S. D. SHAH, J. ( 1 ) THIS group of petitions once again bring to the surface the un-ending conflict between the direct recruits and promotees in Gujarat Engineering Service Class I and Class II. This conflict has its deep-rooted cause in unfortunate un-equal prescription of quota by statutory recruitment rules providing initially one post for direct recruit against three for promotees which further came to be reduced to 1 : 4 by amendment of statutory rules. This permissible un-equal treatment brings an element of discontent amongst fresh graduates inasmuch as seats allocable to them in Engineering Services are nominal compared to their counter-part i. e. promotees who get the major chunk of the available seats. Second Cause of this conflict was proviso of Rule 3 prior to its amendment which provided for lapsing of vacancies meant for direct recruits on their non-availability in a recruiting year giving rise to discontent amongst fresh graduates in getting berth in Engineering Service. Third Cause which contributed to the discount of direct recruit was provided by the Gujarat Public Service Commission when it held the second examination for direct selection to the post of G. S. E. Class I and Class II in December 1980 and third examination in February 1982 results whereof were declared in September 1981 and September 1983. L. V. Ashra v. G. P. S. C. ( 2 ) L. V. Ashra v. G. P. S. C. (Spl. C. A 3820/81 and 5381 - D/- 5-11-84) was thus the first case in the history of litigation of Gujarat Engineering Services in this Court. The Commission had fixed minimum qualifying marks for written as well as viva-voce test. Those candidates who did not secure minimum qualifying marks at viva-voce test were not included in the select-list despite their very good performance at the written test and this action of the Commission gave rise to the first round of litigation in this Court. The Commission had fixed minimum qualifying marks for written as well as viva-voce test. Those candidates who did not secure minimum qualifying marks at viva-voce test were not included in the select-list despite their very good performance at the written test and this action of the Commission gave rise to the first round of litigation in this Court. ( 3 ) THE Division Bench of this Court found that the method adpoted by the Gujarat Public Service Commission in preparing the merit list fixing qualifying marks of viva-voce test and in excluding from the merit list the candidates who have not obtained minimum qualifying marks in viva-voce test was arbitrary unreasonable and unjustified and therefore the Court found that though at that stage entire selection cannot be upset the ends of the justice would be met by directing the Commission to revise the merit list on the basis of aggregate marks in the written as well as viva-voce test ignoring the concept of minimum qualifying marks in viva-voce test. It was further directed that after revising the merit list appropriate recommendation shall be made to the State Government and if the petitioners were entitled to appointment to the posts in question on the basis of inclusion of their names in the merit list such appointments shall be given to them by the State Government. The State Government was also directed to give such persons appropriate seniority in accordance with their rank in the merit list and if necessary it was also directed that they should be given deemed date of appointment without any monetary benefits. ( 4 ) THE aforesaid directions given by the Division Bench were carried out by the Gujarat Public Service Commission and the Commission revised the merit list prepared on the basis of results of examinations held in December 1980 and February 1982 Pursuant to aforesaid direction the Gujarat Public Service Commission published revised result in the Government Gazette on 3-4-1986 whereby 12 candidates were included in the select-list whereas 11 candidates were included in the wait-list for appointment to Class I posts of Gujarat Service of Engineers. V. V. Brahmakshariya v. State of Gujarat ( 5 ) THE preparation of revised merit list pursuant to the Division Benchs directions gave rise to a fresh round of litigation in this Court which came to be decided in the case of V. V. Brahmakshatriya v. State of Gujarat ( 1990 (1) GLH 289 ). The contention of the petitioners before the court was that preparation of revised list by the Commission was not in accordance with the quota rule. The bone of contention before the Court in the said litigation was that the posts which were available have not been allocated to the direct recruits in accordance with the quota rules and promotees have been given appointment in excess of their quota. It was also contended before the Court in the said group of petitions that the posts which ought to have been legitimately taken into consideration as vacant posts were not taken into consideration and that such posts if taken into consideration would increase the allocable posts for direct recruits. ( 6 ) JUSTICE R. C. Mankad (as he then was) decided the case of V. V. Brahmakshatriya and Others. The following propositions were laid down by the Court: (i) The quota rule has to be enforced with reference to the vacancies in all posts-whether permanent or temporary -included in the sanctioned strength of the cadre. It was not correct to confine the application of quota rule only to the permanent posts and some of the temporary posts. The Government was accordingly directed to take into consideration: (a) vacancies in permanent posts; (b) in temporary posts whether newly created or existing; (c) vacancies on account of retirement; (d) vacancies on account of officers sent on deputation to other departments and corporations for reasonably long period. The Government was accordingly directed to take into consideration: (a) vacancies in permanent posts; (b) in temporary posts whether newly created or existing; (c) vacancies on account of retirement; (d) vacancies on account of officers sent on deputation to other departments and corporations for reasonably long period. (ii) The select-list of 8/09/1981 was revised by the Gujarat Public Service Commission under the directions given in L. V. Ashras (supra) case Such revision will have retrospective effect in the sense that it will date back to the date on which 1981 list was published i. e. 8/09/1981 If the revised select-list has only prospective effect the exercise of preparing it was meaningless because the result of the next examination has already been declared on 21/09/1983 Therefore the State Government will have to set back the clock and for proper application of quota rule it was required to consider the situation as it prevailed in the year 1981 and 1982-83 (iii) The list which was revised by the Gujarat Public Service Commission pursuant to directions given in Ashras case were required to be operated and it was held that the State Government cannot render the decision of the Court nugatory by taking up the plea that the result of the next examination was declared in September 1983 and therefore the select-list prepared pursuant to the December 1980 examination was not required to be operated (iv) Un-amended Rule 3 will apply so far as the select-list of 1981 is concerned and amended Rule 3 so far as select-list of 1983 is concerned Under Circular No PSC-1078-7241-G-II dated 4/04/1979 issued by the Government of Gujarat in General Administration Department select-list prepared by the Commission on the basis of the competitive examination would remain in force till the result of the next examination is declared Therefore the select-list prepared by the Commission in September 1981 would remain in operation till September 1983 and the select-list prepared in September 1983 till declaration of the result of the next competitive examination (v) The revised select/waiting list prepared by the Commission has to be implemented and appointments by direct selection of the candidates whose names appeared in the select-list have to be made as per the quota rule Candidates who were on the waiting list were also selected on merit by the Commission and they were available for appointments by direct selection Therefore on allocable posts the candidates whose names appeared in the select/waiting list will have to be appointed The State Government cannot refuse to implement the revised select/waiting list on the ground that candidates on the waiting list have no right (vi) However the picture regarding available vacancies was not clear The State Government therefore shall have to work out the vacancies in each of the aforesaid years and it shall have to apply quota rule If the petitioners were entitled to appointment as per the quota rule they were to be given such appointments and in that case promotees who were appointed in the available posts were to be pushed back (vii) For the purpose of applying the quota rule from 1981-82 all vacancies set out in para (i) would be available The ratio to be applied for working out the vacancies available to the petitioners would be as prescribed by Rule 3 Under Rule 3 the ratio was 1:3 upto 21/05/1982 and 1:4 thereafter If the vacancies in the year 1982-83 are not sufficient to accommodate all the petitioners the remaining petitioners were to be considered for appointment in the vacancies allocable to direct recruits which arose between 4 and 21-9-83 the date on which the result of the next examination was declared (viii) The Court also directed to implement and operate the revised select list prepared by the Commission on the basis of result of examination held in February 1982 and since vacancies were available for making appointment by direct selection the respondents were directed to work out the figures and total vacancies as vacancies existing in the Irrigation Department (Water Resources Department) as well as Roads and Buildings Department in the year 1983-84 and subsequent years taking each year as a unit The respondents were also directed to consider the vacancies including the vacancies arising on account of creation of new posts. ( 7 ) THE aforesaid decision in Brahmakshatriyas case was challenged by the promotees by preferring Letters Patent Appeal No. 363/89 The Division Bench consisting of A. P. Ravani and J. U. Mehta JJ summarily rejected the said Letters Patent appeal since it was broadly in agreement with the reasons and conclusions arrived at by the learned Single Judge ( 8 ) BEING aggrieved by the aforesaid decision of the Division Bench confirming the judgment and order of the learned Single Judge Special Leave Petition is filed before the Supreme Court which is admitted and pending for consideration effect of Decision taken in the case of V. V. Brahmakshtriya ( 9 ) THE learned Single Judge of this Court emphatically and categorically ruled that it was not correct to confine the application of quota rule only to the permanent posts and some of the temporary posts only It directed the Government to take into consideration the vacancies in permanent posts temporary posts whether newly created or existing vacancies on account of retirement and those arising on officers being sent on deputation to other departments for reasonably long period. The State Government was directed to set back the clock and to consider the situation as it prevailed in the years 1981-82 and 1982-83 Therefore the State Government was required to lake into account vacancies-the permanent temporary and those arising from retirement and officers being sent on deputation for reasonably long period Starting from 1981-82 it was required to consider the application of quota rule on the basis of such vacancies Since this direction was to the State Government obviously the learned Single Judge did not think it fit to give further direction to revise the list to the Gujarat Public Service Commission The details of the vacancies as aforesaid were directed to be taken into account since 1981-82 for the purpose of applying quota rule Therefore the question of entitlement of successful candidates to all such vacancies which would fall to their share would arise However the State Government and the Gujarat Public Service Commission treated the direction given in the case of Brahmakshatriya as one to implement the revised select-list already prepared by them in the year 1986 and they did not re-revise the same inasmuch as the learned Single Judge has omitted to give specific direction in that behalf Therefore though the direct recruits succeeded in V. V. Brahma kshatriyas case in getting the increase in number of seats because of calculation of vacancies-permanent temporary and those arising from retirement and persons being sent on deputation such vacancies were not made available to the candidates for direct recruitment from 1981 inasmuch as no re-revision of select-list was undertaken That has given rise to the present petitions which may be classified into three groups i. e. : (i) Petitioners who appeared in January 1980 examination and whose results were declared on 10/07/1980; (ii) The petitioners who appeared in December 1980 examination and whose results were declared on 8/09/1981; and (iii) The petitioners who appeared in February 1982 examination and whose results were declared on 21-1-1983 ( 10 ) IN order to properly appreciate the rival contentions of the parties reference to necessary provisions of statutory Rules is necessary statutory Rules ( 11 ) IN the State of Gujarat the service of Engineers is governed by the Statutory Rules framed under the proviso (2) of Article 309 of the Constitution of India The Gujarat Service of Engineers is divided into g. S. E. Class I and G. S. E. Class II. The Statutory Rules framed by the Governor of Gujarat for Class I service are known as Executive Engineers (Civil) Gujarat Service of Engineers Class I Recruitment Rules 1979 The Statutory Rules for Gujarat Services of Engineers Class II are known as The Deputy Engineers (Civil) Gujarat Service of Engineers Class II Recruitment Rules 1979 Rules 2 and 3 of the said Rules as originally framed are more or less identical and they are reproduced in a tabular form hereunder: - G. S. E. Class I Rules G. S. E. Class II Rules -- 2 Appointment to the post of Executive 2. Appointment to the post of Deputy Engineers (Civil) in the Gujarat Engineers (Civil) Gujarat Service of Service of Engineers Class I shall be Engineers Class II shall be made made either: either: (a) by direct selection or (a) by direct selection; or (b) by promotion of a person of proved (b) by promotion of a person of proved merit and efficiency from amongst merit and efficiency from amongst the persons working as Deputy the persons working in the cadres Engineers (Civil) Gujarat Service of of Junior Engineers (Civil) Engineers Cl. II possessing the Supervisors (Civil) and Overseers minimum qualification of diploma in (Civil ). Civil Engineering or an equivalent qualification recognised by Government and having minimum service of seven years as Deputy Engineers (inclusive of the period spent on probation ). 