JUDGMENT- P.S. PATANKAR, J.---All these three writ petitions can be disposed of by this common judgment as the facts involved are same and also the points. 2.In these petitions under Article 226 of the Constitution of India three questions arise for our consideration :---(i) Whether Rule 17 of the Goa Civil Service (Judicial Branch) Rules, 1992 (hereafter referred to as the Rules of 1992) provides for two separate modes of recruitment or whether direct recruitment under Rule 17(b) is to be resorted to only after exhausting the avenue of promotion contemplated under Rule 17(a); (ii) Whether Rules 17(a) and 17(b) provide for quota i.e. 67% by promotion and 33% by direct the recruitment; and (iii) What is the meaning of 'post' contained in Rule 17(b)? 3.For the sake of convenience we shall give the averments made in one petition being Writ Petition No. 4 of 1996 and the affidavits filed on behalf of respondents. 4.The petitioner was appointed as Civil Judge, Junior Division under Order dated 18-10-1991. The Goa, Daman and Diu Civil Service (Judicial Branch) Rules of 1985 came to be superseded by the 1992 Rules. In the cadre of Civil Judge, S.D. there were 9 posts prior to 1993. Seven posts were already filed and there were two vacancies. The Government created two more posts of Civil Judge, S.D. in 1993. Thereafter in 1994 three posts of Civil Judge, S.D. fell vacant. Thus after the Rules of 1992 seven posts were available for filling. But in February, 1995 two were filled by promotion. The petitioner is praying that the respondents be prohibited from appointing more than two Judges in Grade II (Senior Branch) in the Goa Civil Service (Judicial Branch) out of the present five vacant posts. Affidavit-in-reply has been filed on behalf of respondent No. 3 (i.e. High Court by N. Dabolkar Addl. Registrar (Legal) dated 6th February, 1996. He has pointed out that the sanctioned strength of Civil Judges, S.D. was 10 as against working strength of seven. Thus there were three vacancies. The High Court had asked the Government to create four more posts of Senior Branch i.e. Civil Judge, Senior Division. Therefore, the strength would be 10 + 4. Considering the quota laid down in Rule 17, it was felt that five posts can be filled by nomination and nine posts by promotion. Thus there were three vacancies. The High Court had asked the Government to create four more posts of Senior Branch i.e. Civil Judge, Senior Division. Therefore, the strength would be 10 + 4. Considering the quota laid down in Rule 17, it was felt that five posts can be filled by nomination and nine posts by promotion. It was thereafter decided to select five candidates from the Bar for direct appointment as Civil Judge, S.D. He has also referred that the Government created only two posts of Civil Judge, S.D. by Order dated 30th April, 1993. He has pointed out that while computing the number of posts to be filled in by nomination, the total strength of Grade II, Senior Branch is required to be considered. According to him it should be taken as 14 and therefore five candidates can be appointed by direct recruitment in view of Rule 17(b) proviso. He has mentioned that even considering the present strength, there can be 4 candidates appointed directly under the said Rule. There is an affidavit filed on behalf of the State of Goa by Mr. P.V. Kadnekar, Joint Secretary, Department of Law and Judiciary dated 13th February, 1996. He has pointed out that the strength of the cadre of Civil Judge, Senior Division was 9 and not 10. Now it is admitted by all that the strength was 9. He has pointed out that 7 posts were filled in prior to the Rules of 1992 came into force. After the Rules of 1992 came into force three vacancies arose because of the promotions. By order dated 18th April, 1993 two additional posts were created of Grade II, Senior Branch. Therefore, there were seven vacant posts of Grade II, Senior Branch. He has made reference to the letter dated 7th September, 1993 addressed to the Registrar, High Court (Appellate Side) pointing out that Rules of 1992 can be given only prospective effect and only one post of Civil Judge, S.D. can be filled in by nomination. He has also pointed out that letter dated 12th December, 1995 was received by him pointing out that Select List of 5 candidates was recommended by the High Court. He has also pointed out that letter dated 12th December, 1995 was received by him pointing out that Select List of 5 candidates was recommended by the High Court. In February 1995, two posts of Civil Judge, S.D. were filled by promotion from amongst Civil Judge, J.D. 5.The strength of judicial service in the State of Goa was : (i) Grade II, Junior - 13; (ii) Grade II (Senior) - 9; and (iii) Grade I - 5. We are here concerned with Grade II, Senior Branch i.e. Civil Judge, S.D. By order dated 30th April, 1993, two more posts were created by the Government of Grade II, Senior Branch. Thus presently the strength of Grade II, Senior Branch is 11. In fact, the High Court had proposed for four additional posts of Grade II, Senior Branch, but the Government only created two more posts by order dated 30th April, 1993. 