JUDGMENT 1. - This writ petition is directed against the order dated 16th August, 1989 (Annex.2) on record in the matter of 'the ban on the reservation in direct recruitment to vacancies under the Government' issued by the Department of Personnel A-II Government of Rajasthan under signatures of the Special Secretary D.O.P. to the Government of Rajasthan. 2. Briefly stated the facts of the case are that a notice inviting the applications issued by the Rajasthan Public Service Commission to recruit the candidates for appointment as Sub- Inspectors Police and Platoon Commanders R.A.C. In all 75 vacancies were advertised out of which 17 were reserved for Scheduled Castes and 16 were reserved for Scheduled Tribes. Thus as against 33 reserved vacancies 42 vacancies were meant for the candidates belonging to general category. The petitioners herein who are 5 in number appeared for this recruitment along with others and they were all candidates belonging to general category and were placed in the select list down below serial No.42 as general category candidates. In this recruitment only 15 candidates were selected from amongst the SC and ST candidates and out of these 15 candidates 3 were higher in merit and the rest of the 12 were low in the merit. The petitioner except Shri Rai Singh Beniwal i.e. petitioner No.2 had been medically examined. Since only 15 candidates were selected from amongst SC/ST candidates, the reserved vacancies for which the SC/ST candidates were not available had to be filled by the candidates belonging to general category in terms of Rule 7 of the Rajasthan Police Subordinate Service Rules, 1974 as also the Rajasthan Police Subordinate Service Rules, 1989 and also in terms of the note which was mentioned below para 3 of the Information Bulletin issued by the R.P.S.C. which is on record as Annex.] The contents of this note are reproduced as under:Hindi Matter 3. Despite this the appointments were not given to the petitioners and the candidates belonging to general category who were down below serial No.42. Their claim is that they should have been considered for the appointment on the basis of their merit position against the vacancies which were reserved and for which the suitable candidates belonging to SC/ST had not become available. Their claim is that they should have been considered for the appointment on the basis of their merit position against the vacancies which were reserved and for which the suitable candidates belonging to SC/ST had not become available. These candidates were not considered for appointment on the basis of the order dated 16th August, 1989 (Annex.2) because it was provided in this order that there will be a ban on reservation of vacancies even if the candidates belonging to the SC/ST are not available. At this juncture this writ petition was filed on 2nd July, 1990. On 5th July, 1990, a show cause notice was issued as to why the writ petition may not be admitted and disposed of. Shri M.I. Khan, Addl. Advocate General and Shri K.S. Rathore, Addl. Govt. Advocate entered appearance on behalf of the respondents and a reply to the show cause notice was filed on behalf of respondents Nos. 1 and 2. The reply is based on the impugned order dated 16th August, 1989 and it has also been stated in the reply that the amendment was to be made in the rules and the Government was fully competent to pass the order dated 16th August, 1989. It is on this basis that the claim of the petitioners has been sought to be traversed in the reply filed on behalf of the respondents. On 31st August, 1990 when the matter came up before the Court, the Dy. Govt. Advocate. Shri B.K. Sharma was asked to let this Court know if at all any such amendment as was contemplated while issuing the order dated 16th August 1989 has been made even by now or not but finally it is not the case of the State that any amendment has been made as was contemplated in the order dated 16th August, 1989. 4. In this view of the matter it is clear that the order dated 16th August, 1989, on the face of it is inconsistent rather is in contravention of the provisions of Rule 7. 