JUDGMENT C.S.P. Singh, J. - The three petitioners in this case are Assistant Engineers in the employment of State of Uttar Pradesh U.P. Public Service Commission by means of an advertisement invited applications from Engineering Graduates to fill fifty-two posts in permanent cadre and 513 temporary posts in the Engineering Service of the State. The candidates to fill in these posts were to be selected by means of a written test to be held by the U.P. Public Service Commission. Principles regulating selection for recruitment to permanent and temporary posts of Assistant Engineers in various States Engineering Services had been earlier laid down in a Government order of the 7th of December 1961. The petitioners appeared at the examinations In August/September 1965, and the U.P. Public Service Commission thereafter published a list of 117 general and three scheduled castes candidates for the post of Assistant Engineer (Civil) in order of merit. The name of petitioner No. 1 appeared at serial No. 57, and that petitioner No. 2 at serial No. 64 and that of petitioner No. 3 at serial No. 61. In as much as there were only fifty two permanent vacancies and the petitioners did not come within the first fifty two candidates, they were not appointed as permanent Assistant Engineers in that year, on the list as published. 2. It is alleged that Mahabir Prasad, who stood 41st in order of merit in the examination had been selected in a similar competition in 1964 and was appointed to a permanent post on the basis of the 1964 approved list. Another candidate Roshan Lal Garg who stood 17th in the order of merit died soon after the publication of the result. On 13-9-1969, the State Government published a list of candidates to be appointed against 52 permanent vacancies including the three vacancies reserved for scheduled caste candidates. Eighteen persons out of the list of candidates approved for permanent appointment did not join the post, and as such it is alleged that eighteen vacancies were left unfilled. These vacancies included the vacancies caused by Mahabir Prasad appointed on the basis of 1964 selection and Roshan Lal Garg having died. Eighteen persons out of the list of candidates approved for permanent appointment did not join the post, and as such it is alleged that eighteen vacancies were left unfilled. These vacancies included the vacancies caused by Mahabir Prasad appointed on the basis of 1964 selection and Roshan Lal Garg having died. It is asserted that in view of the fact the eighteen vacancies remained unfilled, the petitioners were clearly entitled to be appointed as permanent Assistant Engineers, inasmuch as they were placed at serial numbers 57, 61 and 64 in the approved list. The petitioners thereafter approached the authorities for being appointed as permanent Assistant Engineers against the posts not already filled up, and they were assured that they would be appointed as such. A representation was also sent by the petitioners to the State Government, but that was rejected on 14-7-1971. Thereafter the petitioners approached the Minister for P.W.D. and made fresh representations. The State Government referred the matter to the U.P. Public Service Commission, stating that though it had been the policy of the State Government to carry forward unfilled permanent vacancies of one year to that of a subsequent year, the State Government was willing to appoint the petitioners against the permanent post of 1971, in case the Public Service Commission approved of it. The Public Service Commission, however, stated that post advertised in 1971 cannot be given to candidates other than those approved by it for 1971-72, and on the basis of this opinion, the State Government rejected the representation of the petitioners by its order dated 19-10-1972. The petitioners have challenged this order of the State Government and prayed for a direction that they be appointed as permanent Engineers against the vacancies of 1965. At one stage, the petitioners urged that the seniority be fixed on the basis that they stood appointed in 1965. In view of the fact that the Assistant Engineers, who had been appointed subsequent to 1965 in a permanent capacity, had not been made parties to the petition, counsel for the petitioners stated that he could not claim seniority as against the persons who had already been appointed subsequent to 1965 in a permanent capacity. In view of the fact that the Assistant Engineers, who had been appointed subsequent to 1965 in a permanent capacity, had not been made parties to the petition, counsel for the petitioners stated that he could not claim seniority as against the persons who had already been appointed subsequent to 1965 in a permanent capacity. There was considerable dispute between the parties as to the number of vacant posts which existed in 1965, but it is not necessary to resolve this controversy, as even if the contention on behalf of the respondents is taken to be correct, the petitioners would be entitled to permanent posts in case their contention on merits is upheld. 