JUDGMENT 1. By means of advertisement, published on February 22, 1989, the Deputy Director of Education, Agra invited applications for appointment of junior clerks against 40 vacancies. Provision for reservation in favour of Scheduled Castes/scheduled Tribes in accordance with the Government Order was also provided for by this advertisement. 2. An information was also sent to this Employment Exchange regarding these vacancies. More than 7,000 candidates including the three petitioners applied before the Deputy Director of Education in pursuance of the aforesaid advertisement. As the post of junior clerk is a post, which requires knowledge of typing, typing test was held in October and November, 1989 in which more than 7,000 candidates including the petitioners appeared, as a consequence of which 700 candidates including the petitioners were declared successful in type-test and were called for interview before the Selection Committee. Interview was held by Selection Committee from December 14, 1989 to December 21, 1989. In this manner entire selection proceedings have been completed by December 21, 1989 and only a final result was to be declared. However, before the declaration of the result a telex, dated December 27, 1989 was sent by the Secretary to the Chief Minister, U. P. to all the District Magistrate, all Divisional Commissioner, U. P., all Principal secretaries/secretaries, U. P., all Principal, Heads of Departments, U. P. directing that excepting the appointment of Scheduled Castes and Scheduled Tribes no appointment shall be made in any department in the state of U. P. By this telex recruitments of Scheduled Castes and scheduled Tribes candidates have been allowed and appointments of every body else have been prohibited. Relevant extracts from the telex is quoted below : "mukhya Mantriji has been informed that a large number of persons are being recruited by various State Government offices throughout the state in addition to the recruitment of the SC/st. Mukhya Mantriji wishes to take stock of the entire situation, arising from such recruitments. Accordingly he has desired that excepting the recruitment of tile SC/st through the special recruitment drives, no other recruitments should be made by any officer at any level and at any place in the State. " 3. The telex further requires that head of departments will send a detail to the Government for information. In persuance of the. Accordingly he has desired that excepting the recruitment of tile SC/st through the special recruitment drives, no other recruitments should be made by any officer at any level and at any place in the State. " 3. The telex further requires that head of departments will send a detail to the Government for information. In persuance of the. telex, director of Education issued an order, dated December 30, 1989, directing the Deputy Director of Education not to make any appointment of any candidate excepting the candidates of SC/st. 4. Petitioners, who claimed to be the unemployed educated and duly registered with the Employment Exchange, have filed this writ petition challenging the telex and consequential order issued by the Director of education. ' On October 4, 1990 this petition was directed to be listed on january 15, 1990 on which date it was to be disposed of finally. During this period the State was to file counter-affidavit. Thereafter ion January 19, 1990 ten days and no more time was granted to the learned standing counsel for filing counter-affidavit and the case was directed to be listed on January 30, 1990. The case was taken up again on February 9, 1. 990 when the writ petition was directed to be listed on February 26, 1990. Ultimately on March 24, 1990 the case was taken up for hearing but neither any counter-affidavit has been filed by the State nor any record has been produced before us. We have, as such, no alternative but to decide the case without any counter-affidavit on record from the State. Learned counsel for the petitioners has made following three submissions before us : (i) After selecting process has started, right accrued to the petitioners and it is not open to the State Government to stop selection / appointment, because Government cannot interfere with the right of others unless there is some rules of law, which authorise their acts ; (ii) The telex is not an order of the State Government and the chief Minister or his Secretary does not have the power to stop the selection and appointment ; and (iii) Permitting the appointment of SC/st candidates and prohibiting all other appointment is discriminatory and arbitrary. 5. Government has the power to determine how many appointments are to be made and it is open to the Government not to fillup a vacancy even after advertisement. 