement of Mr. G.S. Dhaka, but we are deliberately refraining from issuing any direction for adjusting the third candidate against that vacancy because that is reserved category post and we do not think ourselves competent to deprive a prospective Scheduled Caste candidate, who might have a right to apply and get selected against this vacancy, by making direction that a general category candidate be adjusted against that vacancy arising in future, as was suggested during arguments, because apart from the reasons given -above, otherwise also this third candidate was selected against the existing Scheduled Caste vacancy which we have held as having rightly gone to a Scheduled Castes candidate. He, thereforee, cannot have any vested right to be considered against future vacancy of the reserved category.'

(15) The decision of the Division Bench was not challenged in Supreme Court either by the High Court or by the Government or by the petitioners before us. Mr. Bhasin,however, had filed an appeal against the Division Bench judgment in Supreme Court.

(16) After the aforesaid decision of the Division Bench one vacancy arose on retirement of Mr. G.S. Dhaka, a Judicial Officer belonging to scheduled castes community. This led to filing of Review application No.2471 of 1991 in C.W.P.No.2590/90 by Mr. S.N. Aggarwal contending that the working of the Roster reveals that the vacancy created by retirement of Mr. Dhaka is a general category vacancy even though Mr. Dhaka belonged to scheduled castes community. The factual petition was conceded by the High Court and it was ad- mitted that the vacancy that occurred in May 1991 on the retirement of Mr. Dhaka shall fall against Point No.22 in the roster and that is a general category vacancy. In view of the clarification given by the High Court the Review application of Mr. Aggarwal was allowed by the Division Bench on , 2nd August, 1991 and it was directed that Ms. Reva Khetrapal and Mr. Aggarwal be appointed against unreserved vacancies at Point No.s 20 and 22 and insofar as Mr. Bhasin is concerned the directions given in judgment dated 19th April 1991 in respect of Mr. Aggarwal shall mutes mutants apply to Mr. Bhasin and the High Court shall act accordingly in respect of Mr. Bhasin instead of Mr. Aggarwal.

(17) After about a month of aforesaid order the strength of the Service was increased by virtue of Notification dated 5th September 1991 with the result that two more general category vacancies at Points No.23 and 24 in the roster became available. This led to Mr. Bhasin filing Cm 5567 of 1991 praying that he should be appointed against first of these general category vacancies falling at Point No.23. The High Court and Delhi Administration took the stand that following the precedent in the case of Mr. Aggarwal they have no objection to the appointment of Mr. Bhasin against the general category vacancy at Point No.23. In this view of the matter, the Division Bench by orders dated 26th November 1991, inter-alia, directed that no steps need be taken for de-reservation of any of the vacancy and directed the respondents to appoint Mr. Bhasin to the general category vacancy falling at Point No.23 in 40 Point Roster. We have been informed that since Mr.Bhasin got the relief he withdrew his appeal filed in the Supreme Court challenging the Division Bench judgment dated 19th April 1991.

(18) The writ petitions were filed by Ms. Maninder Kaur in September 1991 and by Mr. V. Shankara and Mr. Mohinder Singh in the year 1992 .inter-alia, praying that directions be issued to first exhaust the panel of 1987 and appoint them to the posts of Adj in the Service and the appointments of respondents 7, 8 and 9 be quashed as null and void and the judgment and orders passed by the Division Bench be reviewed/recalled.

(19) Civil Writ Petition No.3811/91 was filed by Mr. Sanjay Kaul claiming parity with Respondents 7,8.and 9 and contending that he being on panel of 1988 deserves same treatment as given to these Respondents and seeking directions for his appointment as ADJ.

(20) Dealing first with the contentions' of the three petitioners whose picas and contentions are identical, we may notice that in the opening arguments these petitioners contended that the Division Bench judgment and orders are correct insofar as the same directs appointments as Adj of candidates already on(r)select panel against future vacancies but the Bench went wrong in directing that Respondents 7, 8 and 9 be appointed as these respondents were on select panel of the year 1988 whereas the petitioners were on select panel of 1987 and in this view the Bench should have directed the appointments of the petitioners against future vacancies and not of 1988 penalists. It was,therefore, submitted that the part of the judgment and orders of the Division Bench that directs appointments of Respondents 7, 8, and 9 is liable to be set aside and quashed and directions should be issued for the appointment of the petitioners. Later, however, while replying to the arguments of the respondents, the petitioners changed their stand. Now it was contended that the Division Bench after holding that there was no illegality in the reservation or Rule 22 or in the Memorandum dated 25th April 1989, should have dismissed Writ Petitions No. 613 and 2590/90 and the Bench grossly erred in directing appointment of Respondents 7 to 9 against future vacancies thus depriving the petitioners and other advocates for applying and for being considered for appointment against the said future vacancies. It was contended that the Division Bench wrongly applied the Supreme Court decision in Prem Parkash's case as the said decision was applicable only when a candidate is selected against a declared vacancy and Respondents 7 to 9 had not been selected against the declared vacancies having been selected against reserved vacancies subject to dereservation which was not permitted by the Government and decision of the Government was upheld by the Division Bench. In the nutshell they have confined their prayer to setting aside of the judgment and orders of the Division Bench and consequently the appointments of Respondents 7, 8 and 9 as ADJ's. It was contended that on the said appointments being set aside, the three vacancies should be directed to be advertised in accordance with the Rules so that everyone eligible would get an opportunity to be considered for appointment against those vacancies.