3. The appointment by direct selection and promotion shall be made in the and promotion shall be made in the ratio of 1:3 (i. e. one by direct selection ration of (1:3 i. e. one by direct selection and three by promotion) and three by promotion): Provided that if in any year recruitment by direct selection is not made according to the prescribed ratio the shortfall of direct recruits shall lapse and shall not be carried forward in the subsequent year: After amendment of Rule 3 in 1982 3 The appointment by direct selection and promotion shall be made in the ratio of 1:4 (i. e. one by direct selection and four by promotion ). Proviso deleted (i) From the aforesaid position of the Statutory Rules which are in pari materia both for Class I and Class II of Gujarat Service of Engineers it becomes abundantly clear that the said Rules prescribe the mode of recruitment to Class I post of Executive Engineers (Civil) and to Class II posts of Deputy Engineers. The Class I and Class II posts are to be filled in from two sources namely from open market by direct selection and from amongst the departmental candidates by promotion of a person of proved merit and efficiency. Since the Rules provide two different sources from which the posts of executive Engineers (Civil) Class I and Deputy Engineers (Civil) Class II are to be filled in Rule 3 of the said Rules as it stood prior to its amendment in the year 1982 provided the ratio of 1:3 for recruitment to the posts of Executive Engineer as well as Deputy Engineer. The effect of such prescription of ratio was that if one Executive Engineer was appointed by direct selection three persons were required to be promoted on the posts of Executive Engineer. (ii) With effect from 21/05/1982 Rule 3 in both the categories of Rules stands amended. Thereby the ratio of direct recruit to promotee is altered to 1:4 i. e. 1 by direct selection and 4 by promotion. (iii) By virtue of proviso to Rule 3 as it stood prior to its amendment in the year 1982 it was specifically stipulated that if in any year recruitment by direct selection is not made according to the prescribed ratio the shortfall of direct recruits shall lapse and shall not be carried forward in the subsequent year. Therefore the position prior to amendment of Rule 3 in the year 1982 was that financial year was taken as a unit for operation of the said quota fixed by Rule 3 and if in the financial year as against the vacancies allocable for direct recruit if no appointment was made the said vacancies would lapse and the same shall not be carried forward in the subsequent years. The resultant effect of the said Rule was that despite prescription of quota of 1:3 for direct recruit and promotees if recruitment of direct recruit was for any reason not resorted to and if financial year had expired by that time the vacancies which had occurred and which had fallen to the share of direct recruits would lapse and they would not be available to the candidates of direct recruits of subsequent year. Rule 3 in its unamended form prior to 1982 thus acted harshly for direct recruits inasmuch as on failure of the Government to fill in the vacancies Provided that if in any year recruitment by direct selection is not made according to the prescribed ratio the shortfall of direct recruits shall lapse and shall not be carried forward in the subsequent year. The appointment by direct selection and promotion shall be made in the ratio of 1:4 (i. e. one by direct selection and four by promotion ). Proviso deleted. The appointment by direct selection and promotion shall be made in the ratio of 1:4 (i. e. one by direct selection and four by promotion ). Proviso deleted. from amongst the direct candidates in a particular financial year vacancies would lapse and despite prescription of quota of 1:3 direct recruits would not get any post (iv) The Rule making authority therefore while amending the Rules in 1982 amended the said Rule 3 so as to change the ratio between direct recruit and promotees to one of 14 and it also altogether deleted proviso to Rule 3 II is because of this deletion of proviso that after 21-5-1982 even if no direct recruitment is made from amongst the direct candidates the quota meant for direct recruit in the financial year shall not lapse and such quota shall be carried forward to the next year so as to make it obligatory on the Government that the ratio prescribed by the rules i. e. of 1 direct recruit for 4 departmental candidates is maintained and because of non-availability of direct candidates or non-filling of all the posts meant for direct recruits such vacancies do not lapseprocess OF SELECTION process for appointment by direct selection ( 12 ) RULE 4 of G. S. E. Class I Rules inter alia prescribes the procedure for appointment by direct selection The said Rule 4 provides that for appointment by direct selection a competetive examination shall be held by Gujarat Public Service Commission in accordance with the Rules mentioned in Annexure I appended to the said Rules The examination shall common for both the services namely G. S. E. Class I and G. S. E. Class II. The result therefore shall be arranged in order of merit of the candidates and appointments to the G. S. E. Class I or Class II shall be made seriatim from the list of result prepared for the two Cadres by the Gujarat Public Service Commission subject to the fulfilment of requirement of physical fitness and other provisions of the Rules The qualified candidates securing the highest places in order of merits shall be offered appointment in G. S. E. Class I according to the number of vacancies declared for such recruitment to that cadre The candidates securing the next higher place in order of merit in the list shall be offered appointments to the G. S. E. Class II provided they have indicated their willingness to be so appointed in the application to the Commission for admission to the examination rule 5 of G. S. E. Class II Rules is identical to aforesaid Rule 4 of G. S. E. Class I Rules ( 13 ) IT will not be out of place to mention that Rule 5 of G. S. E. Class I Rules 6 of G. S. E. Class II Rules inter alia prescribe the educational qualification and criterion of eligibility for being considered for Class I or Class II posts ( 14 ) FROM the aforesaid resume of the Rules following undisputed propositions emerge (I) Though G. S. E. Class I and Class II are different services the examination to be conduct for direct recruitment is common for both the services (II) The examine who subjects himself to the examination therefore naturally competes both for Class I and Class II posts. (III) The result of the examination shall have to be arranged in order of merit of the candidates (IV) Appointments to the G. S. E. Class I and Class II is therefore to be made seriatim from the list of result prepared by the Gujarat Public Service Commission In other words the qualified candidates securing highest marks in order of merit shall be offered appointments in the G. S. E. Class I according to number of vacancies declared and the candidates securing next higher place in the order of merit are to be offered appointments to the G S E Class II provided they have indicated their willingness to be so appointed in their applications to the Commission for admission to the examination ( 15 ) THEREFORE as and when examination is held by the GPSC for posts in GSE Cl. I and GSE Cl. II a candidate appearing in such examination stakes his claim both for Cl. I and Cl. II posts and GPSC is assessing the suitability of such candidate both for Cl. I and Cl. II posts In view of the fact that candidate appearing at such common examination stakes his claim both for Cl. I and Cl. II posts and in view of the fact that appointment to the GSE Cl. I or Cl. II is to the made seriatim from the list of result prepared for the two cadres by the GPSC candidate having passed the examination and having been included in the-list of successful candidate can look forward to his appointment either in Cl. II post or Cl. I post on the basis of his position in the list of successful candidates and also on the basis of availability of posts meant for direct recruit If more posts are available for direct recruits a candidate though not placed higher in the list may get appointment to Cl. I post In my opinion this clear position which emerges from the language of the Rules is further fortified by the actual practice followed by the Commission The names of the successful candidates for Cl. I service and who are wait-listed are also included in the select-list of candidates for Cl. II if they have also opted for Cl. II service. ( 16 ) THE next question which would immediately arise would be as to how GPSC prepares select-list and wait-list for Cl. I and Cl. I service and who are wait-listed are also included in the select-list of candidates for Cl. II if they have also opted for Cl. II service. ( 16 ) THE next question which would immediately arise would be as to how GPSC prepares select-list and wait-list for Cl. I and Cl. II services how does G. P. S. C. qualify candidates for Class I and Class II posts annexure I to GSE Cl. I recruitment Rules prescribes procedure for competitive examination to be held by Gujarat Public Service Commission Rule I of the examination Rules lays down that the examination will be held by the Commission on such date and at such place as the commission may from time to time fix Rule 2 of the said Examination Rules provides that ordinarily all candidates who satisfy the prescribed conditions will be admitted to the examination on submission of such proof of their qualification and character as the Commission may require Rules 4 and 5 being material for the purposes of controversy involved in these petitions they are reproduced hereunder:rule 4: The Commission will fix what should be the qualifying marks in any or all the subjects of the examination and in the total either generally for all candidates or separately for candidates from the Scheduled Castes/scheduled Tribes/socially and Educationally backward class including nomadic and Denotified Tribes in respect of vacancies reserved for such candidates and for other candidates and a candidate shall not be deemed to have been qualified in the examination if he fails to obtain the qualifying marks fixed by the Commission in the viva-voce and personality testrule 5: The Commission will summon for the viva-voce and personality test only those candidates who attain such minimum standard at the written examination as the commission may prescribe generally for all candidates or separately for candidates from the Scheduled Castes/scheduled Tribes Socially and Educationally backward class including Nomadic and Denotified Tribes in respect of vacancies reserved for such candidates and for other candidates ( 17 ) FROM the aforesaid Rules it becomes clear that Rule 4 empowers the commission to prescribe qualifying marks for viva-voce and written tests When does the Commission fix the qualifying marks for the examination ? On what event the qualifying marks are fixed ? Is it after the examination ? And if it is so is it after the answer papers are assessed ? On what event the qualifying marks are fixed ? Is it after the examination ? And if it is so is it after the answer papers are assessed ? What was the evaluation of the answer book to do with fixing of the qualifying marks and what exactly is the process followed by the Gujarat Public Service Commission ? Does the fixing of the qualifying mark depend on assessment of the Commission as to what marks would normally qualify a person to be eligible for the job ? The aforesaid questions would immediately crop up and did really arise before the Division Bench of the Gujarat High Court in the case of L. V. Ashra v. Gujarat Public Service Commission and the Division Bench vide its order dated 3 1/07/1984 called upon the Gujarat Public Service Commission to file affidavit answering the aforesaid questions ( 18 ) IN consultation with the Chairman and the members of the Gujarat Public Service Commission the then Secretary of Gujarat Public Service Commission filed additional affidavit-in-reply in response to the direction issued by the Division Bench of the High Court inter alia setting out the procedure followed by the Commission and also setting out in detail the assessment process and the marking in the assessment process From the said additional affidavit-in-reply which is also produced as part and parcel of the record of these proceedings it becomes clear that concerned department intimates to the Gujarat Public Service Commission the requisition for the posts to be filled in on the basis therefore the Gujarat Public Service Commission issues advertisement in the newspaper and applications are invited in the prescribed form At the time of giving the application form the details of advertisement are supplied so that the candidates before filing the application form know as to what the subjects are and in which he has to appear and syllabus thereof. On secrutiny of the application the written test is held and the answer sheets of the candidates are examined by independent examiners After the assessment of the answer book of each and every candidates the viva-voce test is taken Paras (5) (6) and (7) of the said affidavit-in-reply filed by the GPSC in earlier proceedings before the Division Bench of this Court being material and relevant they are produced hereunder:5 Process of fixing qualifying marks:i state that the qualifying marks for passing the written test are fixed after the assessment of the answer books of the applicants is made The fixing of the qualifying marks depend upon the number of the posts to be filled in For general category the ratio of 3 : 1 is maintained as far as practicable That it to say if 10 posts are vacant then the Commission invites 30 candidates for the viva-voce so as to fill in ten posts and the qualifying marks are fixed in such a way that at least 30 persons could be called for the viva-voce test for filling the said ten posts The ratio in this connection varies from year to year and taking into consideration the number of posts to be filled in however this ratio does not apply to the reserved posts The Commission takes care to invite more persons of the reserved category taking into consideration the need I therefore stale on consultation and information that qualifying marks are not fixed before the written test is taken but the qualifying marks are fixed after the assessment of the answer books of the applicants considering the aforesaid connection that qualifying marks are fixed after evaluation of the answer books The process is also as stated hereinabove In this connection I rely upon the examination Rules and in particular Rule 4 thereof6 Regarding the issues Does the fixing of the qualifying marks depend on the assessment by the Public Service Commission as to what marks would normally qualify a person to be in eligible for the job I state that the qualifying marks depend upon the general performance of the applicants in the written test and the number of posts to be filled in The qualifying marks are fixed considering the vacant posts to be filled in and the performance of the candidates in the written test Therefore at the time of each advertisement the qualifying marks will vary and the qualifying marks are fixed after the assessment of the answer books of the written test is made7 Regarding the fixing of the qualifying marks at the viva-voce test I state that the qualifying marks in the viva-voce are fixed after the written test and after the qualifying marks in the written test are determined I further slate that the Chairman and the Members of the Commission decide the qualifying marks of the written test I further stale that the qualifying marks at the viva-voce are determined by the Chairman and the Members of the Commission at the time of sitting for the viva-voce and that the qualifying marks are fixed before the viva-voce commences Therefore unlike the written test the qualifying marks of the viva-voce are fixed before the viva-voce commences ( 19 ) FROM the aforesaid process of fixation of qualifying marks as narrated by the then Secretary of GPSC and from the positive stand of the Commission that qualifying marks depend upon the general performance of the applicant in the written test and the number of posts to be filled in it becomes abundantly clear that prescription of qualifying marks will vary from year to year and that they are fixed after the assessment of the answer books of the written test and thirdly they are relatable to number of posts to be filled in. ( 20 ) ON the aforesaid basis select-list of candidates for vacant posts of Cl. I is prepared If lesser vacancies are available lesser number of candidates are invited for viva-voce lest and qualifying marks are fixed in such a manner that candidates three times to the number of vacancies are called for viva-voce The ratio in this connection may vary from year to year Over and above the select-list the Commission may also empanel some candidates in the waiting-list depending upon the expected vacancies in near future If the candidates who do not qualify for being included either in the select-list or wait-list in the Cl. I and who are immediately below the selected and wait listed candidates are regarded as candidates who have qualified for Cl. II posts Such candidates if they have given their option for being recruited to Cl. II posts are also included in the select-list for Cl. II posts . ( 21 ) IF examination conducted by GPSC for recruitment to GSE Cl. I and Cl. II Service is common curriculum and question papers are common examiners are common and method of assessment is common and if fixing of qualifying marks every year depend upon number of vacancies available question may arise as to what would happen if more vacancies are found to be available subsequently or if more posts are created or sanctioned which are required to be filled in on the basis of the said examination conducted by the Gujarat Public Service Commission ? case of the direct recruits ( 22 ) THE petitioners in this petitions contend that pursuant to the directions given in V. V. Brahmakashatriyas case (supra) the vacancies available for recruitment since 1981-82 consistent with the direction given in the said judgment were required to be determined The Government had failed to take into account various vacancies while operating the quota rule and therefore the learned Single Judge directed that vacancies of the aforesaid categories were required to be taken into account for applying quota rule Therefore the Government was required to determine the available vacancies in the year 1981 and having determined the vacancies it was required to allocate the vacancies in the ratio of 1:3 as it stood prior to 1982 and to apply the ratio of 1:4 as prescribed by the Notification dated 21/05/1982 on the basis of such determination the posts which were allocable to direct recruits were required to be given to the successful candidates of 1980-81 examination and the petitioners were accordingly entitled to be absorbed in Cl. I service of Gujarat Service of Engineers It is the case of the petitioners that since they were selected and were placed in the merit list pursuant to the examination