5. Government has the power to determine how many appointments are to be made and it is open to the Government not to fillup a vacancy even after advertisement. A person, who has applied in persuance of the advertisement cannot claim to be appointed to the post applied for and principle of promissory estoppel will not apply. Supreme Court in the State of Ear-yam v. Subhash Chander Marwaha and ot A. I. R. 1973 S. C. 2216. iers, has laid down that "one fails to see how the existence of vacancies gives a legal right to a candidate to be selected for appointment. The examination is for the purpose of showing that a particular candidate is eligible for consideration. The selection for appointment comes letter. It is open then to the Government to decide how many appointments shall be made. The mere fact that a candidate's name appears in the light will not entitle him to a mandamus that he be appointed. " 6. Same principle was reiterated by the Supreme Court in Jatinder kumar and others v. State of Punjab and others(2), by holding that, "but it is open to the Government to decide how many appointments will be made. The process for selection and selection for the purpose of recruitment against anticipated vacancies does not create a right to be appointed to the post which could be enforced by a mandamus. '' "the notification made by the Board in this ease was only an invitation to candidates possessing specified qualifications to apply for selection for recruitment for certain posts. It did. not hold out any promise that the selection would be made or if it was made the selected candidates would be appointed. The candidates did not acquire any right merely by applying for selection or for appointment after selection. " Government has the power to fill up or not to fill up any vacancy even after the advertisement unless there is some express or implied prohibition by law. But if the Government's Order is arbitrary, mala fide, violative of fundamental rights or other provision of the Constitution or any other law, courts can always interfere and set aside such orders. We, as such, cannot accept the first submission of the petitioners. But if the Government's Order is arbitrary, mala fide, violative of fundamental rights or other provision of the Constitution or any other law, courts can always interfere and set aside such orders. We, as such, cannot accept the first submission of the petitioners. Executive action of the State Government is required to be taken in the name of the Governor by Clause (1) of Article 166 of the Constitution of India. Clause 1985 (1) S. C, Cases 122,deals with the authentication and Clause A. I. R. 1963 S. C. 395. of this Article empowers making of the rules of the business for exercise of the Governmental powers. The decision of the Chief Minister or the council of Ministers cannot be said to be an order of the State Government unless expressed to be taken in the name of the Governor. Supreme Court in Bachhittar Singh v. State of Punjab and another (3), has laid down that: "the business of State is complicated one and has necessarily to be conducted through the agency of a large number of officials and authorities. The Constitution, therefore, requires and so did the rules of Business framed by the Rajpramukh of Pepsu provide, that the action must be taken by the authority concerned in the name of the Rajpramukh. It is not till this formality is observed that the action can be regarded as that of the State or here, by the rajpramukh. We may further observe that, constitutionally speaking the Minister is no more than an adviser and that the head of the state, the Governor or Rajpramukh is to act with the aid and advice of his Council of Ministers. Therefore, until such advice is accepted by the Governor whatever the Minister or the Council of minister may say in regard to a particular matter does not become the action of the State until the advice of the Council of Ministers is accepted or deemed to be accepted by the Head of State. " 7. In Kedar Nath Bam v. State of Punjab and otters A. I. R. 1979 S. C. 221., Supreme court has reiterated the same principle by holding that an order of the chief Minister if not expressed in the name of the Governor cannot be said to be the order of the State Government. " 7. In Kedar Nath Bam v. State of Punjab and otters A. I. R. 1979 S. C. 221., Supreme court has reiterated the same principle by holding that an order of the chief Minister if not expressed in the name of the Governor cannot be said to be the order of the State Government. The relevant extract from this decision of the Supreme Court is quoted below : "at any rate, the earlier order of the Chief Minister, dated October 13, 1958 could not give a rise to any right in favour of the appellant as it was not expressed in the name of the Governor as required by article 166 of the Constitution and was not communicated to the appellant. " 8. In State of Kerala v. A. Lakshmikutty and others A. I. R. 1987 S. C. 331, following its earlier decision, the Supreme Court has upheld the same position. Relevant passage from this judgment is extracted, below : "whatever the Council of Ministers may say in regard to a parti cular matter does not become the action of the State Government till the advice of the Council of Ministers is accepted or deemed to be accepted by the Head of the State. Before an advice of the Council of Ministers amounts to an order of the State Government, there are two requirements to be fulfilled, namely, (1) the order of the State government had to be expressed to be in the name of the Governor as required by Article 166 (1) and (2) it has to be communicated to the persons concerned. See State of Punjab v. Sodhi Sukhdev Singh 1961 (2) S. C. R. 371: A. I. R. 1961 S. C. 493 and Bachhittar Singh v. State of Punjab and others, A. I. R. 1963 S. C. 395.. It must therefore follow that unless and until the decision taken by the council of Ministers on January 30, 1985 was translated into actions by the issue of a notification expressed in the name of the Governor as required by Article 166 (1) it could not be said to be an order of the State Government. " It may not be necessary that every executive decision requires a formal expression. " It may not be necessary that every executive decision requires a formal expression. However, when such a decision is to affect any person it is necessary that either it should be expressed to be taken in name of the Governor in accordance with Clause (1) of Article 166 or in accordance with Rules of Business framed by the Government under clause (3) of the said Article. In case the executive decision has not been given formal expression in accordance with Clause (1) of Article 166, it does not become bad but only takes away the immunity from proof. In such a situation it is open to the Government to prove before the court. If a challenge is made, either by filing an affidavit or by producing Government record to show that order is that of the State Gov eminent. 