(21) The question that at once arises is whether a petition under Article 226 is competent and maintainable which seeks quashing and setting aside of the judgment and orders of 'a Bench of this court or the appropriate remedy is to challenge the judgment and orders by preferring appeal against it in the appellate forum or by filing review application in the same case. For considering this question we would assume as correct the contentions that the judgment and orders of the Division Bench arc not { correct.

(22) Relying strongly on decision of Supreme Court in the case of A.R. Antulay v. R.S. Nayak & Ors : 1988CriLJ1661 it was contended for the petitioners that this court in exercise of power under Article 226 has inherent jurisdiction to correct the error committed by the Division Bench as the same has resulted in violation of fundamental rights of the petitioners as guaranteed under Article 14 and 16 of the Constitution of India.

(23) Article 14 is invoked by contending that the Division Bench judgment is arbitrary and has the effect of placing the petitioners in disadvantage position though they were better placed than Respondents 7, 8 and 9 since the petitioners were on select panel of the earlier year and the respondents on select panel of a later year.

(24) Article 16 is invoked by contending that directions for appointment of Respondents 7, 8 and 9 against future vacancies has deprived the petitioner and others of an equal opportunity to be considered for appointment against future vacancies.

(25) It is contended that the Division Bench judgment and orders has the effect of the violation of the aforesaid fundamental rights of the petitioner and,therefore, this Bench which is a larger Bench, is not powerless to correct the error committed by the Division Bench and reverse that decision and its effects and benefits. The decision of the Apex Court in Antulay's case was extensively read before us by both sides. The main reliance of the petitioners was on the following observations:- 'This court is not powerless to correct its error which has the effect of depriving a citizen of his fundamental rights and more so, the right to life and liberty. It can do so in exercise of its inherent jurisdiction in any proceedings pending before it without insisting on formalities of a review application. The power of review can be exercised in a petition filed under Article 136 or Article 32 or under any other provision of the Constitution if the court is satisfied that its directions have resulted in the deprivation of the fundamental rights of a citizen or any legal right of the petitioner.' The aforesaid observations have to be appreciated in the context in which the same are made and cannot be taken out of context. It is the ratio of the judgment which is relevant and not any observation taken out of context. The Supreme Court was considering a case in which directions issued earlier by a Bench of Supreme Court were held to be vocative of petitioner's right of life and liberty, which the petitioner could not challenge elsewhere since the Supreme Court was the highest court of the land and it is, on these peculiar facts and circumstances, the aforesaid observations were made.

(26) The ratio of the decision of the Supreme Court in Antulay's case, to our mind, is that if a judicial decision has the effect of abridging the fundamental right and there is no appropriate remedy to get such an order removed because the court which makes the order has no superior, that superior court is not powerless to set aside or recall the earlier order. In Antulay's case directions contained in the order dated 16th February 1984 were recalled as it was held that the said order had the effect of violating the fundamental right of the petitioner as guaranteed under Articles 14 and 21 of the Constitution and there was no superior court to which Antulay could go to get the order dated 16th February 1984 set aside and recalled. It has also been held in Antulay's case that it was not a case of collateral attack on judicial proceedings but a case where the court having no court superior to it rectifies its own orders. The Supreme Court held that in giving the directions the court infringed the onstitutional safeguard guaranteed to a citizen or to an accused and injustice resulted there from and thus it was just and proper for the court to rectify and recall that injustice in the peculiar facts and circumstances of the case. The main peculiarity of the facts and circumstances of the case before the Supreme Court was that there was no superior court which could be approached by Antulay to seek redressal of his grievances.

(27) Apart from what is stated above it has also to be borne in mind that Antulay's case cites with approval the 9 Judges decision' in the case of Naresh Sridhar Mirajkar v. State of Maharashtra : [1966]3SCR744 . In Mirajkar's case an order made by a trial Judge of Bombay High Court to the effect that proceedings would be held in camera and the Press will not be allowed to publish the proceedings of the court were sought to be challenged by third parties by filing a writ petition on the ground that their fundamental rights were being affected and such an order is nullity and not binding on the Press. Dismissing the writ petition the Supreme Court held that the writ petition to challenge such an order was not competent and opined that the High Courts were not the courts of inferior jurisdiction insofar as its amenability to the jurisdiction of the Supreme Court under Article 32 was concerned. The law laid down in Mirajkar's case would' squarely apply to the facts and circumstances of the case before us.