which was held in February 1982 and since the revised result whereof was published in Government Gazette on 3 and since thereafter no competitive examination was held for Gujarat Service of Engineers Cl. I or Cl. II by the Gujarat Public Service Commission the said merit list was required to be operated by pushing up the candidates as per their position in the merit list so as to fill in all the vacancies which have become available every year on the basis of computation of vacant seats as directed by the learned Single Judge in V. V. Brahmakshatriyas case (supra) It is their case that approximately 500 vacancies have arisen in Gujarat Service Engineers Cl. I in different departments of the respondent-State and if ratio of 1:4 is applied at least 100 vacancies approximately are available which were required to be filled in from the existing list and since the respondents have failed to carry out the direction issued by the learned Single Judge as confirmed by the Division Bench they are required to approach this Court seeking direction to respondents to fill up the vacancies in Cl. I of Gujarat Service of Engineers case of the Respondent-State ( 23 ) THE respondents have on the other hand by filing affidavit-in-reply of one B. S. Diwan Deputy Secretary to the Govt. of Gujarat Roads and Buildings taken up the stand that pursuant to competitive examination held in February 1982 the Gujarat Public Service Commission has prepared the select-list and wait-list for the posts of Gujarat Service of Engineers Cl. I and Cl. II separately Some of the petitioners have been included in the select-list as candidates selected for the appointments only to the Cl. II posts to which they have been given appointments According to the State the Gujarat Public Service Commission has never prepared and published the common select-list and wait-list for both Gujarat Services of Engineers Cl. I and Cl. II The Commission has by separately specifying qualifying marks for appointment to the post of Cl. I and Cl. II separately prepared the select-list and wait-list so as to exhaust the requisition sent by the Government Since there were 12 vacancies in Cl. I in the year 1981 the select-list of 12 candidates was only prepared List of 11 candidates was prepared which was the wait-list for appointment to the Cl. I post The respondents admit that in V. V. Brahmakshatriyas case the High Court did issue direction to maintain quota considering the vacancies as mentioned in the said judgment and to give appointments to the candidates on the vacancies available for direct recruits. It is their case that as per the said judgment the Government has calculated the vacancies meant for the direct recruits and has given appointment to Cl. I post out of the wail-list and therefore the list which was prepared is exhausted. It is their case that once the select-list as well as wait-list are exhausted question of continuance of said lists for the purpose of giving appointment to the post of Gujarat Service of Engineers Cl. I post out of the wail-list and therefore the list which was prepared is exhausted. It is their case that once the select-list as well as wait-list are exhausted question of continuance of said lists for the purpose of giving appointment to the post of Gujarat Service of Engineers Cl. I would not arise ( 24 ) IT is the further case of the respondent-State that the vacancies allocable to direct recruits on the basis of directions issued in V. V. Brahmakshatriyas case have been worked out for the period from 21st May 1982 to 1991-92 and all such vacancies have been carried forward and requesting it to recommend suitable candidates for appointment to the said posts Therefore the petitioners in these petitions according to them have no right whatsoever to claim any appointment on any of the posts which accrued in the years from 21/05/1982 till today. ( 25 ) IT is the further case of the respondents that for the years 1982-83 and 1983-84 requisitions were sent to Gujarat Public Service Commission for direct recruitment but the Commission could not hold the examination and could not recommend suitable candidates Thereafter there had been scarcity/drought situation prevailing in the State and the Government had introduced economy measures and had banned direct recruitment and therefore no requisitions for the said period were sent to the Gujarat Public Service Commission on lifting the said ban in the year 1991-92 the requisitions were sent to the Gujarat Public Service Commission ( 26 ) IT is their further case that the revised list prepared pursuant to the directions of this Court in L. V. Ashras case is already exhausted and therefore the question of further operation of said list does not arise Even otherwise for the purpose of introducing fresh blood in the cadre by mode of direct recruitment it is necessary to hold fresh examination and to prepare fresh list of suitable candidates Therefore the respondent-State have prayed for rejection of the petitions case of promotees ( 27 ) IN this group of petition though there is no direct conflict between the direct recruits and promotees the promotees through their Counsel M/s J. R. Nanavaty and H. M. Mehta supported the stand of the State Government and the Gujarat Public Service Commission. It is their case that on proper construction of Rule 4 of the Examination Rules Gujarat Public Service Commission was required to prepare two separate select-lists for Cl. I and Cl. II Such lists were to be prepared on the basis of minimum qualifying marks which were to be fixed separately for Cl. I and for C. II. It is their case that if a candidate is not included in the list of Cl. I because he did not qualify by obtaining minimum qualifying marks prescribed for such posts he cannot be subsequently appointed on such Cl. I post because of availability of more posts of Cl. I In their submission Rule 4 of the aforesaid Rules refers to appointment of G. S. E. Cl. I or Cl. II and it has to be made from two separate lists prepared for Cl. I and Cl. II They further submit that if the name of the person is included in the list meant for Cl. I and if appointment is not offered to him he can be appointed to Cl. II post only if he has indicated his willingness for Cl. II at the time of making application However a person who has applied for Cl. II post only and whose name is included in the select-list of candidates for Cl. II only on the basis of qualifying marks cannot be appointed on Cl. I post According to Mr. J. R. Nanavaty the Gujarat Public Service Commission was required to provide qualifying marks for Cl. I as well as for Cl. II In his submission qualifying marks were required to be prescribed once after the written test was over to determine the eligibility of candidate for viva-voce test and secondly after completion of viva-voce test for determining the eligibility for inclusion in the select-list of Class I and Class II He submits that in L. V. Ashras case (supra) the Division Bench of this Court was not concerned at all with the second stage of fixing qualifying marks It was concerned at all with fixation of qualifying marks after written examination and therefore the affidavit-in-reply which was filed in earlier proceeding should not be made the basis of any decision Mr. Nanavaty further submitted that number of available vacancies was one of the factors for determining the qualifying marks by the Gujarat Public Service Commission but it was not sole determinative factor. In his submission if the fixation of minimum qualifying marks by the Gujarat Public Service Commission based on the availability of vacancies is taken as sole basis only those posts would be available which were advertised or notified by the Gujarat Public Service Commission and the vacancies which are made available subsequently or vacancies which arise subsequently cannot be taken into consideration for the purpose of operating the list prepared by the Gujarat Public Service Commission He submitted that the question of quota of direct recruits and seniority are inter-linked Therefore if the petitioners who were selected for Class II post in the year 1981-82 are treated as eligible to get Class I post in the year 1992 on the basis of quota fixed for them said selectees would get seniority from 1981-82 and that is how the seniority of the promotees would be affected adversely In his submission such cannot be the operation of quota rule and that those who are selected for Class II post cannot now be treated as selected for Cl. I post on the basis of availability of more posts because of operation of quota as directed by the learned Single Judge of this Court Mr. Nanavaty has also further pointed out that the learned Single Judge while allowing the petitions of the petitioners in V. V. Brahmakshtriyas case (supra) has deliberately omitted to give direction to revise the list and has simply directed to implement the revised list which was prepared pursuant to the direction given by the Division Bench in L. V. Ashras case (supra) In his submission the directions given in V. V. Brahmakshtriyas case are only to be applied to the petitioners of the case before the Court and they are not to be extended of the persons who were included in the select-list of Cl. II Lastly he submitted that the petitioners of this group of petitions cannot be granted any relief in view of the fact they have without any demur accepted inclusion of their names in Cl. II and have accepted employment in Cl. II service. They have either waived their right or acquiesced in their absorption in Cl. II Lastly he submitted that the petitioners of this group of petitions cannot be granted any relief in view of the fact they have without any demur accepted inclusion of their names in Cl. II and have accepted employment in Cl. II service. They have either waived their right or acquiesced in their absorption in Cl. II therefore they cannot now be permitted to claim any right of appointment in Cl. I post because of availability of more posts of Cl. I pursuant to the directions given by this Court in V. V. Brahmakshatras case ( 28 ) MR. H. M. Mehta who has appeared for actual promotees to Cl. I post from Cl. II post has submitted that the directions given by the Division Bench of this Court in L. V. Asharas case and by the learned Single Judge in V. V. Brahmakhstriyas case have been given full effect to and nothing further was required to be done by the State Government. By relying upon certain observations of the Supreme Court in the case of Shankarsunder v. Union of India reported in AIR 1991 SC 1612 to the effect that the final selection has to be closed at some stage and every time a select-list which was prepared by the Gujarat Public Service Commission pursuant to the availability of vacancies in the year 1981-82 cannot be and should not be directed to be revised. Once the original select-list of Cl. I and the subsequent revised select-list of Cl. I prepared by the Gujarat Public Service Commission pursuant to the direction given by the Division Bench in L. V. Ashras case are exhausted it is not open to the Court to issue direction to Gujarat Public Service Commission to further revise the said list prepared as back as 1981-82. He very strenuously urged that the purpose of direct recruitment is to infuse new and fresh blood in the administration of the State so that young talent freshly equipped possessing necessary dynamism is available to the administration. Such purpose will be frustrated if directions given in L. V. Ashras case by the Division Bench and in V. V. Brahmakshatriyas case by the learned single Judge are permitted to be restored to by the persons who were included in the select-list as back as 1981-82 to claim appointment to Cl. I post in the year 1992. Such purpose will be frustrated if directions given in L. V. Ashras case by the Division Bench and in V. V. Brahmakshatriyas case by the learned single Judge are permitted to be restored to by the persons who were included in the select-list as back as 1981-82 to claim appointment to Cl. I post in the year 1992. He exhaustively referred to the directions issued by the Division Bench of this Court in L. V. Ashras case (supra) and pointed out to the Court that the Division Bench in fact did not strike down the select-list but it only directed the Gujarat Public Service Commission to include the names of the petitioners at appropriate place. The direction of the Division Bench of this Court were meant for the petitioners only of the said proceedings and they were not to be treated as directions directing the Gujarat Public Service Commission to revise the entire select-list. By reference to V. V. Brahmakshatriyas case he submitted that it is found by the learned single Judge that the direction given by the Division Bench in L. V. Ashras case were fully implemented and further directions were required to be given only to see that the petitioners of those petitions were not deprived the benefit of directions given in L. V. Ashras case and that was the reason that the learned single Judge observed that the clock was required to be set back so that pre-1983 selectees are not deprived the benefit of directions given in the case of L. V. Ashra by operation of lapsing of quota. He very vehemently submitted that the learned Single Judge in V. V. Brahmakshatriyas case was mainly concerned with the appointment to Cl. I and it was not the intention of the Court to give the benefit to the persons who were already appointed to Cl. II. By reference to para 29 of the judgment of V. V. Brahmakshatras case he submitted that it was not the intention of the learned single Judge that all the posts which became available for direct recruits pursuant to the direction given in V V. Brahmakhsatriyas case should be made available to the wait-listed candidates or to the candidates whose names were included in Cl. II. II. If such directions is given in his submission the list which is prepared in the year 1982-83 would operate for all times to come and the very purpose of direct selection will be frustrated inasmuch as the persons who have been selected in the year 1982-83 Cl. II would claim right of recruitment in the quota of direct recruits for Cl. I post. II would claim right of recruitment in the quota of direct recruits for Cl. I post. He further submitted that the effect of deletion of proviso was to ensure maintenance of balance between direct recruits and promotees The intention was to save number of posts for direct recruits so that by lapsing of quota the direct recruits are not deprived of the posts This amendment in his submission did not confer any right of selection and appointment on earlier wait-listed candidates If such right is accepted it would amount to carrying forward of the claim of the wait-listed candidates rather than carrying-forward of the posts on non-availability of candidates In the alternative he submitted that those persons whose names were included in Class II and who have accepted employment in Class II if are now permitted to claim appointment to Class I as against quota fixed for direct recruits in substance the employees of Class II would obtain transmission to Class I in disregard of their seniority in Class II What they cannot get by promotion they would indirectly get by this method of obtaining directions from the court He has referred to the Government Resolution dated 2 7/12/1983 which outlines the purpose for which the wait-list is prepared By reference to said Government Resolution he has pointed out that those persons who were wait-listed cannot by mere pendency of said wait-list get right of being appointed to Class II post In fact such persons were found suitable for Class II posts and that is the reason why they were selected for Class II and therefore they cannot be automatically treated as selected for Class I because some posts of Class I are now available Lastly he has submitted that the posts for direct recruitment which are carried forward should be permitted to be filled in by the fresh candidates and it would not be just to fill in such vacancies by directing the persons who were already in Class II pursuant to their selection in the year 1981-82 Can Gujarat Public Service Commission recommend persons for the posts in 1992 based on the examination which was conducted in 1982 ? He submitted that this appears to be unseemly After giving proper effect to the aforesaid two decisions what is required to be done is that those decisions are to be operated within the parameters of posts which were then available Undoubtedly according to him there is inaction on the part of candidates selected for Class II in select-list of Class I after a period of over ten years so as to deny appointment to the fresh candidates from the open market ( 29 ) FROM the aforesaid factual matrics and history of prior litigation position of Statutory Rules prior to and after the amendment and rival contentions of direct recruits promotees the State Government and the Gujarat Public Service Commission the following questions arise for my determination in this group of petitionsi. What is the effect of proviso to Rule 3 on successful candidates who have passed