9. The impugned telex has been sent by the Secretary to the Chid minister on the basis of oral order of the Chief Minister. It has not been expressed in the name of the Governor as required by Clause (1) of article 166 of the Constitution. The question as to whether the Chief minister or his Secretary has the power under law to pass such an order prohibiting all the appointments except those of SC/st could be proved by the Government by means of affidavit or by producing record. No such affidavit or record has been placed before us by the State Government to prove that the Chief Minister or his Secretary has such a power the impugned telex, as such, cannot be said to be an order of the State government. 10. The telex and the consequential order of the Director of Education are also violative of the Article 16 of the Constitution of India. Article 16 (1) lays down that there shall be equality of opportunity for as citizens in matters relating to employment or appointment to any office under the State and Clause (2) of the said Article prohibited discrimination on the ground of religion, race, caste, sex, descent, place of birth, residence or any of them in respect of employment under the State. Article 16 of the Constitution of India is quoted below ; "16. Article 16 of the Constitution of India is quoted below ; "16. Equality of opportunity in matters of public employment (1) There shall be equality; of opportunity for all citizens in matters relating to employment or appointment to any office under the State- (2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State. (3) Nothing in this Article shall prevent Parliament from making any law prescribing in regard to a class or classes of employment or appointment to in office (under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory) prior to such employment or appointment. (4) Nothing in this Article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any background class of citizens which, in the opinion of the State, is not adequately represented in the services under the State. (5) Nothing in this Article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging, to a particular denomination. " From the perusal of the telex, it is clear that recruitment of candidates of SC/st have been permitted only on the basis of their caste. If State has the power to stop appointment then such a power should have been exercised without making any discrimination on - the basis of caste, religion etc. Such a discrimination only on the basis of caste is not permissible in view of the provision of Clause (2) of Article 16 of the constitution of India. It may be mentioned that it is open to the State to make provision for reservation for appointment in favour of any backward class (of citizens, which is not adequately, represented in "the State services. However, the provision for reservation under Clause (4) of article 16 of the Constitution does not authorise the State to prohibit the appointment of all other candidates except SC/st. However, the provision for reservation under Clause (4) of article 16 of the Constitution does not authorise the State to prohibit the appointment of all other candidates except SC/st. It is, such a treatment, which has been prohibited by Clause (2) of Article 16 of the constitution. Nothing has been placed before us to justify as to why the appointment of SC/st have been permitted to be made and appointments of persons belonging to all other religion and caste have been prohibited. The telex issued by the Secretary to the Chief Minister is absolutely arbitrary and violative of Article 16 of the Constitution of India. 11. It may be that ban imposed by the telex against the appointments of candidates other than SC/st may be lifted by the Government after some time ; but that cannot prevent us from granting relief to the petitioners who have been unjustly discriminated against. Right to equality is a fundamental right and its infringement even for a short period cannot be allowed. The effect of the telex is that candidates of SC/st will be come senior to those who may be appointed later on after ban is lifted by the Government even though some of them might have appeared in same selection process and could not be immediately appointed on account of telex. All this has been done on the basis of caste only. It is such a treatment, which is prohibited by Article 16 (2) of the Constitution of India. 12. We accordingly allow the writ petition with costs and grant the telex, dated 27/12/1989 and the order of the Director of Education, dated 30/12/1989 and direct the respondents to proceed with the selection and make the announcement of result in accordance with law. Petition Allowed.