(28) The Supreme Court again in the case of Triveni Ben v. State of Gujrat, : 1990CriLJ1810 has reiterated that a judgment of a court can never be challenged by filing a writ petition alleging violation of right under Article 14 or 21 of the Constitution of India.

(29) This question even when examined on first principles would also lead us to the conclusion that the judgment of a Bench cannot be challenged before another Bench except, of course, in appellate jurisdiction or a larger Bench overruling a decision of a smaller Bench on legal question and to hold otherwise would lead to utter chaos, confusion and uncertainty in the administration of justice and would run contrary to the Committee existing between the courts.

(30) Our conclusion, thereforee, is that & judgment of a court cannot be challenged by having recourse to the writ jurisdiction of the High Court under Article 226 of the Constitution. It can be challenged before an appellate court or before the same court by filing Review application in the same case in case the law so per- mits.

(31) In view of above it is not permissible for us to recall or review the Division Bench judgment and orders while exercising our jurisdiction under Article 226 of the Constitution.

(32) This now takes us to the oral prayer made at the fag end of the case by die three petitioners that their writ petitions be treated as review applications. For more than one reason we find it difficult to accept this oral prayer. Firstly, the law prescribes a period of limitation for filing a review application. Secondly, a certificate is required to be given by the counsel that it is a fit case for review. Thirdly review application is required 'to be heard by the same Bench, if available, and the same number of Judges. Fourthly, all the parties have to be before the court. Fifthly the review application has to be filed in the same case in which the decision is rendered. In the present case, the Hon'ble Judges who had decided the matter in the Division Bench were available in this Court for about two years. , of the Hon'ble Judge who had decided application on 26th November 1991 still continues to be a Judge of this Court. The application for review if now filed would be time barred and an application for condensation of delay will have to be filed. There is no certificate as required. All the parties in Cw 613 and 2590/90 are not parties before us. The review applications have not been filed in the two writ petitions decided by the Division Bench. With all these hurdles we do not think it appropriate to allow the oral prayer and treat these writ petitions as review applications in the writ petitions decided by the Division Bench.

(33) A similar question arose before a Division Bench of Punjab and Haryana High Court in Uday Singh v. State of Harayana present the in similar almost is position The Judge. single another before, absence his or concerned Judge learned before placed been have would course normal which application an such of form it filed should he then order and judgment petitioner by intended was review if orders not also could Court this against competent Constitution 227, 226 Article under petition that held Bench Division petitioner. hearing after reviewed be a earlier passed reheard reopened matter the, praying further decided had writ respondents one as imp leaded directing issued mandamus There Air1971 p&h; 284 Ors,

(34) Reliance was also placed by the petitioner upon a decision of the Supreme Court in Shiv Dev Singh & Ors. Vs.State of Punjab and others, Air 1963 Sc 1909 in support of the contention that the High Court under article 226 has power to review its own order to prevent miscarriage of justice or to correct grave and palpable errors committed by it. There cannot be any dispute about it but this proposition has no applicability here. This proposition would have been relevant if we were hearing a review application. No review application has been filed in the case decided by the Division Bench. Shiv Dev Singh's case, in fact, throws considerable light on the appropriate course to be followed in such matters. The facts of that case were that a decision had been rendered by a learned single Judge of High Court of Punjab allowing a writ petition in which only Director of Rehabilitation had been made party and not the parties on whom the decision had the adverse effect. After the decision the effected parties made an application before learned single Judge under Article 226 of the Constitution for being imp leaded as parties in the writ petition contending that the decision be set aside as it had affected their rights without hearing them and praying that they be im pleaded as parties in the writ petition and for .then hearing the matter. That prayer was allowed by the learned single Judge. It was against this decision allowing impleading and rehearing the matter the letters patent appeal was filed which was dismissed. After dismissal of the Letters Patent Appeal the matter was brought before the Supreme Court. Rejecting the contention that under Article 226 the High Court has no power to review its order and,therefore, the second order of Khosia, J. was without jurisdiction, the Supreme Court held that there is nothing in Article 226 of the Constitution to preclude the High Court from exercising power of review which is inherent in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. The Supreme Court also rejected the other contention that the opposite party had no right to apply for review because they were not parties in the original writ petition. The Supreme Court held that it is precisely for the reason that they were not parties to previous proceedings though their interest were sought to be affected by the decision of the High Court that the second application was entertained by Khosla,J. This decision thus shows that if petitioners were aggrieved by the judgment and orders Division Bench they could either challenge the game before the superior court by filing an appeal or by filing an application for being imp leaded in the same case and for review of the judgment and rehearing of the matter. None of these courses were adopted by the petitioners and instead they have filed these petitions under Article 226 of the Constitution, inter-alia, seeking review/recalling of the decision of the Division Bench. This course, in our view, is not permissible.