6.There were "Goa, Daman and Diu Civil Service (Judicial Branch) Rules, 1985" framed under Articles 233 and 234 of the Constitution of India read with section 5 of the High Court of Bombay (Extension of Jurisdiction to Goa, Daman and Diu) Act, 1981. Those Rules were superseded by the 1992 Rules. Admittedly, neither the Rules of 1985 nor the Rules governing the services prior thereto provide for direct recruitment to the post of Grade II - Senior Branch. For the first time it was introduced by the Rules of 1992. The Notification dated 10-2-1993 came to be published in Government Gazette dated 12-2-1993 and they came into force at once in view of Rule 1(2). Under those Rules, Constitution and classification of the Judicial Service is as follows : (i) Grade I consists of District Judges and Addl. District Judges; (ii) Grade II-A, Senior Branch - Civil Judge, S.D. (B) Junior Branch (C.J., J.D.). Rule 17 of the Rules of 1992 is as follows :--- "17.Appointment to posts in Grade II Senior Branch.---(a) Appointment to post in Grade II Senior Branch shall be made by the High Court by promotion from amongst Officers of Grade II Junior Branch who have a standing of at least four years; Provided that the High Court may, for the reasons to be recorded in writing, relax the condition relating to minimum years of service. (b)Appointment by nomination shall be made by the Governor on the recommendation of the High Court from members of the Bar who have practised as Advocates for not less than five years in the High Court or Courts subordinate thereto; Provided that as far as possible not more than 30% posts in Grade II Senior Branch shall be filled in by nomination." 7.The learned Counsel appearing for the petitioners, first submitted that it is necessary to read Rule 17 as a whole and if it is so read it would mean that it is authority first to exhaust the possibility of right candidates being available for promotion under Rule 17(a) and then only one can go to Rule 17(b) i.e. for direct recruitment. In other words, first there should be a report from the High Court that eligible candidates having service of four years from Grade II, Junior Branch are not available. Then High Court should relax the conditions of minimum service in view of proviso to Rule 17(a) and even then eligible candidates are not available then mode under Rule 17(b) can be resorted to. As this has not happened, there can be no direct recruitment. It is not possible to accept this. In our opinion, Rule 17(a) and 17(b) provide for two distinct and separate modes - one by promotion and the other by direct recruitment. It is not necessary that the mode of promotion under Rule 17(a) should be first exhausted. The Division Bench of this Court in Writ Petition No. 334 of 1993 dated 20th June, 1995, (Goa Judicial Officers' Association v. State)1, has also observed that Rule 17 provides for two methods or modes of recruitment to Grade II, Senior Branch. It so provides for two modes or methods so that the best and the most suitable talent from both avenues become available. It gives added power to High Court in the form of proviso to Rule 17(a) to relax service conditions if right type of candidates for promotion having four years service for direct recruitment are not available. It is with a view to see that posts do not remain vacant and judicial work and consequently litigating public does not suffer. Rule 17(a) does not say that Rule 17(b) shall be resorted on failing to get candidates under Rule 17(a). It does not put any embargo on the enabling power. It is with a view to see that posts do not remain vacant and judicial work and consequently litigating public does not suffer. Rule 17(a) does not say that Rule 17(b) shall be resorted on failing to get candidates under Rule 17(a). It does not put any embargo on the enabling power. Therefore, we hold that Rule 17 provides for 2 separate modes of recruitment. 8.The next question is whether Rule 17 provides for quota. In our opinion it does not provide for fixed quota of 67% by promotion and 33% by direct recruitment. The words used 'as far as possible not more than 33%' indicate that the intention was to keep it flexible or elastic. Taking into consideration exigencies of situation which may exist 33% or may be less than 33%. A similar phraseology came for consideration before the Apex Court in (1990)92 Bombay Law Reporter page 360, (The Direct Recruit Class II Engineering Officers' Association v. The State of Maharashtra)2, the Apex Court was considering the Maharashtra (Senior and Preparation and Revision of Seniority) List for specified period, Rules 1982. Rule 1(b) provides for promotion from amongst the members of the lower cadres. There was a proviso which read as follows : "Provided that the ratio of appointment by nomination and promotion shall, as far as practicable be 75 : 25." The Apex Court observed : "It will be noticed that the ratio of 3:1 was fixed for the purpose of appointment and not for the strength of the service as was suggested on behalf of the appellants. The other important feature was that the proviso fixing the ratio, far from being imperative, permitted the State Government to exercise its discretion according to the demand of the exigencies by using the expression "as far as practicable"." Similarly the Apex Court in (N.K. Chauhan v. State of Gujarat)3, A.I.R. 1977 S.C. page 251, was considering the expression "as far as practicable" which was used in the Bombay Government Resolution dated 30th July, 1959. The Apex Court observed as follows : "What does 'as far as practicable' or like expression mean, in simple anglo-saxon? Practicable, feasible, possible, performable, are more or less interchangeable. The Apex Court observed as follows : "What does 'as far as practicable' or like expression mean, in simple anglo-saxon? Practicable, feasible, possible, performable, are more or less interchangeable. A skingraph of the 1959 Resolution reveals that the revival of the direct recruitment method was motivated by 'the interest of administration'- an overriding object which must cast the benefit of doubt if two meanings with equal persuasiveness contend. Secondly, going by the text, 50% of the substantive vacancies occurring in the cadre should be filled in by election in accordance with appended rules. 