4. In this view of the matter it is clear that the order dated 16th August, 1989, on the face of it is inconsistent rather is in contravention of the provisions of Rule 7. Whether we apply Rule 7 of the 1974 Rules or we apply Rule 7 of the 1989 Rules, it has been dearly provided that in the event of non-availability of the eligible and suitable candidates amongst SC/ST as the case may be in a particular year the vacancies so reserved shall be filled in accordance with normal procedure and equivalent number of vacant posts shall be reserved in the subsequent year. The order dated 16th August, 1989 with the relevant part of Rule 7 of 1974 Rules and Rule 7 of 1989 Rules are reproduced side by side as under: "1974 Rules -7. Reservation of vacancies for Scheduled Castes and the Scheduled Tribes : (1) Reservation of vacancies for the Scheduled castes and the Scheduled Tribes shall be in accordance with the orders of the Government for such reservation in force at the time of recruitment i.e. by direct recruitment and by promotion. (2) The vacancies so reserved for promotion shall be filled in by Merit alone. (3) In filling the vacancies so reserved the eligible candidates who are members of the Scheduled Castes and the Scheduled Tribes shall be considered for appointment in the order in which their names appear in the list prepared for direct recruitment by the Commission, for posts falling in its purview and by the Appointing Authority in other cases and the Board or the Appointing Authority, as the case may be, in the case of promotees, irrespective of their relative rank as compared m i .h other candidates. (4) Appointments shall be made strictly in accordance with the rosters prescribed separately for direct recruitment and promotion. In the event of non-availability of the eligible and suitable candidates amongst Scheduled Castes and Scheduled Tribes, as the case may be, in a particular year, the vacancies so reserved for them shall be filled in accordance with the normal procedure and an equivalent number of additional vacancies shall be reserved in the subsequent year. In the event of non-availability of the eligible and suitable candidates amongst Scheduled Castes and Scheduled Tribes, as the case may be, in a particular year, the vacancies so reserved for them shall be filled in accordance with the normal procedure and an equivalent number of additional vacancies shall be reserved in the subsequent year. Such of the vacancies which remain so unfilled shall be carried forward to the subsequent three recruitment years in total and thereafter such reservation would lapse: Provided that there shall be no carry forward of the vacancies in posts or class/category/groups of posts in any cadre of Service to which promotions are made on the basis of merit along, under these Rules." 1989 Rules "7. Reservation of vacancies for the Scheduled Castes and the Scheduled Tribes: (1) Reservation of vacancies for the Scheduled Castes and the Scheduled Tribes shall be in accordance with the orders of the Government for such reservation in force at the time of recruitment i.e. by direct recruitment and by promotion. (2) The vacancies so reserved for promotion shall be filled in by seniority-cum-merit and merit. (3) In filling the vacancies so reserved, the eligible candidates, who are members of the Scheduled Castes and the Scheduled Tribes shall be considered for appointment in the order in which their names appear in the list prepared for direct recruitment by the Commission for posts falling in its purview and by the Appointing Authority in other cases and the Board or the Appointing Authority, as the case may be, in the case of promotion, irrespective of their relative rank as compared with other candidates. (4) Appointments shall be made strictly in accordance with the rosters prescribed separately for direct recruitment and promotion. In the event of non-availability of the eligible and suitable candidates amongst Scheduled Castes and Scheduled Tribes, as the case may be, in a particular year, the vacancies so reserved for them shall be filled, in accordance with the normal procedure and an equivalent number of additional vacancies shall be reserved in the subsequent year. Such of the vacancies which remain so unfilled shall be carried forward to the subsequent three recruitment years in total and thereafter such reservation would lapse." 5. Such of the vacancies which remain so unfilled shall be carried forward to the subsequent three recruitment years in total and thereafter such reservation would lapse." 5. In this view of the matter when the existing rules clearly provide that in want of eligible and suitable candidates from the reserved category the vacancies reserved shall be filled in in accordance with normal procedure, the correct course of action was to operate this rule in favour of the candidates belonging to general category whose names have been included even below serial No.42 as general /category candidates and they should have been considered and given appointment on the basis of their merit. The denial of such consideration and appointment on the basis of the order dated 16th August, 1989 is clearly unlawful and there is no lawful justification to deny appointments to them on the basis of this order dated 16th August, 1989. On perusal of this order dated 16th August 1989 itself would show that this order is contrary to the existing provisions of rules and it goes to the extent of saying that the necessary amendments in the Rules shall be made from the date of the issue of this order. Besides the fact that no such amendment has been issued till this date,the fact remains that the order dated 16th August, 1989 is an executive order and by no stretch of imagination, and executive fiat can undo the statutory rules made under proviso to Article 309 of the Constitution and I hold that this order dated. 