(35) We would now consider the contention of Mr. Sanjay Kaul and Mr. Malkhan Singh seeking appointment as ADJ's relying upon (i) office memorandum dated 8th February 1982 of the Government of India; (ii) Prem Parkash's judgment and (iii) the judgment of the Division Bench in Bhasin's case.

(36) The office memorandum dated 8th February 1982 is Annexure P.4 to the writ petition of Malkhan Singh. The said memorandum has also been reproduced in the decision of the Supreme Court in Prem Parkash's case. A perusal of the said memorandum shows that it is applicable in a case where a person is declared successful according to merit list of selected candidates which is based on the declared number of vacancies. The responsibility vests on the appointing authority to appoint such a person even if number of vacancies undergo a change after his name has been included in the list of selected candidates. It is thus evident that if a candidate has not been selected against the declared number of vacancies no right flows to him on the basis of the aforesaid Memorandum. Mr. Malkhan Singh had applied against one post reserved for scheduled caste. For that post Mr. Padam Singh was selected, recommended and ultimately appointed. Likewise, the declared number of vacancies when Mr. Sanjay Kaul applied were four which were reserved for scheduled castes and scheduled tribes It was notified in the advertisement that these vacancies shall be filled from general category candidates in the event of suitable candidates from reserved category were not available. Only one candidate Mr. L.D. Maul belonging to scheduled castes community was found suitable. No other candidate from reserve category was found suitable. The High Court, however, prepared a panel of six candidates of general category. The name of Respondent Nos. 9, 7 and 8 were at Seriall No. 1,2 and 3 respectively in the panel prepared in 1988. Mr. Sanjay Kaul was at Seriall No. 6 on the panel. There were also other advocates at Seriall No.4 and 5 of that panel. Against the four declared number of vacancies, one from scheduled caste community and three from general category were selected. Mr. Kaul cannot claim right to the appointment against a future vacancy. In case the contention that the entire panel is to be exhausted irrespective of the number of vacancies which may have been notified for selection is accepted, it may lead to continuing the panel in perpetuity which would be arbitrary and would infringe Article 14 and 16 of the Constitution thereby depriving other eligible candidates for being considered for public employment. In this regard we may also notice a recent decision of the Supreme Court in the case of Gujarat State Deputy Executive Engineers' Association v. The State of Gujarat & Ors. : (1995)ILLJ1047SC . The Apex Court has held that a candidate from the waiting list has no . right to claim appointment to any future vacancy which may arise unless the selection was held for it. The effect of making appointments of candidates from the waiting list on candidates who become eligible for competing for vacancies available in future, was expressed by Supreme Court in the following words -

'Awaiting list prepared .in an examination conducted by the Commission does not furnish a source of recruitment. It is operative only for the contingency that if any of the selected candidates does not join then the person from the waiting list may be pushed up and be appointed in the vacancy so caused or if there is some extreme exigency the Government may as a matter of policy decision pick up persons in order of merit from the waiting list. But the view taken by the High Court that since the vacancies have not been worked out properly, thereforee, the candidates from the waiting list were liable to be appointed does not appear to be sound. This practice, may result in depriving those candidates who become eligible for competing for the vacancies available in future. If the waiting list in one examination was to operate as an infinite stock for appointments, there is a danger that the State Govern- ment may resort to the device of not holding an examination for years together and pick up candidates from the waiting list as arid when required. The constitutional discipline requires that this Court should not permit such improper exercise of power which may result in creating a vested interest and perpetrate waiting list for the candidates of one examination at the cost of entire set of fresh candidates either from the open'or even from service.'

(37) It is also well settled that empanelment gives no right of appointment. The Supreme Court in the case of State of Bihar & Ors v. The Secretariat Assistant Successful and Examinees Union 1986 & Ors. : AIR1994SC736 has held -

'IT is now well settled that a person who is selected does not, on account of being empanelled alone, acquire any indefeasible right of appointment. Empanelment is at the best a condition of eligibility for purposes of appointment and by itself does not amount to selection or create a vested right to be appointed unless relevant service rule says to the contrary (See : Shankarasan Dash V. Union of India : (1992)IILLJ18SC and Sabita Prasad & Ors. Vs .State of Bihar & Ors - : AIR1992SC243 . We are, thereforee, of the opinion that the directions given by the High- Court for appointment of the empanelled candidates according to their position in the merit list against the vacancies till 1991 was not proper and cannot be sustained. Since, no examination has been held since 1987, persons who became eligible to compete for appointments were denied the opportunity to take the examination and the direction of the High Court would prejudicially effect them for no fault of theirs. At the same time, due to the callousness of the State in holding the examination in 1987 for the vacancies advertised in 1985 and declaring the result almost three years later in 1990 has caused great hardship to the successful candidates. The State was expected not to act in such a leisurely manner and treat the matter of selection for appointment to services in such a casual manner. We must record our unhappiness on this state of affairs. There is no justification for holding the examination two years after the publication of advertisement and declare the result almost three years after the holding of the examination and not issuing any fresh advertisement between 1985 and 1991 or holding examination for making selections. We expect the State Government to act in a better manner, atleast hereinafter and since Mr.Rao, the learned senior counsel has shared our concern and assured us of advising the State Govern- ment accordingly, we say no more on that aspect at this stage.'