the examination conducted in January 1980 results whereof were declared in July 1980 and the examination conducted in December 1980 results whereof were declared on 8/09/1981 ?ii. Are the petitioners of Special Civil Application Nos. 8239/91 616 903 and 7079 entitled to any relief in view of proviso to Rule 3 as it stood prior to its deletion ?iii. Whether any express direction is issued or an implied direction can be read from the judgment of the learned Single Judge in V. V. Brahmakshatriyas case for revising the list of 1980-181 or 21/09/1983 and whether directions if any issued by the learned Single Judge were general in nature of applicable only to the petitioners who were before the Court ?iv. What is the effect of deletion of proviso to Rule 3 with effect from 21-5-1982 and how are the accummulated and or carried forward vacancies to be filled in ? Are the successful candidates of February 1982 whose results were declared on 21 entitled to be considered and appointed to the available vacancies as on 21-9-1983 and whether such candidates are entitled to stake their claim for appointment to Class I posts which have arisen and or carried forward from 1-4-1984 and in subsequent years? Are the successful candidates of February 1982 whose results were declared on 21 entitled to be considered and appointed to the available vacancies as on 21-9-1983 and whether such candidates are entitled to stake their claim for appointment to Class I posts which have arisen and or carried forward from 1-4-1984 and in subsequent years? or are the Government and the Gujarat Public Service Commission justified in resisting the claim of the petitioners by contending that the successful candidates of February 1982 examination can stake their claim against those vacancies which were then available or those which might have occurred by 1-4-1984 and not subsequent thereto and are they justified in contending that the omission of the Gujarat Public Service Commission to hold examination in the subsequent years cannot and should not result into improving the position of the successful candidates in February 1982 ? question Nos. I and II ( 30 ) IT is noted hereinabove that the G. S. E. Class I and Class II Rules are almost identical and the Rules framed in the year 1979 inter alia provided mode of recruitment to Class I post of Executive Engineer (Civil) and to Class II post of Deputy Engineers. Said posts are to be filled from two sources namely from open market by direct selection and from amongst departmental candidates by promotion. Obviously therefore the rules stipulated ratio of 1 : 3 between direct recruits and promotees for the post of Executive Engineers. ( 31 ) PRIOR to the amendment of the said Rules in the year 1982 there was proviso to Rule 3 which inter alia provided that if in any year recruitment by direct selection is not made according to the prescribed ratio the shortfall of direct recruits lapse and shall not be carried forward in the subsequent year. The effect of this Rule in its un-amended form was that the Gujarat Public Service Commission was required to hold examination for direct recruits every year so as to select direct recruits and to make the list of selected candidates available so that the Government can fill in vacancies for direct recruits every year. Any lapse on the part of Gujarat Public Service Commission in holding examination and preparing the select-list or on the part of the Government in filling in such vacancies would result into lapsing of such vacancies in the subsequent recruitment year. Any lapse on the part of Gujarat Public Service Commission in holding examination and preparing the select-list or on the part of the Government in filling in such vacancies would result into lapsing of such vacancies in the subsequent recruitment year. This proviso has therefore adverse effect on fresh candidates from open market because for no fault on their part they would be denied the chance of being considered for appointment to Class I post if for any reason appointment is not made against the available vacancies. This was a provision which directly hit the class of direct recruits and was in every sense an unequitable provision operating harshly and unsatisfactorily against the direct recruits. This unsatisfactory situation was redressed by amendment of Rule 3 by delating the proviso of the said rule with effect from 2 1/05/1982. This amended Rule admittedly do not have any retrospective effect and therefore with effect from 2 1/05/1982 theunfilled vacancies of Class I shall not lapse and they shall be carried forward to the next year. This unsatisfactory situation was redressed by amendment of Rule 3 by delating the proviso of the said rule with effect from 2 1/05/1982. This amended Rule admittedly do not have any retrospective effect and therefore with effect from 2 1/05/1982 theunfilled vacancies of Class I shall not lapse and they shall be carried forward to the next year. ( 32 ) IN this group of petitions it shall have to be noted that the first examination was conducted in January 1980 and results therefore were declared in July 1980 The said list of successful candidates therefore shall operate till the end of that year i. e. upto 31/03/1981 and as per the proviso to Rule 3 as it stood prior to its amendment if in any year recruitment by direct selection is not made the shortfall of direct recruits shall lapse and shall not be carried forward Therefore for aforesaid period expiring on 3 1/03/1981 if vacancies were not filled in for any reason whatsoever such vacancies shall lapse ( 33 ) IT is also required to be noted that second examination was conducted in December 1980 and results therefore were declared on 8/09/1981 Said list would operate from 1-4-1981 till 31 and if for any reason vacancies of direct recruits are not filled in by then such vacancies shall lapse In my opinion the proviso to Rule 3 prior to its amendment with effect from 21/05/1982 clearly stipulated that if in any year of recruitment by direct selection is not made according to the prescribed ratio the shortfall of direct recruits shall lapse and shall not be carried forward in the subsequent year Therefore the successful candidates of January 1980 and December 1980 examination cannot stake their claim for any unfilled vacancies of Class I post because the effect of proviso is that the shortfall of direct recruits shall lapse if recruitment by direct selection is not made in that particular year and such shortfall is not to be carried forward Therefore those candidates who were successful in the aforesaid two examinations and whose names were included in the list of successful candidates of Class II cannot now on the basis of mere availability of vacancies of direct recruits in Class I in those years because of direction of R. C. Mankad J. in V. V. Brahmakshatriyas case ( 1990 (1) GLH 289 ) move this Court to direct the respondents to appoint them to Class I post in the quota of direct recruits for the relevant recruitment year beginning from 1-4-1980 and 1-4-1981 In my opinion even if more vacancies were found to be available because of subsequent declaration of law made by the learned Single Judge of this Court in V. V. Brahmakshatriyas case the said vacancies shall be treated as lapsed because the proviso to Rule 3 then operated and as per the said proviso shortfall of vacancies would lapse It is required to be noted that none of the petitioners in the group of petitions which were decided by the learned single Judge in the case of V. V. Brahmakshatriya belonged to the examination of January 1980 In fact no successful candidate from that list had come to the Court at any time prior to the present proceedings ( 34 ) THE second examination was conducted by the Gujarat Public Service Commission in December 1980 and results thereof were declared on 8/09/1981 Said list would operate from 1-4-1981 till 31/03/1982 and if for any reason the vacancies for direct recruits were not filled in by then the unfilled vacancies would lapse In my opinion the proviso to Rule 3 prior to its amendment with effect from 21/05/1982 clearly stipulated that if in any year the recruitment by direct selection is not made according to prescribed ratio the shortfall of direct recruits shall lapse and shall not be carried forward in the subsequent year However the list of 8-9-1981 would remain operative till next list is prepared and therefore despite lapsing of vacancies on 31/03/1982 the list of successful candidates would continue till next list is prepared The next list of examination conducted in February 1982 was prepared on 21st September 1983 and therefore till then the list of successful candidates of 8/09/1981 would continue Before such list can be said to have become inoperative by deletion of the proviso the vacancies which would have otherwise lapsed even on 3 1/03/1983 are saved with effect from 21/05/1982 and they are required to be carried forward Despite non-filling in of vacancies after 21/05/1982 the vacancies allocable to direct recruits shall have to be carried forward and all such vacancies shall have to be filled in from amongst the successful candidates of 8-9-1981 Therefore all the va cancies arising from 21/05/1982 till 2 1/09/1983 allocable to direct recruits are to be filled in from amogst the candidates of 8-9-1981 ( 35 ) THE five petitioners of Special Civil Application No. 8239/91 two petitioners of Special Civil Application No. 616/92 and three petitioners of Special Civil Application No. 903 have admittedly appeared at the examination conducted in January 1980 and were declared successful at such examination and their names were included in the merit list prepared by the Gujarat Public Service Commission and they were appointed as Deputy Executive Engineers Class II. It is their case in these petitions that some vacancies were allocable to direct recruits during the aforesaid period than those which were requisitioned by the State Government and therefore for such allocable vacancies they are entitled to put forth their claim They submitted that since for the first time in V. V. Brahmakshatriyas case the learned single Judge of this Court directed the State Government and the Gujarat Public Service Commission to take into consideration four types of vacancies for the purpose of operating quota Rule and since such vacancies were admittedly not reckoned in the year 1980 and 1981-82 lesser number of vacancies were earmarked and requisitioned than those which were allocable to direct recruits Such allocable vacancies of 1980-81 should ultimately fall to the share of successful candidates of 1980-81 and therefore according to these petitioners they are entitled to put forth their claim even after lapse of 10 years. ( 36 ) MR. M. R. Anand Mr. K. I. Patel and Mr. Y. S. Lakhani learned Counsels appeared for the petitioners in these petitions have also pressed into service the fact that the interviews and call letters which were issued to the petitioners pursuant to their success in written examination were common calling such candidates to appear at interview for selection to Class I and Class II posts They therefore submitted that the procedure of selection undertaken by the Gujarat Public Service Commission being common procedure both for Class I and Class II and since pursuant to such common procedure list of successful candidates was prepared which in fact came to be bifurcated into separate list for Class I and Class II as per requisition made by the State Government the petitioners though included in the list of Class II post can put forth their claim for Class I posts allocable to that relevant year because those posts were not vacant or not taken into consideration by the State Government prior to V. V. Brahmakshatriyas case ( 37 ) MR. D. N. Patel Ld. Asst. Govt. D. N. Patel Ld. Asst. Govt. Pleader on the other hand very vehemently submitted that the petitioners of these three petitions have no case at all and the same are liable to be dismissed firstly because the proviso to unamended Rule 3 was in operation when the examination was held and the results were declared Therefore the vacancies of Class I posts for whatever reason if not filled in were liable to lapse and have in fact lapsed on 31/03/1981 Secondly he submitted that under Circular No. PSC-1078-7241-G. II dated 4-4-1979 which was issued by the Government of Gujarat in General Administration Department the select-list prepared by the Commission on the basis of competitive examination is declared Therefore the select-list prepared by the Commission in the month of July 1980 would remain in operation only upto 8-9-1981 when based on December 1980 examination another list of successful candidates was prepared Therefore the select list of January 1980 examination has by virtue of operation of said circular become inoperative and de-funct The successful candidates whose names were included in said list of July 1980 cannot stake their claim for vacancies of Class I post which are subsequently earmarked as allocable to direct recruits In his submission whatever may be the cause for not filling in of the vacancies of Class I posts such vacancies lapsed and statutory proviso to rule must have its effect. Thirdly he has submitted that the claim for appointment to Class I post based on inclusion of the names of the petitioners in the list of successful candidates of July 1980 in the year 1992 is hopelessly barred by delay laches and acquiescences The petitioners have harped over their right if any and the Court should not exercise its power in their favour under Article 226 of the Constitution of India because that would amount to un-settling the claim of number of persons and Class II employees like petitioners would steal a March over promotees for no justifiable reason ( 38 ) HAVING given my anxious thought to the aforesaid rival submission of the parties I am of the opinion that the statutory provisio to Rule 3 as it stood prior to its amendment must have its effect and it cannot be rendered inoperative or meaningless before its actual detention on 21/05/1982 True it is the effect of said proviso was very harsh arbitrary and discriminatory as against direct recruits and the Legislature has therefore to step in by delating the said proviso but this Court cannot erase the said proviso from the Statutory Rules by rendering it meaningless by directing the Government to treat the vacancies which have arisen for the said period as surviving and thereafter to direct the Government and the Gujarat Public Service Commission to appoint the successful candidates of those examination who were appointed to Class II posts as eligible for being appointed to Class I posts by issuing further direction to the Government to appoint said candidates to Class I posts as against vacancies which ought to have been requisitioned Assuming for the time being that the vacancies were not correctly reckoned and were not correctly requisitioned by the State Government such vacancies would lapse and it cannot be said that because the vacancies were not requisitioned such vacancies would be carried forward Even if the ratio of decision in the case of V. V. Brahmakshatriya (supra) is to be given effect such earmarked vacancies for the years 1981 and 1982 prior to 21/05/1982 shall have to be treated as lapsed and the merit lists which were made pursuant to January 1980 examination on 10/07/1980 shall have to be treated as lapsed or de-funct and totally inoperative firstly because of the operation of proviso to Rule 3 as it stood prior to its amendment and secondly because of the holding of subsequent examination and preparation of subsequent merit list. ( 39 ) IN my opinion the grievance for their non-appointment to Class I post in the year 1980 was required to be made by the petitioners at the relevant time when the said merit list was operating in the recruitment year itself The petitioners knew the position of Statutory Rule which then prevailed The effect of Statutory Rule was that for any reason in any year recruitment by direct selection was not made according to prescribed ratio the shortfall of direct recruits was liable to lapse and was not to be carried forward in the subsequent year. Therefore actual recruitment was required to be made as against the vacancies. If there was mistake on the part of the Government in reckoning the vacancies for direct recruits and if no actual recruitment was made the shortfall of vacancies shall have to lapse and it cannot be carried forward. Acceptance of submissions of the learned Counsel for the petitioners would in substance amount to ignoring the proviso to Rule 3 which then operated and it would also amount to rendering ineffective the factum of holding of subsequent examination. Once in December 1980 another examination is held and results were declared on 8-9-81 the earlier examination and its result becomes redundant and inoperative and the same cannot be received for the purpose of filling in vacancies which were found to be available because of subsequent declaration of law by the learned Single Judge of this Court in the case of V. V. Brahmakshatriya. ( 40 ) THE third objection put forth