16th August, 1989 is obviously and transparently, inconsistent and contrary to Rule 7 of the 1974 Rules as well as 1989 Rules. The action of the respondents in keeping the petitioners out of consideration for giving appointments on the post of Sub- Inspector Police/Platoon Commander R.A.C. on the basis of order dated 16th August, 1989 is perusal illegal and cannot be sustained in the eye of law; and such an order cannot be allowed to be acted upon and given effect to so as to erode the full effect and operation of the existing statutory provisions. 6. Learned counsel for the petitioner Shri K.K. Sharma who had argued the matter on 12th September, 1990 in the Court cited AIR 1990 SC.1233 in the case of N.T. Bevin Ketti v. Karnataka Public Service Commission . 6. Learned counsel for the petitioner Shri K.K. Sharma who had argued the matter on 12th September, 1990 in the Court cited AIR 1990 SC.1233 in the case of N.T. Bevin Ketti v. Karnataka Public Service Commission . In this case it has been held in para 11 that where advertisement is issued inviting applications for direct-recruitment to a category of posts and the advertisement expressly states that the selection shall be made in accordance with the existing rules or Government orders and if it further indicates the extent of reservation in favour of various categories, the selection of candidates in such a case shall be made in accordance with the existing Rules and the Government orders. The candidates who apply and undergo the written or viva voce test acquired a vested right for being considered for selection in accordance with the terms and conditions contained in the advertisement unless the advertisement itself indicates a contrary intention and further that a candidate has a right to be considered in accordance with the terms and conditions set out in the advertisement as his right is created on the date of the publication of the advertisement even if he has no absolute right in the matter. In the instant case, I find that there is no provision to impose such a ban on the reservation as has been done by the impugned order dated 16th August 1989 and the existing Rules clearly provide that in case the eligible and suitable SC/ST candidates are not available, such reserved vacancies will be made use for general category candidates. No other reason has been shown to deny the appointments to the present petitioners and the respondents have failed to show any legal sanction for imposition of such a ban on the de-reservation and to deny the appointments to the petitioners belonging to the general category. 7. The outcome of the aforesaid discussion and adjudication is that I hold the order dated 16th August, 1989 issued by the Department of Personnel to be illegal and the same is struck down as such. 7. The outcome of the aforesaid discussion and adjudication is that I hold the order dated 16th August, 1989 issued by the Department of Personnel to be illegal and the same is struck down as such. I further hold that the petitioners are entitled to be considered and appointed in terms of Rule 7 of 1974/1989 Rules for the post of Sub-Inspector of Police/Platoon Commanders R.A.C.in accordance with their merit position against the vacancies which were reserved for SC/ST candidates for which the eligible and suitable candidates have not become available after the recruitment held by the R.P.S.C. This writ petition is, therefore, allowed, the order dated 16th August, 1989. Annexure-2 is quashed and set aside and it is directed that the case of the petitioners shall be considered for appointment on the post of Sub-Inspector of Police/Platoon Commanders R.A.C. against such reserved vacancies for which eligible and suitable candidates have not be- come available and while doing so due regard shall be given to the merit position of the petitioners and other candidates of general category notwithstanding the fact that the other candidates belonging to general category have not approached this Court by way of writ petition. The respondents would take appropriate steps ignoring the order dated 16th August, 1989 in accordance with Rules to implement the directions given here in above within a period of two months from today. The writ petition is accordingly allowed as indicated above. No order as to costs.Petition allowed. *******