(38) The decision of the Division Bench in Bhasin's case directing adjustment against future vacancies results in depriving other eligible candidates for being considered for the said vacancies. In our view the ratio of Prem Prakash's case was not correctly applied by the Division Bench. We may also notice that the Division Bench after rightly noticing in Para 89 of the aforesaid report that the principle laid down in Prem Prakash's case will not be attracted seems to have erred in the later portion of the judgment (Para 106) in directing on strength of Prem Parkash's case that candidates once selector and empanelled must be accommodated in future vacancy which came into existence during the pendency of the writ petition. There are reasons for preparing larger panel than the number of vacancies. It is possible that a recommended candidate may not come forth to join the Service or even after selection and recommendation there may be hurdles in his appointment like medical clearance etc. In order to avoid delay in the recruitment, a larger panel is prepared so that person next on the panel can be recommended for appointment. This, however, would not mean that in case the number of selected and recommended candidates to the extent of the existing vacancies join, the other candidates on panel are required to be adjusted against future vacancies. As held hereinbefore, this would lead to continuing the panel in perpetuity which is neither permissible in law nor in the interest of the Service.

(39) It is also to be borne in mind that there must be a judicially enforceable right for the enforcement of which a mandamus lies. The Supreme Court in State of Kerala v. A. Lakshmikatty and others, : [1987]1SCR136 has held that a person whose name has been recommended for appointment as a District Judge by the High Count under Article 233(1) has no legal right to the post nor was the Governor bound to act on the advise of the High Court and,therefore, he could not ask for mandamus. The existence of a right is the foundation of the jurisdiction of a court to issue a writ of mandamus. In this view too the law the petitioners have no right to ask for mandamus for their appointment as ADJ.

(40) In view of the aforesaid legal position and the fact that Mr. Sanjay Kaul and Mr. Malkhan Singh were not on the select panel against the declared vacancies, their reliance on 1982 office memorandum and on decision in Prem. Prakash case is misplaced.

(41) For the aforesaid reasons, in our view, Bhasin's case has not been correctly decided in so far as it implies right to appointment against future vacancies and enforcement of that right by issue of mandamus and,therefore, to that extent we overrule the said decision. We hold that the question of consideration of a candidate on select panel for being recommended would arise only when the candidate has been selected against the 'declared vacancy or in case of some extreme urgency and a candidate on the select list will have no right to be considered for recommendation for appointment as Adj against a future vacancy. We, thereforee, conclude that Mr. Sanjay Kaul, Mr. Malkhan Singh and none of other petitioners have any right to be considered for appointment as ADJ's against future vacancies and seek issue of mandamus.

(42) We may clarify that as a larger Bench it is permissible for us to overrule the law laid down by a Division Bench but as discussed above, it is not permissible for us to set aside or reverse the judgment except while exercising appellate jurisdiction.