by Mr. D. N. Patel Ld. AGP also shall have to be accepted that such a belated claim cannot be entertained especially when the petitioners have never staked their claim for appointment to Class I post immediately after the declaration of results of the examination in July 1980. Subsequent examination is held in December 1980 and results thereof were declared on 8-9-1981. Therefore in every respect list of January 1980 examination has become de-funct and inoperative. Granting relief to such petitioners for their appointment to Class I posts would amount to granting promotion to them from Class II to Class I in disregard of the claim of promotees and that would also result into upsetting the settled position of the seniority list. Therefore in every respect list of January 1980 examination has become de-funct and inoperative. Granting relief to such petitioners for their appointment to Class I posts would amount to granting promotion to them from Class II to Class I in disregard of the claim of promotees and that would also result into upsetting the settled position of the seniority list. The petitioners having accepted the appointments to Class II posts without any demur as back as 1980 now they cannot be permitted to claim appointment to Class I post on the basis of that very result. . ( 41 ) THERE is one additional reason why the contention of the petitioners of the aforesaid three petitions cannot be accepted. None of the petitioners before the learned single Judge in V. V. Brahmakshatriyas case belonged to select-list of January 1980 examination. The merit list of said examination became inoperative when December 1980 examination was held at the time proviso to Rule 3 was in force. This position of law accepted by the learned single Judge in V. V. Brahmakshatriyas case. In para II of the aforesaid judgment the learned single Judge observed as under:unamended Rule 3 will apply so far as the select-list of 1981 is concerned and amended Rule 3 so far as the select-list of 1983 is concerned. It becomes therefore clear that to the select-list of July 1980 unamended Rule 3 will apply. In para 20 of the said judgment the learned single Judge has observed as under:the figures of vacancies in 1979-80 and 1980-81 will also have no relevance because under Rule 3 as it stood then shortfall in direct recruits would lapse at the end of the unit year. In para 20 of the said judgment the learned single Judge has observed as under:the figures of vacancies in 1979-80 and 1980-81 will also have no relevance because under Rule 3 as it stood then shortfall in direct recruits would lapse at the end of the unit year. ( 42 ) THE learned Counsel for the petitioners have relied upon the decision of the Supreme Court in the case of R. S. Deodhar v. State of Maharashtra reported in A. I. R. 1974 SC 259 to submit that in the said case before the Supreme Court there was delay of more than 10 to 12 years in filing the petitions since the accrual of cause of complaint Objection on account of delay was not countenanced by the Supreme Court and the Court observed as under:in the first place it must be remembered that the rule which says that the Court may not enquire into belated and stale claims is not a rule of law but a rule of practice based on sound and proper exercise of discretion and there is no inviolable rule that whenever there is delay the Court must necessarily refuse to entertain the petition Each case must depend on its own facts The question as pointed out by Hidayatullah C. J. in Tilokchand Motichand v H. B. Munshi (1969) 2 SCR 824 (AIR 1970 S. C. 898) is one of discretion for this Court to follow from case to case There is no lower limit and there is no upper limit It will all depend on what the Breach of the Fundamental Rights and the remedy claimed are and how the delay arosehaving so staled the law the Court found that the petitioners in fact challenged the validity of the procedure for making promotion to the post of Deputy Collector and since the said procedure was not a thing of past but was still being followed the petition cannot be said to be belated petition However in that very paragraph the court has observed as under:it may also be noted that the principle on which the court proceeds in refusing the relief to the petitioners on the ground of laches or delay is that the rights which have accrued to others by reason of delay in filing the petition should not be allowed to be disturbed unless there is reasonable explanation for the delay This principle was stated in the following terms by Hidayatullah C. J. in (1969) 2 SCR 824 ( AIR 1970 SC 898 )THE party claiming Fundamental Rights must move the court before other rights come into existence The action of courts cannot emerge by reason of delay on the part of the person moving the court. Sikri, J. (as he then was) also restated the same principle in equally felicitous language when he said in R. N. Bose v Union of India (1970) 2 SCR 697 = ( AIR 1970 SC 470 ) It would be unjust to deprive the respondents of the rights which have accrued to them Each person ought to be entitled to sit back and consider that his appointment and promotion effected a long time ago would not be set aside after the lapse of a number of years ( 43 ) IN the case before me admittedly the petitioners have accepted the appointment to Class II posts pursuant to inclusion of their names in list of successful candidates of last examination Such appointment is accepted by them as back as 1980 At any point of time thereafter they have not challenged their appointments to Class II post or non-appointments to Class I posts They have also never contended that more vacancies were allocable to direct recruitment in the year 1980 and therefore they were entitled to be appointed to Class I They have without any demur accepted such appointments to Class II posts They belonged to Class II of GSE Services The persons who came to be promoted to Class II prior to them are their seniors In disregard of the claim of such persons who are their seniors in Class II they cannot now be permitted to stake their claim to Class I vacancies which were allocable to direct recruits as per reckoning of vacancies in accordance with the ratio of V. V. Brahmakshatriyas case ( 1990 (1) GLH 289 ). In so doing they are directly affecting the right of other innocent parties namely promotees belonging to Class II who are their seniors in that class. Once their claim is likely to affect large number of promotees objection based on the ground of delay and laches assumes importance and this Court would not issue any writ to unsettle the settled claim of promotees. The aforesaid decision therefore is of no avail. In my opinion the observations quoted hereinabove on the contrary justify this Court in not granting such a belated claim. ( 44 ) MR. K. I. Patel learned Counsel for petitioners also relied upon the decision of the Supreme Court in the case of Nand Kishore Nayak v. State of Orissa reported in AIR 1991 SC 1724 . In my opinion the observations quoted hereinabove on the contrary justify this Court in not granting such a belated claim. ( 44 ) MR. K. I. Patel learned Counsel for petitioners also relied upon the decision of the Supreme Court in the case of Nand Kishore Nayak v. State of Orissa reported in AIR 1991 SC 1724 . The Full Bench of Orissa High Court on an interpretation of relevant provisions of Orissa Education Act 1969 read with relevant Rules made therein came to conclusion that the fixation of date of superannuation of some teachers at 58 years and others at 60 years was violative of Article 14 of the Constitution of India. Based on such declaration of law the petitioners filed petition before the High Court and the High Court rejected that said petition on the grand that the same was filed after 41/2 years from the date of retirement of the petitioner. The Supreme Court also while reversing the judgment of the Orissa High Court found that the relief claimed by the petitioner was based on subsequent declaration of law made by the Full Bench of Orissa High Court. However the court held that the relief for payment of salary for the period of two years cannot be granted to the petitioner because he has not actually served. However the relief for the fixation of his pension was required to be granted. Therefore the Supreme Court in fact did not grant the relief when it has adverse effect on the State exchequer so far as the payment of salary for the period of two years was concerned. Secondly it was not the case where interest of other innocent parties vis-a-vis the petitioner before the Supreme Court were required to be balanced. This decision therefore can have no application to the facts and circumstances of the case before me. ( 45 ) MR. K. I. Patel learned Counsel for the petitioners has also submitted that when the decision is rendered by the court of competent jurisdiction the effect should be given to said decision by the Government and when large number of vacancies are found allocable to direct recruits in V. V. Brahmakshatriyas case the vacancies available to direct recruits should be made available to the successful candidates of those relevant years. Aforesaid submission cannot be accepted because of effect of aforesaid circular providing that select-list prepared by the Commission on the basis of competitive examination would remain in force till the results of next examination are declared. Therefore in every respect the select-list of July 1980 can have no operation for vacancies which are subsequently found to be allocable and such vacancies shall have to be treated as unfilled and therefore they were liable to lapse and have in fact lapsed. ( 46 ) FROM the aforesaid observations it becomes clear that the proviso to Rule 3 in its unamended form shall apply and accordingly the vacancies for direct recruits if they were not filled in would lapse at the end of the unit year i. e. 31/03/1981 ( 47 ) FOR the aforesaid four reasons I do not find any substance in the claims of the petitioners in the aforesaid three petitions for being appointed to Class I post. The aforesaid three petitions are therefore required to be dismissed. My answer to question Nos. The aforesaid three petitions are therefore required to be dismissed. My answer to question Nos. 1 and 2 therefore would be that the proviso to Rule 3 prior to its amendment operated in case of successful candidates of January 1980 examination so as to result into lapsing of unfilled vacancies of Class I post The aforesaid three petitions must therefore fail and are here dismissed ( 48 ) HOWEVER question numbers 1 and 2 do not stand answered so far as December 1980 examination is concerned Results of said examination was declared on 8-9-1981 The list of said examination would operate till the list of next examination was prepared on 21-9-1983 Therefore even if recruiting year was over unfilled vacancies of direct recruits upto 31/03/1982 would lapse as proviso to Rule 3 operated upto 21/05/1982 The unfilled vacancies thereafter shall have to be carried forward and to that extent the claim of the petitioners of Special Civil Application No. 7079 shall have to be examined only qua those vacancies which occurred after 21/05/1982 and before 2 1/09/1983 and which were not allotted to direct recruits Such unfilled vacancies allocable to direct recruits cannot lapse and therefore Special Civil Application No. 7079/90 cannot fail solely on the ground on which the aforesaid three petitions are rejected It as in that very sense that the learned single Judge in V V Brahmakshatriya s case observed that the State Government will have to set the clock back and for the purpose of applying the quota Rule and to consider the situation as it prevailed in the years 1981-82 and 1982-83 the list of 8 shall have to be given effect to and if the said list is not given effect to on the ground that the result of next examination was declared on 21-9-1983 the success of the petitioners in those petitions would only be a paper success The State Government cannot render the decision of the court nugatory by taking such a view and therefore the vacancies allocable to direct recruits as per the directions given in V. V. Brahmakshatriya s case (supra) shall have to be ascertained between 21st May 1982 to 21/09/1983 In fact the court directed the respondents in the said case to work out of the figures of total vacancies existing in the year 1983 and subsequent years taking each year as a unit Therefore at least for the vacancies occurring between the aforesaid two dates the fourth petition cannot be rejected on the ground on which the aforesaid three petitions are rejected In the case of fourth petition the amendment of Rule will have its effect and the vacancies cannot be treated as having lapsed At this stage I am not deciding the claim of the petitioners of that petition question No. III ( 49 ) IT shall have to be stated at the outset that the judgment delievered and the direction issued by the learned Single Judge in V. V. Brahmakshatriya s case was accepted by both the State Government and the Gujarat Public Service Commission None has preferred appeal against the said judgment and directions contained therein The Letters Patent Appeal referred hereinabove was prefer red by promotees and that also came to be rejected The Special Leave petition to Supreme Court is also preferred by the promotees It shall have therefore to be accepted that the State Government and the Gujarat Public Service Commission have accepted the said judgment and the directions of the learned single Judge in V. V. Brahmakshatriyas case and so far as they are concerned the directions contained therein have become final subject to any modification by the Supreme Court in the Special Leave petition preferred by the promotees. ( 50 ) THE main controversy between the parties arises from the fact that while specific observations were made by the learned Single Judge in V V Brahmakshatriyas case about the posts which were to be reckoned for the purpose of determining allocable vacancies no specific express and or clear-cut directions were issued to the Gujarat Public Service Commission to revise the select-list ( 51 ) IN V. V. Brahmakshatriyas case the learned single Judge categorically ruled that the State Government was required to take into consideration (i) vacancies in permanent post (ii) vacancies in temporary posts (iii) vacancies on account of retirement and (iv) vacancies on account of officers sent on deputation to other departments Having thus ascertained the vacancies which were required to be taken into consideration by the State Government for operating quota rule the learned Single Judge proceeded to consider the case of the petitioners before him and found that the Gujarat Public Service Commission has revised the select-list of 1981 under the directions given by the Division Bench in L. V. Ashras case Such revision will have retrospective effect in the sense that it will date back to the date on which the list was published i. e. 8/09/1981. It was that revised list which was to be operated and subsequent declaration of result on 21/09/1983 would not make any difference. It was in the sense that the Government was directed to set the clock back for the purpose of applying the quota rule Similarly the select-list of 1983 was also required to be revised by the Gujarat Public Service Commission and was in fact revised by the Gujarat Public Service Commission Such revision would also date back to the date of its publication i. e. 21/09/1983 However the learned single Judge did not give any specific direction to the Gujarat Public Service Commission to re-revise the aforesaid revised select-list although in view of his finding that different kinds of posts were to be taken into account for the purpose of ascertaining the vacancies he held that the State Government should take into account all the vacancies which arose in the year 1982-83 for considering the claim of the petitioners what could not be appointed in the aforesaid post in the year 1981-82. In para 29 of the judgment the learned single Judge observed as under for the purpose of applying the quota rule in the year 1981 the vacancies would include newly created posts vacancies existed on account of retirement promotion etc. and the vacancies arising out of the officers sent on deputation The ratio to be applied or working out vacancies available to the petitioners for appointment by direct selection would be as prescribed by Rule 3 Under Rule 3 this ratio was 1:3 upto 21/05/1982 and 1:4 thereafter If the vacancies in the year 1982 are not sufficient to accommodate all the petitioners the remaining petitioner will be considered for appointment in the vacancies allocable of direct recruits as aforesaid which arose between 1/04/1983 and 21/09/1983 the date on which the result of the next examination was declared ( 52 ) SIMILARLY in para 30 of the judgment he directed the respondents to operate and implement the revised select list prepared by the Commission However since the figures supplied by the petitioners and the State Government did not give correct picture he directed the respondents to work out the