3. Counsel for the petitioners has contended that the criteria for appointment to permanent posts is that which is laid down in the Government order dated 7-12-1961 which runs asunder:- "Successful candidates in order of merit will subject to the relevant rules regarding physical fitness and other matters be appointed directly on probation against vacant permanent posts and those following will be appointed against temporary posts." 4. It is urged that inasmuch as sufficient number of vacancies still existed in respect of posts advertised, for 1965, on account of a large number of candidates not having joined, the petitioners were entitled to be made permanent. Counsel for the State on the other hand has contended that the mere fact that some candidates did not join, did not give any right to the petitioners, inasmuch as the petitioners were not out of the first fifty two candidates successful at the examination. It has also been urged that the State Government was entitled to carry forward the vacancy to the subsequent years, and as the petitioners had not appeared in any subsequent examination, they were not entitled to any relief. I am unable to accept the contention advanced on behalf of the State. It is not disputed that the matter of appointment to 1965 vacancies was governed by the Government Order dated 7-12-1961. This being so, inasmuch as 52 permanent vacancies had been advertised, candidates had to be appointed against these vacant permanent posts in order of merit. Now, the mere fact that the successful candidates who stood higher in order of merit did not join does not mean that as soon as those candidates succeeded in the examination, the vacant permanent posts were filled up. Now, the mere fact that the successful candidates who stood higher in order of merit did not join does not mean that as soon as those candidates succeeded in the examination, the vacant permanent posts were filled up. In the event of a candidate not joining, the vacancies still subsists, inasmuch as the post remain unfilled and the vacancy continues. This being so, the petitioners were entitled to appointment in order of merit to these vacant permanent posts. 5. The contention that the State Government could carry forward the post to a subsequent year is also not sound. The Government Order dated 7-12-1961 does not sanction such a procedure. The services of the petitioners are governed by Rules framed by the Secretary of State in Council in exercise of powers conferred by Civil Services (Classification, Control & Appeal) Rules, 1930 known as the Rules regulating appointment and the condition of services of U.P. Service of Engineers Class II Irrigation Branch). Rule 4 of these Rules runs as under :- "4. The sanctioned strength of the cadre is Strength of cadre. Assistant Engineers..........72 Provided that, subject to the provisions of Rule 40 of the Civil Services (Classification, Control and Appeal) Rules, 1930, the Government may : (i) leave unfilled or hold in abeyance any post without thereby entitling any member of the service to compensation, (ii) increase the cadre by creating permanent or temporary posts from time to time as may be found necessary." It will be seen that this Rule confers power on the Government to leave unfilled or hold in abeyance any post without entitling any member of the service to compensation. In order to find out as to whether the State Government has taken any such decision, time was taken by the Standing Counsel to file an affidavit. An affidavit has been filed on 15-10-1973 by one B. Ram, Upper Division Assistant in Public Works Section 3 U.P. Civil Secretariat, Lucknow. In Paragraph 3 of this Affidavit, it is stated that no order had been passed by the Governor deciding that the aforesaid vacancy in abeyance, and that the existence of such a decision was inferred from the fact that the administrative practice of the State Government had been to fill the left over vacancy in a particular year in subsequent years. I am of the view that the existence of such an administrative practice on behalf of the State Government, could not amount to a decision as contemplated by rule 4. In my view Rule 4 postulates a positive order by the Governor of keeping vacancies unfilled, and mere administrative practice would not amount to an order, so as to satisfy the requirement of Rule 4. This apart, this Rule does not sanction carrying forward vacancies to subsequent years. The petitioners as such were entitled to be appointed as permanent Assistant Engineers against the vacancies of 1965. 6. The writ petition is allowed. The order of the State Government rejecting the representations of the petitioners are quashed, and the State Government is directed to appoint the petitioners as permanent Assistant Engineers. They will not, however, be entitled to seniority over permanent Assistant Engineers already appointed in a permanent vacancy. There shall be no order as to costs.