(43) This takes us to the last question raised on behalf of Mr. Malkhan Singh. It was contended that 1985 was the third subsequent year for filling up of the vacancy reserved for scheduled tribe and thus the said scheduled tribes vacancy was exchangeable with scheduled castes candidate as no candidate belong ing to scheduled tribes community was available. For considering this contention it is necessary to examine the relevant provisions relating to working of carry forward formula and filling up of reserved vacancies as given in the Brochure. The provisions relevant for our purposes are given in Chapter 8 and Chapter Ii of the Brochure. For facility of reference the said Chapters are reproduced as under:- Chapter 8 Procedure For Filling Reserved Vacancies In Recruitment Through UPSC Or By Advertisement The following procedure should be followed while sending requisitions to the UPSC or issuing of advertisements for filling the reserved vacancies (in posts filled through advertisement as the primary source of recruitment):- 8.1. Advertisement of reserved vacancies for posts filled by direct recruitment otherwise than through examination: (a) First advertisement: Where direct recruitment (otherwise than through examination) is to be made to a vacancy or vacancies reserved for Scheduled Castes or Scheduled Tribes only (and not to any unreserved vacancy/vacancies as well), advertisement on the first occasion will be issued inviting applications only from the candidates belonging to the Scheduled Castes and/or the Scheduled Tribes, as the case may be, and not from general candidates. (b) Second Advertisement: If, after advertisement as in sub-para (a) above, the required number of scheduled Caste or Scheduled Tribe candidates are not selected for the reserved vacancy or vacancies the remaining reserved vacancy/vacancies will be readvertised but, on this occasion general candidates would also be eligible to apply. The general candidates would, however, be considered only if no suitable Scheduled Castes or Scheduled Tribe candidates, as the case may be, are still available for appointment to the vacancies reserved for them. This may be clarified in the advertisement. (c) Advertisement where recruitment is to be made for both reserved and un- reserved vacancies. If direct recruitment otherwise than through examination is to be made for reserved as well as unreserved vacancies on any one occasion, a single advertisement can be issued for such reserved and unreserved vacancies' specifying clearly therein the vacancies reserved for Scheduled Castes and Scheduled Tribes. If any reserved vacancies remain unfilled for want of suitable Scheduled Castes/Scheduled Tribes candidates, they should not be filled by general candidates, on this occasion but should be readvertised and filled on the lines indicated in sub- para (b) above. (d) Ad-hoc appointment of Scheduled Castes/Scheduled Tribes candidates : If it becomes necessary to fill a reserved vacancy pending selection according to the procedure outlined in sub-paras (a), (b) or (c) above, the appointing authority may make ad-hoc appointment of suitable Scheduled Caste or Scheduled Tribe candidates, as the case may be, against such reserved vacancy. In the case of posts recruitment to which is made through the Union Public Service Commission.. the ad- hoc appointment of Scheduled Castes/Scheduled Tribes candidates will be subject to Regulation 4(1) of the Union Public Service Commission (Exemption from Consultation)Regulations. 8.2 Advertisement of reserved vacancies for posts filled by direct recruitment through examination. Where direct recruitment is made through examination, for reserved s well as unreserved vacancies, a single advertisement would be issued for such examination but the number of vacancies reserved for Scheduled Castes and Scheduled Tribes would be specified clearly in it and in case the required number of Scheduled Castes or Scheduled Tribes candidates are not available even by applying relaxed standards for the vacancy/vacancies reserved for them, the remaining vacancy/vacancies could be filled by general candidates after dereservation of such vacancy/vacancies, subject to the reservations being carried forward as required. 8.3 Exchange of vacancies between Scheduled Castes and Scheduled Tribes. If a reserved vacancy or vacancies referred to in paras 8.1 and 8.2 include any vacancy/vacancies which have been carried forward to the third year of carry forward excluding the year of original reservation and the year or years in which no vacancy arises), applications should be invited both from Scheduled Castes and Scheduled Tribes candidates but it should be clarified in the advertisement that for- a vacancy or vacancies reserved for Scheduled Castes, Scheduled Tribes candidates would be considered only in the event of non-availability of suitable Scheduled Caste candidates and similarly in respect of a vacancy or vacancies reserved for Scheduled Tribes, Scheduled Castes candidates, would be considered only in the event of non availability of suitable Scheduled Tribe candidates. 8.4. Separate interview 'of Scheduled Caste/Scheduled Tribe candidates. In direct recruitment made in accordance with the procedure in para 8.1 above and in recruitment made through examination (vide para 8.2 above) followed by an interview, the interview of Scheduled Castes/Scheduled Tribes candidates should be held on a day or sitting of the Selection Committee other than the day or sitting on which general candidates are to be interviewed so that the Scheduled Castes and Scheduled Tribes candidates are not judged in comparison with general candidates and the interviewing authority/Board is/are prominently aware of the need for judging the Scheduled Castes/Scheduled Tribes candidates by relaxed standards. Chapter 11 Carrying Forward Of Reservations And Exchange Of Reservation Between Scheduled Castes And Scheduled Tribes 11.1 Carry forward of reservations. If sufficient number of Scheduled Castes and Scheduled Tribes candidates fit for appointment against reserved vacancies are not available, such vacancies can be dereserved after following the prescribed procedure for dereservation as in Chapter 10 and such reserved vacancies can be filled by candidates of other communities. After such dereservation, reservations are carried forward to subsequent three recruitment years except in the case of reservations in promotion by selection from Group C to Group B, within Group B and from Group B to the lowest rung of Group A where carrying forward of reservations are not permitted. Note (1) : 'Recruitment year' shall mean a 'calendar year' and for purposes of the three years limit for carryforward of reserved vacancies shall mean the year in which recruitment is actually made. Note (2): 'Recruitment year' in case of promotion when the panel prepared by the Dpc spreads into more than one calendar year will be the year in which the first recruitment is made from the select list prepared by the Departmental Promotion Committee. 