figures of total vacancies existing for the year 1983-84 and subsequent years taking each year as an unit and to give appointment to the petitioners from the date they were entitled. ( 53 ) IN my opinion though there is positive finding of the learned single Judge that the vacancies which ought to have been taken into account for the purpose of operating the quota rule were not taken into account and though he has given direction for taking four kinds of vacancies into consideration for the purpose of operating the quota rule he has failed or omitted to give direction to the State Government and the Gujarat Public Service Commission to re-revise the merit list of the years 1981 and 1983 At the same time he has directed the respondents which would include both the State Government and the Gujarat Public Service Commission to consider all such vacancies for the purpose of applying the ratio of direct recruits and the promotees and has further directed to give appointments to the petitioners of those petitions from the date they were entitled to such appointment. In-built in the aforesaid two directions is the direction at least to readjust the revised select-list In my opinion if such a direction is not read in the judgment the success of the petitioners would once again be meaningless because for the omission of the State Government to clearly determine the vacancies which were allocable to direct recruits the petitioners who found their berth in merit list of 1981 or 1983 cannot be deprived of their right to get appointment to Class I posts despite availability of said posts Had the State Government correctly ascertained the vacancies-by including the aforesaid four kinds of vacancies the number of vacancies allocable to direct recruits would have increased Had such increased vacancies been available to the State Government it would have sent its requisition accordingly to the Gujarat Public Service Commission and the Gujarat Public Service Commission would have accordingly prepared the selection on the basis of their examination for recruitment to Class I The omission to clearly earmark the vacancies allocable to direct recruits has resulted into denial to the then successful candidates of their just claim of being considered for Class I post because according to the State Government the Class I post were then not available while in reality and in actuality vacancies were available but the State Government has omitted to consider the four kinds of vacancies while determining the allocable vacancies for direct recruits Therefore the direction given by the learned single Judge in V. V. Brahmakshatriyas case which came to be confirmed by the Division Bench in Letters Patent Appeal cannot be rendered meaningless and inoperative or success of the petitioners of all those petitions cannot be turned into mirage by the State Government by submitting that though the vacancies were available there was no direction to re-revise the merit list and therefore those vacancies from 1982 and carried forward and the petitioners despite their success cannot get any concrete result because the select-list and the wait-list were already exhausted by giving appointment to the candidates as appropriate time and place From the affidavit-in-reply of Mr. D. V. Trivedi referred to hereinabove it becomes abundantly clear that the State Government has calculated the vacancies as per the directions given by the learned single Judge by taking into account all the four types of vacancies However such vacancies are not filled in and they are carried forward from 21/05/1982 till date and they are sought to be now advertised for preparing fresh merit-list The success of the petitioners in V V Brahmakshatriyas case is thus turned into mirage by the stand of the State Government I therefore agree with the learned Counsel for the petitioners that there is an in-built implied direction contained in the judgment of the V V Brahmakshatriyas case which called for revision of select-list on working out the figures of total vacancies thus available for the years 1983 and 1984 and subsequent years taking each year as an unit If this position is accepted there is in some of the successful candidates of said list a right of being considered for appointment to Class I post and such a right cannot be denied to them ( 54 ) THE second part of question No. 3 namely as to whether the direction in V. V. Brahmakshatriyas case were to be confined only to the petitioners of those petitions before the learned single Judge or the benefit thereof was to be made available to all the successful candidates Mr. J. R. Nanavaty and Mr. H. M. Mehta learned Counsels for promotees have submitted that the learned single Judge has specifically at every stage directed to take into consideration the allocable vacancies for the purpose of applying the quota rule and to consider all the vacancies including the vacancies arising on account of creation of new posts vacancies arising on account of retirement promotion etc. and vacancies arising on account of officers sent on deputation and to give appointment to the petitioners from the date they were entitled to In their submission therefore the present petitioners cannot get any benefit of the said direction Mr. and vacancies arising on account of officers sent on deputation and to give appointment to the petitioners from the date they were entitled to In their submission therefore the present petitioners cannot get any benefit of the said direction Mr. H. M. Mehta has relied upon the decision of the Supreme Court in the case of Somannagada v. State of Karnataka reported in AIR 1992 SC 80 In the case before the Supreme Court only two candidates were aggrieved by appointment given to other persons and by the action of their non-selection and denial of appointment to them They therefore filed petition before the Karnataka Administrative Tribunal which came to be dismissed While allowing the Special Leave Petition the Court directed the respondents to give appointment to the said two petitioners on the post of Assistant Engineers (Mechanical) in Public Works Department When it was pointed out to the Court that there were many other candidates who have secured much higher marks than the petitioners the court directed that since recruitment was made as back as 1987 and since only those petitioners have approached the Court the case of other candidates cannot be considered as they never approached for redressal within reasonable time Based on the aforesaid order passed by the Supreme Court Mr. Mehta submitted that the directions contained in the judgment of V. V. Brahmakshatriyas case should at the most be confined to the petitioners only and not to all the successful candidates. ( 55 ) IN my opinion the aforesaid objection raised by Mr. M. H. Mehta cannot be accepted In the context of confirming the direction issued by the Division Bench in L. V. Ashras case the petitioners of those petitions only contempt petitions being Miscellaneous Civil Application Nos. ( 55 ) IN my opinion the aforesaid objection raised by Mr. M. H. Mehta cannot be accepted In the context of confirming the direction issued by the Division Bench in L. V. Ashras case the petitioners of those petitions only contempt petitions being Miscellaneous Civil Application Nos. 90 100 and 101 of 1986 were filed before the Division Bench of this Court and Justice A. M. Ahmadi (as he then was) speaking on behalf of the Division Bench in the judgment and order dated 5 negatived the contention that the directions of said judgment were only to be confined to the petitioners of those petitions and held as under:the petitioners would undoubtedly be entitled to be placed on the revised lists in accordance with merit but we do not read the observations of the Division Bench to mean that a candidate with better merit should be excluded merely because he was not one of the petitioner in the writ petitions in which the judgment under consideration was rendered To take such a view would mean that only those who could afford to litigate would be entitled to entry into the revised lists and others who could not and did not litigate but were far more meritorious than the petitioners should be left out altogether. All that this Court did was to inform the Commission that it had adopted the method which was not permissible and indicated the correct method which should be applied for the purpose of preparing the merit-lists. On that basis if any candidate who is found to be more meritorious than the petitioners must be included in the revised lists for otherwise it would only entail a further round of litigation. To the same effect is the judgment of the Supreme Court in the case of Prof. C. D. Thase v. University of Bombay when Justice A. M. Ahmadi while granting the Special Leave Petition of the University for his placement in the higher scale also directed that same benefit should be extended to other similarly situated persons who had not approached the Supreme Court. ( 56 ) I am therefore of the opinion that the benefit of the directions contained in V. V. Brahmakshatriyas case cannot only be confined to the petitioners of those petitions and it shall have to be extended to the successful candidates of the said examination to the extent directed hereinafter. ( 56 ) I am therefore of the opinion that the benefit of the directions contained in V. V. Brahmakshatriyas case cannot only be confined to the petitioners of those petitions and it shall have to be extended to the successful candidates of the said examination to the extent directed hereinafter. Question No. IV ( 57 ) AFTER coming into force of aforesaid G. S. E. Class I and Class II Rules the first examination for direct recruits was held in January 1980 results whereof were declared in July 1980. For applying quota rule financial year is taken as unit. For the year 1979-80 the unit would expire on 31st March 1980 and all the vacancies allocable to direct recruits which remained unfilled lapsed because of application of unamended proviso to Rule 3. For the year 1980-81 the results of the examination held in January 1980 were available in July 1980 and successful candidates from such list could have been appointed as against the vacancies available for Class I posts. For the next financial year 1981 examination was conducted in December 1980 results whereof were available on 8-9-81. The financial year as a unit would expire on 31st March 1982 and all the vacancies of Class I post shall have to be filled in before the said date. Since the unamended proviso to Rule 3 was then operative on 3 1/03/1982 the unfilled vacancies available to Class I shall lapse. ( 58 ) THE Legislature then stepped in and amended Rule 3 by deleting the proviso to Rule 3 and also by changing the ratio of direct recruits and promotees from 1:3 to 1: 4. The effects of the said amendment is that the vacancies which were not so filled in shall be carried forward and reckoned in the subsequent years. Therefore the vacancies which were available for making appointments by direct selection from 21/05/1982 thereafter shall have to be carried forward. ( 59 ) MR. A. H. Mehta and Mr. M. R. Anand who have mainly contended before the Court on behalf of the petitioners submitted that under the aforesaid rules appointment to Class I post shall have to be made from common list of successful candidates depending upon the number of vacancies available from 1983-84 onwards. ( 59 ) MR. A. H. Mehta and Mr. M. R. Anand who have mainly contended before the Court on behalf of the petitioners submitted that under the aforesaid rules appointment to Class I post shall have to be made from common list of successful candidates depending upon the number of vacancies available from 1983-84 onwards. They submitted that the entire controversy can be divided into three parts i. e. (i) period prior to 8-9-1981 (ii) between 8-9-1981 to 21-9-1983 and (iii) period beyond 21-9-1983 till date. In their submission the Government and the Gujarat Service Commission have not correctly understood the judgment of the learned single Judge in V. V. Brahmakshatriyas case. They mainly contended entirely of selection process both for Class I and Clasa II is common. The advertisement notifying the vacancies and inviting the candidates to appear at the examination is common. The examination conducted by the Gujarat Public Service Commission is common. The curriculum and the papers of examination meant for Class I and Class III posts are common. There is therefore no justification in treating the list of successful candidates for Class I and list of successful candidates for Class II as separate list. They submitted that as admitted by the Gujarat Public Service Commission in earlier affidavit-in-reply to which detailed reference is made hereinabove the examination is common for both GSE Class I and GSE Class II. Result thereof is arranged in order of merit of the candidates and the appointment to Class I or Class II is made seriatim from the list of result prepared for the two cadres by the Gujarat Public Service Commission. The qualified candidates securing higher place in the order of merit shall be offered appointment in GSE Class I according to number of vacancies declared for such recruitment to that cadre. The candidates securing next higher place in order of merit in the list shall be offered appointment to GSE Class II. In my opinion the learned Counsels are right in their submissions and the five undisputed propositions which I have referred to hereinabove in Para (14) emerge from the conduct of examination and assessment of answer books by the Gujarat Public Service Commission. In my opinion the learned Counsels are right in their submissions and the five undisputed propositions which I have referred to hereinabove in Para (14) emerge from the conduct of examination and assessment of answer books by the Gujarat Public Service Commission. ( 60 ) THE learned Counsels submit that Once it is found by the Court that the list prepared by the Gujarat Public Service Commission is in fact one common list those who remained in the waiting list shall have to be considered for appointment to Class I post if they are found fit because subsequent to 1983 no further examination was held and the vacancies were required to be carried forward. They further submit that from joint reading of Rules 4 and 5 of the Examination Rules and the affidavit-in-reply filed by the Gujarat Public Service Commission in earlier proceedings it becomes clear that the list of successful candidates prepared by the Gujarat Public Service Commission pursuant to February 1982 examination is the only list which was operative from vacancies in Class I posts which were then existing and which have arisen subsequently are required to be filled in by operating the said waiting list. They submit that the Gujarat Public Service Commission has admittedly revised the merit-list of September 1983 pursuant to the direction given by the Division Bench in L. V. Ashras case. Such revision has taken place in the year 1986. However they submit that subsequent to the judgment of the learned single Judge in V. V. Brahmakshatriyas case no revision of list is undertaken by the Gujarat Public Service Commission. In their submission there is inherent direction in the judgment to revise the list because the learned single Judge clearly for the first time earmarked the vacancies which are to be reckoned for the purpose of applying the quota rule. Those vacancies were not admittedly taken into account by the Government and the Gujarat Public Service Commission. Therefore the State Government was required to take into account all those vacancies which were hereto ignored and on the basis of such vacancies the availability of posts for direct recruits was to be determined. Those vacancies were not admittedly taken into account by the Government and the Gujarat Public Service Commission. Therefore the State Government was required to take into account all those vacancies which were hereto ignored and on the basis of such vacancies the availability of posts for direct recruits was to be determined. Once said posts for direct recruits were determined the select-list/wait-list of candidates prepared by the Gujarat Public Service Commission was required to be further revised so as to offer appointment to all the successful candidates as per their merit as against the vacancies available in view of the judgment in V. V. Brahmakshatriyas case. They have also referred to the affidavit-in-reply filed by one D. V. Trivedi Deputy Secretary to the Government of Gujarat and have submitted that the Gujarat Public Service Commission has prepared the result in accordance with rules by specifying qualifying marks for appointment to the posts of Class I and Class II separately. However from the further avernments made in the said affidavit-in-reply they submitted that it is the stand of the Government that so far as the preparation of select-list is concerned the Gujarat Public Service Commission is required to prepare select-list consisting of total number of candidates as per existing requisition sent by the Government for the respective posts. The Government has then sent requisition of 12 posts only and therefore select-list of 12 candidates was only prepared by the Gujarat Public Service Commission. Pursuant to the direction given in L. V. Ashras case said list was revised by publication of revised result in Govt. Gazette dated 3-4-86. Because of said revision a wait-list for Class I was prepared and 11 candidates were included in the wait-list for appointment to the Class I posts. Said revised list was published before the judgment in V. V. Brahmakshatriyas case. It is also admitted in the said affidavit-in-reply that in V. V. Brahmakshatriyas case the learned single Judge had issued direction to maintain quota considering the vacancies as mentioned in the said judgment and to give appointment to the candidates on the vacancies available for direct recruits. It is their case that the Government has accordingly calculated the vacancies for quota rule meant to direct recruits but has not considered the candidates of the said list of 1993 for appointment. to class I posts. It is their case that the Government has accordingly calculated the vacancies for quota rule meant to direct recruits but has not considered the candidates of the said list of 1993 for appointment. to class I posts. The stand of the Government is that since the select-list and wait-list for appointment to posts of Class I have been already exhaused the question for continuation of said list for the purpose of giving appointment to the Class I would not arise. . ( 61 ) FROM the aforesaid affidavit-in-reply of Mr. D. V. Trivedi three factors clearly emerge i. e.