11.2 Exchange of reservation between Scheduled Castes and Scheduled Tribes. While vacancies reserved for Scheduled Castes and Scheduled Tribes may continue to be treated as reserved for the respective community only. Scheduled Tribes candidates may also be considered for appoint- ment against a vacancy reserved for Scheduled Castes candidates and vice- versa where such a vacancy could not be filled by a Scheduled Caste or Scheduled Tribe candidate even in the third year to which the reservation is carried forward. The normal provision is that the ex- change is permissible only for the reservations which have been carried forward to third and subsequent year of recruitment. In case of promo- corporation by selection from Group C to Group B, within Group B and from Group B to the lowest rung of Group A where carrying forward of reservations are not permitted, vacancies can be exchanged between Scheduled Castes and Scheduled Tribes in the same year of recruitment. Note (2) Any recruitment of Scheduled Castes/Scheduled Tribes candidates will first be counted against the additional quota brought forward from the previous years in their chronological order. If Scheduled Castes/Scheduled Tribes candidates are not available for all the vacancies, the older carried forward vacancies should be filled first and the comparatively later carried forward vacancies should be further carried forward. For example, suppose in a particular recruitment year there are 50 vacancies out of which 22 are reserved for Scheduled Castes and Scheduled Tribes taking into consideration the carry forward and fresh reservation in the following manner : 1 5 2 I I 8 4 Scheduled Caste Scheduled Tribe Third year Second year First year Fresh Against the reserved vacancies of 10 for Scheduled Castes and 12 for Scheduled Tribes, suppose 8 Scheduled Castes and one Scheduled Tribe are available. As the oldest carried forward reservations have to be adjusted first the one Scheduled Tribe candidate will be adjusted against the oldest carried forward i.e. the third year. The remaining 4 reservations for Scheduled Tribes in the third yer of carry forward will be exchangeable with Scheduled Castes. Out of the 8 Scheduled Castes candidates, 4 will be adjusted against the exchangeable vacancies. One. against the third year for Scheduled Castes, one against the first year for Scheduled Castes and 2 against the fresh reservation for Scheduled Castes. So dereservation will be required for 6 vacancies for Scheduled Castes and 7 vacancies for Scheduled Tribes (2 of second year, one of first year, 4 fresh reservations). The total number of reservations not exceeding normally 50 per cent of the total number of vacancies filled in that year. The surplus, if any, above 50 per cent, when the ceiling of 50 per cent is applied shall be carried forward to the subsequent year of recruitment, subject, however, to the condition that the particular vacancies carried forward do not become time-barred due to their becoming more than three years old. 11.3 Reservation and carry forward of a single vacancy arising in a year. In' cases where only one vacancy occurs in the initial recruitment year and the corresponding roaster point happens to be for a Scheduled Caste or a Scheduled Tribe, it should be treated as unreserved and filled accordingly and the reservation carried forward to subsequent three recruitment years, but in the subsequent recruitment year(s), even if there is only one vacancy, it should be treated as 'Reserved' against the carried forward reservation from the initial recruitment year, and a Scheduled Caste/Scheduled Tribe candidate, if available, should be appointed in that vacancy, although it may happen to be the only vacancy in that recruitment year(s). This provision applies also to promotion by selection to Group C to Group B, within Group B and from Group B to the lowest rung of Group A where if there is a single vacancy it may be treated as unreserved and the reservation carried forward to three subsequent recruitment years even though carrying forward of reservations are not permitted in this particular promotion. If a single vacancy falls at a reserved point for SC/ST and is filled by SC/ST candidate on the basis of his own merit or seniority it need not be treated as unreserved and reservation should not be carried forward. In these cases, the provisions of orders of 29th April 1975 will not be applicable. Further, if a single vacancy falls at a reserved point for SC/ST and is filled up by a candidate of the other reserved community on the basis of this own merit or seniority as the case may be, the vacancies will be treated as unreserved and treated as if it is filled by a general candidate, and the vacancy shall also be carried forward, these cases, the instructions contained in this Department O.M. dated 29th April 1975, referred to above, shall apply. 11.4 Exchange of reservations between Scheduled Castes and Scheduled Tribes in services under certain Union Territories : In (i) direct recruitment to Group A (Class 1) and Group B (Class II) posts/services under the Union Territory of Mizoram and (ii) in promotions in posts/services under this Union Territory as well as in the U.T. of Andaman & Nicobar Islands, Lakshadweep and Dadra & Nagar Haveli; to which the scheme of reservation in pro motion applies, the unutilized vacancies reserved for Scheduled Castes in the respective categories of posts/services may be exchanged in favor of Scheduled Tribes every year, instead of only in the third year of carry forward under the general instructions referred to in para 11.2 above.'