- (I) Vacancies which were to be earmarked as allocable for direct recruits as per V. V. Brahmakshatriyas case were calculated by the State Government but since revised select-list and wait-list dated 3-4-86 have been exhaused the said lists were not treated as continuing for the 4 of giving appointment to Class I post; (II) the vacancies allocable to direct recruits as per V. V. Brahmakshatriyas case have been worked out for the period from 21/05/1982 and onwards and they have been carried forward and requisition thereof has been sent to Gujarat Public Service Commission requesting to recommend the suitable candidates for appointment to said posts; and: (III) pursuant to observations made by the learned single Judge in V. V. Brahmakshatriyas case no revised selectlist/wait-list was prepared nor were the candidates offered appointment on Class I post and all the vacancies were found allocable to direct recruits are carried forward. ( 62 ) AS against aforesaid submission of the learned Counsel for the petitioners the learned Counsel for promotees have submitted that only those posts which were notified and advertised by the Gujarat Public Service Commission should be treated as available for being filled in by direct selection. Those posts which are earmarked subsequently or which are determined subsequently pursuant to directions given by the learned single Judge in V. V. Brahmakshatreiyas case should not be made basis for operating the select-list. submitted that obviously said additional posts cannot lapse and shall have to be carried forward but the candidates who appeared in 1982 examination cannot bank upon their performance in 1982 to stake their claim for appointment to vacancies which have arisen subsequently. submitted that obviously said additional posts cannot lapse and shall have to be carried forward but the candidates who appeared in 1982 examination cannot bank upon their performance in 1982 to stake their claim for appointment to vacancies which have arisen subsequently. In their submission since quota and seniority are inter-linked if the successful candidates of 1982 are to be given appointment on vacancies which are earmarked for the relevant year they would get seniority over promotees who are already promoted prior to them. They further submit that in V. V. Brahmakshatriyas case the learned single Judge has not given any direction for revision of select-list/ wait-list and accordingly the vacancies which were to be given effect to by operating the aforesaid merit-list. They submit that the observations made in V. V. Brahmakshatriyas case for setting the clock back in para 18 of the judgment were only to save pre-1983 selectees from the operation of lapsing of quota and cessation of operation of the list. Since after 1983 there was no lapsing of quota the vacancies were to be carried forward and they shall have to be filled in on the basis of fresh selection which is now sought to be undertaken by the Gujarat Public Service Commission. ( 63 ) THEY further submitted that the attempt of the present petitioners is to get revised the entire merit-list and in fact that was not the direction given by the learned single Judge. The direction was to consider the cases of the petitioners only. They further submitted that it was not and perhaps it could not have been the intention of the learned single Judge to direct the implementation of the said wait-list for all posts which may become available for all times to come. The learned single Judge never wanted to make merit-list of 1983 a perpetual list entitling every individual thereof to a Class I post as and when such posts are available in future. In their submission the effect of deletion of proviso to Rule 3 is intended to ensure maintenance of balance between the direct recruits and promotees. The deletion of proviso would tantamount to mandate the State Government to make good the shortfall in the quota of direct recruits. The State Government wanted to save the character of number of posts. In their submission the effect of deletion of proviso to Rule 3 is intended to ensure maintenance of balance between the direct recruits and promotees. The deletion of proviso would tantamount to mandate the State Government to make good the shortfall in the quota of direct recruits. The State Government wanted to save the character of number of posts. It never wanted to confer any right on selectees of the yester year to claim such posts as and when such posts would fall vacant in future. In their submission what was accepted by deletion of proviso was carrying forward of the unfilled vacancies and not carrying forward of the claim of wait listed candidates. They vehemently submitted that those candidates who have accepted appointment to Class II posts pursuant to inclusion of their names in the select-list of Class II cannot now seek revival of the exhausted list so as to claim their berth in Class I post. Accordingly to them the only permissible method of their transmission to Class I is by promotion and they cannot get Class I post by this cricuitous method. In fact such candidates are interviewed by the Gujarat Public Service Commission and are found fit for Class II and they cannot be automatically treated as selected for Class I. Since for Class I 60% of marks are required as against 45% of marks for Class II there cannot be a common yardstick for preparation and operation of such a merit-list. Lastly it is submitted by them that rightly or wrongly the Gujarat Public Service Commission has prepared select-list and wait-list for the posts of G. S. E. (Civil) Class I and G. S. C. (Civil) Class II separately. The petitioners who were admittedly included in the list meant for G. S. E. Class II can claim appointment only to the post of said class and since they were already offered appointment to said post which they have accepted without demur they cannot be permitted now to claim appointment to Class I post while not finding their berth at all anywhere in the list for Class I. Since the select-list and wait-list for appointment to G. S. E. Class I are already exhausted the question of continuance of said list for the purose of giving appointment to the post of G. S. E. Class I should not and in fact does not arise. ( 64 ) IN view of my findings on question No. 3 I am of the opinion that there was in-built inherent direction in the case of V. V. Brahmakshatriya to the State Government to take into consideration the four types of vacancies for the purpose of applying quota Rule and to work out the figures of total vacancies in the year 1983-84 and subsequent years taking each year as a unit. The ratio to be applied for working out the vacancies available for appointment by direct selection shall be as prescribed by Rule 3. Since proviso to Rule 3 has been deleted with effect from 21/05/1982 the vacancies which were required to be filled up by direct selection and which were not so filled up were ordered to be carried forward and reckoned in the subsequent years and respondents were directed to consider all the vacancies for the purpose of applying the ratio of direct recruits to promotees. As found by me such direction cannot be turned into a mere paper success or mirage and therefore such direction shall have to be reasonably operated for the vacancies which were really allocable for each recruitment year. The successful candidates of said list cannot be denied the benefit of directions contained in the V. V. Brahmakshatriyas case for the objections put forth by the learned Counsel for the promotees. True it is that said list cannot be operated for all times to come and for all vacancies arising in subsequent years but at the same time for vacancies which were really allocable to direct recruits in the recruitment years 1982-83 1983 1984 1985 their entitlement to Class I post shall have to be considered consistent with efficiency of administration. ( 65 ) THE next important question is that if the successful candidates of 1981 and 1983 are entitled to stake their claim for available vacancies for being considered for Class I post how long such claim for consideration would last and whether the merit-list of 1983 would operate for all times to come so as to permit the candidates of 1982 to stake their claim for vacancies which occur red subsequently or till 1992 Ordinarily a successful candidate at Gujarat Public Service Commission examination can stake his claim to the vacancies then existing or to the vacancies which would have been otherwise available on correct calculation for that particular year. Therefore it shall have to be determined as to how many vacancies were available upto 8/09/1982 i. e. the date of declaration of the first list and 21/09/1983 i. e. the date of declaration of second list. To those vacancies the candidates of 1981 list cannot stake their claim. The candidates of 1981 list cannot stake their claim based over the vacancies which were liable to lapse on completion of financial year and such vacancies should be treated as lapsed on 31/03/1982. In view of deletion of the proviso to Rule 3 there would be no lapsing of vacancies which have occurred thereafter. However since the select-list continues till another select-list is prepared on 21/09/1983 the successful candidates of 1981 select-list can stake their claim to the vacancies which occurred after 21/05/1982 and in my opinion all such vacancies which were available shall have to be treated as allocable to the candidates of 1981 select-list and those candidates who are entitled to such vacancies as per their position in the merit-list are entitled to be considered for appointment. ( 66 ) SIMILARLY for the merit-list of 21/09/1983 which was meant for those vacancies which were available till 31/03/1984 all such vacancies should be available to the candidates who found their berth in the merit-list of 21/09/1983. However since no examination is held thereafter and that was the only select-list available till the matter came to the High Court in L. V. Ashras case (Spl. C. A. 3820/81 D/5-11-84) it would be just and proper to direct the Government to re-revise the said select-list of 21/09/1983 and to make available all vacancies which were then existing and which were available to the direct recruits. The judgment in L. V. Ashras case was rendered on 5/11/1984 and the directions given by the Division Bench were carried out by the Gujarat Public Service Commission by publishing the revised select-list on 3-4-1986. It would therefore be just and proper to direct the State Government to allot all the vacancies upto 31/03/1986 to the successful candidates of 21 and to consider the claim of such successful candidates as against such allocable vacancies upto 31st March 1986. It would therefore be just and proper to direct the State Government to allot all the vacancies upto 31/03/1986 to the successful candidates of 21 and to consider the claim of such successful candidates as against such allocable vacancies upto 31st March 1986. ( 67 ) THE moot question which now arises for consideration is as to whether the successful candidates of 21/09/1983 can stake their claim for vacancies which have subsequently arisen for all times to come till date so as to make them eligible for appointment to all Class I posts ? So far as this claim is concerned in my opinion the State Government is well justified in contending that on inclusion of name in the merit-list a candidate can stake his claim for consideration for such vacancies which were then available or which would have been available in the near future of in the reasonable vicinity from the date of the preparation of list. They cannot contend that on failure to prepare the next list the earlier merit-list should be operated for all times to come so as to confer right on them of being considered for any vacancy that might arise. This would be quite contrary to the spirit of infusing fresh blood in administration. This would also permit a candidate of 1982 to stake his claim for vacancies which might arise in the year 1992. This was not and should not be the intention of the framers of Rule nor can the quota rule be so operated so as to permit the successful candidates of yester year to stake their claims for future years. I am of the opinion that the objections put forth by the promotees as well as by the State Government against operating such a list beyond particular time is well founded and shall have to be accepted. ( 68 ) FIRSTLY the merit-list of September 1983 was legitimately meant for vacancies then notified or vacancies which could have been legitimately notified and not beyond the legitimately allocable vacancies to direct recruits. Secondly on operating such list if all the vacancies are filled in or after revising the same all vacancies are filled in the list gets exhausted and it shall have to be treated de-funct. Secondly on operating such list if all the vacancies are filled in or after revising the same all vacancies are filled in the list gets exhausted and it shall have to be treated de-funct. Thirdly the candidates who opted for recruitment to Class I as well as Class II of G. S. E. Service and those who have been put in the merit-list of Class II and have been accordingly appointed cannot stake their claim for all time to come for being considered for appointment to Class I post (by way of direct recruitment and not by way of promotion) simply because issuance of directions by the Division Bench of this Court in L. V. Ashras case (supra) has aroused their expectation. They having accepted appointments in Class II and having worked thereon for such a long period and having at no point of time agitated their claim for appointment to Class I post cannot press their claim as against vacancies which have arisen after 31/03/1986 or after reasonable lapse of time from the date of their appointment Fourthly not holding of subsequent examination by the Gujarat Public Service Commission was referrable to various conditions as set out in the affidavit-in-reply filed by D. S. Diwan Deputy Secretary to the Government of Gujarat Roads and Buildings In fact for the years 1982-83 and 1983 necessary requisitions for direct recruits were sent to Gujarat Public Service Commission but the Gujarat Public Service Commission could not held the examination and could not recommend suitable candidates Subsequently there has been scarcity/drought situation prevailing in the State and by way of economy measures the Government had banned direct recruitment in Government services and therefore the requisitions for said posts could not be sent to the Gujarat Public Service Commission. For how long such situation continued is unfortunately not clearly stated in the affidavit Subsequently also the Government has not sent requisition to the Gujarat Public Service Commission for appointment to G. S. E. Class I and Class II posts The ban imposed by the Government on fresh recruitment by way of economy measure was operative only against direct recruitment and there was no ban on promotion and therefore as per administrative exigencies the Government has promoted eligible and suitable officers of G. S. E Class II to the post of Executive Engineers It should also be stated that the directions given by the Division Bench in L. V. Ashras case were to be carried out and in fact they were carried out by March 1986 and there was subsequent spate of litigation which raised further questions because of which the entire situation was in a fluid state Neither the Government nor the Gujarat Public Service Commission was in a