(44) According to roster, vacancy at Point No.4 is reserved for candidate belonging. to Scheduled Tribes community. The vacancy at Point No.4 arose in the year 1980. It was a single vacancy in that year. Since that was the only one vacancy, in accordance with the instructions reproduced above, it had to be treated as a general vacancy in that year and the reservation had to be carried forward to subsequent three recruitment years. The vacancy was filled by appointment of a general category candidate Ms. Usha Mehra (Now Hon'ble Ms. Justice Usha Mehra) on 22nd April 1980.

(45) The next recruitment was in the year 1982. Three vacancies were advertised on 27th January 1981 as one reserved for scheduled tribes and two vacancies as unreserved. These vacancies were at Point No.5, 6 and 7 on the roster. Although vacancy at Point No.5 on the roster was unreserved but it was treated as reserved for scheduled tribe in lieu of vacancy at Point No.4 which had been filled by appointment of a candidate of general category in 1980. The vacancy at Point No.6 is unreserved. The vacancy at Point No.7 though reserved for scheduled castes was treated as unreserved since out of the three posts advertised only one could be treated as reserved vacancy because of 50% limit regarding reservation in accordance with the instructions on the subject. Against the two vacancies at Points 6 and 7 Mr. J.B. Goel and Mr. B.S. Chaudhary, candidates from general category were appointed as ADJ's on 11th November 1982. No appointment was,however, made against vacancy at Point No.5 which by application of carry forward rule was treated as reserved for scheduled tribes candidate, due to non availability of scheduled tribes candidate. According to the aforesaid Brochure only the year in which the recruitment is made has to be counted and not the year in which no recruitment is made for purpose of applying carry forward rule. Thus, 1981 as claimed by the petitioner cannot be taken as first subsequent recruitment ear for purpose of applying carry forward rule as in that year no recruitment had been made. In the advertisement dated 27th January 1981 it was rightly not stipulated that in the absence of availability of scheduled tribes candidate the said vacancy would go to a general candidate for the reason that it was the first attempt in the first subsequent recruitment year and as per provisions of Chapter Viii above, it had to be advertised for recruitment in the first attempt only from a candidate from scheduled tribes community.

(46) The next advertisement was on 17th May 1983 for purposes of filling one vacancy as reserved for scheduled tribes with the stipulation that the general candidates wer e also eligible to apply and if no scheduled tribes candidate was available only then the candidate from general category would be selected for being considered for appointment to the Service. Thus, this has to be treated as the second attempt in the first subsequent recruitment year, by applying carry forward rule, to fill the vacancy reserved for scheduled tribes candidate. Again, no candidate belonging to scheduled tribes was found fit. The Full Court as per decision dated 19th December 1993 decided that the post should be treated as deserved and on dereservation one candidate may be recommended for appointment to the Service. Accordingly, on de-reservation Ms. Sharda Aggarwal, a candidate belonging to general category was appointed against that post on 7th June 1985. In view of the above, 1983 cannot be taken as second subsequent recruitment year. It is the second attempt in first subsequent recruitment year.

(47) The next advertisement was issued on 21st May 1985 for 4 vacancies, 2 reserved (one each for scheduled tribes and scheduled castes) and 2 as unreserved. These vacancies were on Points 8, 9, 10 and 11 of the roster. The vacancy at Point No.8 though unreserved was treated as reserved in lieu of Point No.4 which was filled in by general candidate in 1980 and then transferred to Point No.5 (unreserved). The vacancy at point No.5 was treated as reserved for scheduled tribe which again could not be filled in 1982 due to non availability of suitable scheduled tribes candidate but was filled in the second attempt by appointment of a general category candidate Ms. Sharda Aggarwal on 7th June 1985. The vacancy at Point No.9 though unreserved was also treated as reserved in lieu of Point No.7 which was filled in by general candidate in the year 1982 as stated above. The vacancies at Point Nos. 10 and 11 were unreserved and were treated as such. Against vacancies at Point No. 10 and Ii two candidates belonging to general category were recommended. They were Mr. H.R. Malhotra and Mr. J.P. Singh who were appointed on 26th November 1985. Against vacancy at Point No.9, referred to above, Mr. Padam Singh, a candidate belonging to scheduled caste community was appointed. No appointment was,however, made against vacancy at Point No.8. The advertisement issued in May 1985 did not stipulate that vacancy reserved for scheduled tribes will be filled by appointment of a scheduled castes candidate or appointment of a candidate from the general category since that was first attempt in second subsequent recruitment year. The vacancy reserved for scheduled tribes could be exchanged with scheduled castes candidate only in the third year. From the aforesaid narration of facts, it seems clear that 1985 was not the third subsequent recruitment year by applying the provisions contained in the Brochure which have been reproduced above. There was only one vacancy reserved for scheduled caste candidate against which person first on the panel, namely, Mr. Padam Singh was appointed. At that stage the vacancy reserved for scheduled tribe could not be exchanged with vacancy reserved for scheduled castes.

(48) In view of the aforesaid position there is no illegality in issue of advertisement dated 18th October 1985 and on the same basis we also do not find any illegality in issuing subsequent advertisements impugned by Mr. Malkhan Singh in his writ petition. We do not find that the carry forward rule has been violated by the respondents'in any manner and thus the decision of the Supreme Court in the case of Arti Rai Chaudhary v. Union of India & Ors. : (1974)ILLJ239SC , relied upon by Mr. Malkhan Singh has no applicability. On the aforesaid facts and circumstances the question of declaring that the petitioner ought to have been considered for appointment against the post reserved for scheduled tribes does not arise.

(49) For the aforesaid reasons, we do not find any substance in the writ petitions of any of the five petitioners. The writ petitions are, accordingly, dismissed leaving the parties to bear their own costs.