position to determine with exactness the steps expected of them In that view of the matter the benefit on inaction and/or no action on the part of the State Government or the Gujarat Public Service Commission cannot go to the successful candidates of September 1983 Such ccandidates cannot be permitted to contend that since no subsequent examination is held the said list of successful candidates should be operated till exhausted so as to permit them to stake their claim to Class I posts As stated hereinabove their claim could be lawfully restricted to the vacancies then notified and exhausted or at the most it could be extended to the vacancies which were lawfully allocable to direct recruits as and when the list was prepared or when the directions were given in L. V. Ashras case to revise the list which would bring the Court to date of 31/03/1986 I for one would like to confine the directions to one specific unit which would expire on 3 1/03/1986 so that clear picture is available in future both to the State Government and to the Gujarat Public Service Commission and all speculations and expectations on the part of the candidates of 1983 come to an end Those candidates who appeared in 1982 examination cannot be permitted to expect for all times to come their berth in Class I post on the basis of their success in 1982 examination despite the fact that they have accepted berth in Class II Fifthly directing the Gujarat Public Service Commission and the State Government to operate the said list by re-revising the same would amount to permitting transmission to candidates already appointed to Class II as back as 1982 to Class I because of subsequent occurrence of vacancies which is not permissible under any circumstances Those who have accepted appointment to Class II post have accepted condition No. 3 which is attached to the selection list The said Condition No. 3 inter alia provides that any candidate whose name is once recommended and who accepts appointment pursuant to such recommendation shall have no right thereafter in connect on with his position in the merit-list It would mean that once pursuant to recommendation appointment is given to a candidate and once he has accepted su ch appointment his name shall have to be treated as deleted from the merit-list and so far as such candidate is concerned the matter is closed for ever Sixthly accepting the submission of successful candidates so as to permit them to stake their claim for all vacancies which may arise in future would also amount to doing injustice to the promotees inasmuch as such candidates having accepted their berth in Class II posts would steal a march over promotees by getting berth in Class I post because of fortuitous circumstances of not holding of any subsequent examination for a period of more than 8 to 10 years Seventhly the very purpose of deletion of proviso to Rule 3 is to carry forward the vacancies which are not filled in and therefore those vacancies which are not filled in beyond 3 1/03/1986 shall have to be carried forward and shall have to be made available to fresh candidates from the open market and the 1982 candidates cannot be permitted to stake their claim as against such vacancies and lastly the very purpose of quota rule will be frustrated if under the guise of direct recruitment instead of infusing fresh blood from the open market the Government is directed to appoint departmental candidates Fresh candidates from the open market who have recently acquired educational qualifications would find no berth whatsoever in Engineering services and even otherwise from 1986 to 1992 it is too long a period for which denying opportunity to such fresh candidates can be justified The accumulated quota of vacancies must legitimately belong to them and fresh candidates from open market must have at least chance of being considered for such appointment Unfortunately because of the reasons stated hereinabove number of them might have become age-barred and number of them might have accepted employment elsewhere since the G. S. E. Class I and Class II did not offer any opportunity to them even to put forth their claim for consideration Now when time has come for fresh unemployed graduates to stake their claim for at least being considered for appointment to GSE Class I and Class II posts as against legitimate quota of vacancies available to them the employees of yester year cannot come forward to make their future so as to mar the future of these fresh candidates For the aforesaid reasons I am of the opinion that all the accumulated vacancies of G S. E. Class I and Class II beyond 31/03/1986 shall have to be carried forward and Gujarat Public Service Commission shall have to be permitted to proceed further with holding of examination for preparation of select-list for filling in such vacancies None of the petitioners or any candidate included in the merit-list of September 1983 can be permitted to stake his claim for such vacancies excepting to the extent stated hereinabove ( 69 ) AFTER the arguments were over in this group of petitions I called upon the State Government to supply to the Court the exact number of vacancies in the posts of Executive Engineers in Gujarat Service Engineer Class I on account of the new creation of posts retirement transfer on deputation promotion to higher post and posts becoming available to the direct recruits and promotees for the period from 21/05/1982 to 31/03/1992 calculated as per the directives given by the learned single Judge in V. V. Brahmakshatriyas case The State Government has supplied two statements one for Narmada and Water Resources Department and another for Roads and Buildings Department The State Government has also supplied the position of vacant posts which were available between 1-4-1979 to 21st May 1982 in the ae aforesaid two departments ( 70 ) AS per the statement supplied to the Court copies whereof were given to the learned Counsel for the petitioners for the period between 1 to 21/05/1982 the unfilled vacancies which were allocable to direct recruits in Narmada and Water Resources Department is stated to be 24 However such vacancies shall have to be treated to have lapsed and they cannot be carried May 1982 Similarly the unfilled vacancies for the aforesaid period in Roads and Buildings Department which were allocable to direct recruits are stated to be 12 For the reasons aforesaid the said vacancies should also lapse because of operation of Rule 3 of Recruitment Rules prior to 20/05/1982 ( 71 ) THE details of vacancies which are made available from 21/05/1982 to 31/03/1992 in Narmada and Water Resources Department are slated hereunder in tabular form -- Sr. Department year total No. of posts posts No. posts (8-9) available allocable to to direct promotees recruitment 1 Narmada and Water 21-5-82 to 26 5 21 Resources Dept. 31-3-83 to 2 1 to 24 5 19 21 3 22 to 25 1 5 20 31 4 1 to 20 1 4 16 31 5 1 to 37 1-4-86 7 30 31 6 1 to 20 1-4-87 4 16 31 7 1 to 49 1-4-88 10 39 31 8 1 to 23 1-4-89 5 18 31 9 1 4 to 124 1-4-90 25 99 31 10 1 to 80 1-4-91 16 64 31 11 1 to 91 1-4-92 18 75 31 - TOTAL 521 104 417 -- The details of vacancies which are made available from 21/05/1982 to 31/03/1992 for Roads and Buildings Department are stated herein in the tabular form -- Sl. Department year total No. of posts posts No. posts (7-8) allocable to allocable to direct promotees recruitment 1 R and B Dept. Department year total No. of posts posts No. posts (7-8) allocable to allocable to direct promotees recruitment 1 R and B Dept. 21-5-82 to 13 3 10 31 2 1 to 4 1 3 21 3 22 to 5 1 4 31 4 1984 9 2 7 5 1985 3 - 3 6 1986 19 4 15 7 1987 21 4 17 8 1988 23 5 18 9 1989 16 3 13 10 1990 43 9 34 11 1991 24 4 20 -- Total 180 36 144 ( 72 ) FROM the aforesaid tabular statement of Narmada and Water Resources Department the correctness and accuracy whereof cannot be seriously disputed it becomes clear that from 21/05/1982 to 3 1/03/1983 and upto 21 in all 50 actual vacancies were available as against which ten vacancies were allocable to direct recruits and 40 vacancies were allocable to promotees The list of successful candidates of 1981 would operate till the list of successful candidates of 1982 examination was available i. e. on 21-9-83 Had the aforesaid ten vacancies been clearly earmarked and allocated to direct recruits the successful candidates of 1981 examination could have been appointed on the post of Executive Engineers ( 73 ) FROM the aforesaid tabular statement of vacancies in Roads and Buildings Department the correctness and accuracy whereof cannot be seriously disputed it becomes clear that from 21/05/1982 to 31/03/1983 and upto 21-9-1983 in all 17 vacancies were available as against which four vacancies were allocable to direct recruits and 13 vacancies were allocable to promotees The list of successful candidates of 1981 would operate till successful candidates of 1982 examination were available i. e. on 21-9-1983 Had the aforesaid three vacancies been clearly earmarked and allocated to direct recruits the successful candidates of 1981 examination could have been appointed on the post of Executive Engineer in the department ( 74 ) THE aforesaid 10+3 (13) vacancies are actually accumulated and have not lapsed The petitioners in Special Civil Application No. 7079 belonged to the list of 1981 and they staked their claim for being considered for Class I post In view of my findings stated hereinabove the petitioners of this petition and the other similarly situated persons belonging to list of 1981 shall be entitled to be considered to Class I post as against the said aforesaid 13 vacancies which were allocable to direct recruits as per the correct position of law and which were in fact not allocated to them Similarly from 22-9-1983 to 31 in all 99 vacancies were available out of which 16 posts were allocable to direct recruits in Narmada and Water Resources Department and three posts were allocable to direct recruits in Roads and Buildings Department and rest of the posts were allocable to the promotees As against 16 vacancies allocable for direct recruits in Narmada and Water Resources Department five direct recruits were selected between 22-9-83 to 31 and therefore 11 posts were available to the candidates from the list of 21-9-1983 Similarly as against three vacancies available for direct recruits in Roads and Buildings Department actually seven direct recruits were recruited between 22-9-83 to 31-3-84 and therefore there was over appointment than the quota prescribed during the said period In the Roads and Buildings Department therefore no posts were available for direct recruits during the aforesaid period Since I have already reached the conclusion that the said list cannot be operated for all times to come all the vacancies arising after 1-4-1986 shall have to be filled in by conducting fresh examination The petitioners of the rest of the petitions belonging to September 1983 list and persons similarly situated shall be entitled to stake their claim for the aforesaid 11 posts of Class I and shall be entitled to be considered for appointment to Class I post as against quota allocable to direct recruits ( 75 ) THE question which is required to be considered is as to whether the petitioners or any other persons from the select-list of successful candidates of 21-9-83 will be entitled to appointment to Class I post as such without any suitability lest or they should be subjected to fresh process of selection by G. P. S. C. It shall have to be noted that the petitioners of the rest of the petitions and the persons similarly situated have appeared in the examination and are declared successful but their names are included in the select-list/ wait-list of Class II In fact the petitioners and other persons similarly situated have accepted appointment to Class II post and are discharging their duties as Deputy Executive Engineers They were thus selected for Class II post and they were never assessed for Class I post In my opinion when the petitioners were included in the list of successful candidates of Class II and when it is found by this Court that the vacancies allocable to direct recruits for the said year were not actually allocated it would be just and proper to direct the Gujarat Public Service Commission to hold a fresh salability lest from amongst those successful candidates of 8-9-1981 and 21-9-1983 to assess their suitability as against aforesaid 21 vacancies Candidates of 1981 list will be assessed for ten vacancies and candidates of 1983 vacancies will be assessed for 11 vacancies. If other candidates from the list of 1981 are not available the balance vacancies out of said ten vacancies shall be carried forward and made available to successful candidates of 21-9-1983 The Gujarat Public Service Commission is directed to undertake the exercise of assessing the suitability of the candidates from the aforesaid list within a period of three months and those candidates as per their position in the list who are found suitable for Class I appointment are directed to be appointed to Class I post The petitioners and other similarly situated persons shall be given appointment on the aforesaid vacancies from the date they are entitled to without giving them any monetary benefits for the period from the date they are entitled to the appointment to the date they are actually appointed As regards giving them deemed date of appointment to Class I post it is directed that the petitioners and the respondents shall abide by the ultimate directions which the Supreme Court gives in Special Leave Petition which is pending before the Supreme Court The respondents are directed to carry out the aforesaid directions within four months from today ( 76 ) AS regards rest of the vacancies slated hereinabove in the tabular form the Gujarat Public Service Commission is directed to proceed further with the process of fresh selection by issuing advertisement and by inviting fresh candidates from the open market to appear for such post The procedure stipulated by the Rule shall be followed and such posts shall be filled in as early as possible so that before commencement of next year beginning from 1-4-1993 fresh blood from the open market gets the right of being considered for vacancies which ultimately belong to them ( 77 ) FOR the reasons aforesaid : (I) The Special Civil Application No. 8239/91 616 903 fail and are hereby dismissed Rule issued in the said petitions is discharged with no order as to costs. (II) The Special Civil Application No. 7079/90 partially succeeds and rule is made absolute to the aforesaid extent with no order as costs (III) The rest of the Special Civil Applications are also partially allowed to the aforesaid extent so as to direct the respondents to consider the aforesaid vacancies as available to the successful candidates of 21-9-1983 The petitioners and other successful candidates similarly situated as per their merit and position in the list of successful candidates are ordered to be subjected to suitability test by the Gujarat Public Service Commission for Class I posts and on their being successful in such suitability that they are entitled to be appointed to Class I post without giving them any monetary benefit for the period from the date they are entitled to the appointment to the date they are actually appointed As regards their claim for deemed date of appointment it is directed that the parties shall abide by the decision of the Supreme Court in the Special Leave Petition which is pending before the Supreme Court and in case it is ordered to grand deemed date to such appointees the petitioners shall be entitled to such deemed date and if such deemed date is ordered not to be granted the petitioners shall not be entitled to deemed date of appointment Rule in the rest of the petitions is made absolute to the aforesaid extent There shall be no order as to costsbefore parting with these matters it shall have to be clarified that by interim order dated 14 which is operative upto the date of pronouncement of judgment this Court directed the respondents to promote 43 employees to the post of Executive Engineers The said promotion was as against posts which were specifically allocable to the promotees and it was stated that such promotion would not affect the posts meant for the direct recruits In that view of the matter the promotion which was given to those 43 employees is directed to be regularised in accordance with law as if no stay was granted against their promotion Ad interim relief granted initially shall stand vacated hearing of the group of petitions lasted for over 7 to 10 days and the Ld. Asst. Govt. Pleader Mr. Asst. Govt. Pleader Mr. D. N. Patel has rendered appreciable services to the court He has painstakingly assisted the Court and in view of special service rendered by him in this Court for such a long period he has not been in position to attend to other work In view of such services rendered by him I recommend to the Government to pay him special remuneration of Rs. 5 0 and it is recommended that the respondents shall carry out said directions and shall pay the special remuneration to Mr. D. N. Patel Ld. AGP. (RPV) Orders accrodingly. .