'As far as practicable' finds a place in the Resolution and the Rule. In the context, what does it qualify? As far as possible 50%? That is to say, if 50% is not readily forthcoming, then less? Within what period should the impracticability be felt? What is the content of 'impracticability' in the given administrative setting? Contrarywise, can you no contend that impracticability is not a licence to deviate, a discretion to disobey or a liberty with the ratio? Administrative tone is too important to be neglected but if sufficient numbers to fill the direct recruits' quota are not readily available, substantive vacancies may be left intact to be filled up when direct recruits are available. Since the exigencies of administration cannot wait, expediency has a limited role through the use of the words 'as far as practicable'. Thereby Government is authorised to make ad hoc appointments by promotion or by creation of ex cadre posts to be filled up by promotees, to be absorbed in the 50% portion falling to the promotional category in later years. In short, 'as far as practicable' means, not interfering with the ratio which fulfils the interest of administration, but flexible provision clothing Government with powers to meet special situations where the normal process of the Government Resolution cannot flow smooth." The Learned Counsel for the petitioners placed reliance on two sentences in the Division Bench Judgment of this Court mentioned above i.e. Writ Petition No. 334 of 1993 (cited supra). In para 5 and para 34, there is a reference made regarding the quota of 67% and 33%. However, it is not possible to infer from this that the Division Bench has suggested any inflexible quota for promotion and for direct recruitment. First such a question was not at all agitated before the Division Bench. In para 5 and para 34, there is a reference made regarding the quota of 67% and 33%. However, it is not possible to infer from this that the Division Bench has suggested any inflexible quota for promotion and for direct recruitment. First such a question was not at all agitated before the Division Bench. Secondly, the observations made were general and broadly expressed. It cannot be called as ratio or even obiter dictum of the said Judgement. 9.In our opinion, Rule 17 does not provide for rigid quota of 67% by promotion and 33% by nomination. If proper and suitable candidates by promotion are not available, then it may exceed 33% if suitable candidates by nomination are available or vice versa the case. This would also subserve the object of promotional chances of proper and suitable candidates are not hampered. Judicial administration is important, because Judge perform vital and difficult function of deciding case only and in public under the rule of law. They do not decide according to the spin of the coin. That requires proper and suitable candidates to shoulder the responsibility. Hence flexibility. However, the rule means that ordinarily 67% should be promotee candidates and 33% by nomination. 10.Then the question is what is the scope of proviso to Rule 17(b) or meaning of the word 'post' occurring therein. This is to be appreciated against the following background. The advertisement for direct recruitment was issued on 6-6-1994. It made no mention about vacancies or posts to be filled in. On that date admittedly, none of the petitioners were eligible for promotion as they have not completed four years of service in Grade II Junior Branch. Interviews were held on 20th November, 1995. On that date, they were eligible. By letter dated 7-9-1993 the State Government has asked the High Court to fill in only one post of Grade II, Senior Division by nomination. However, High Court recommended filling of five posts by nomination after interviews were held. Respondents No. 4 and 5 in Writ Petition No. 6 of 1996 were issued letters of appointment, not the postings. The selection letter by High Court to the State dated 12th December, 1995 shows that respondent No. 4 stands at Serial No. 1 and respondent No. 5 at serial No. 3. Respondents No. 4 and 5 in Writ Petition No. 6 of 1996 were issued letters of appointment, not the postings. The selection letter by High Court to the State dated 12th December, 1995 shows that respondent No. 4 stands at Serial No. 1 and respondent No. 5 at serial No. 3. 11.At the outset we may point out that large number of authorities were cited at the Bar on both the sides regarding how to interpret Rules and whether the Court should entertain these petitions as the petitioners were not eligible for consideration for promotion on the date on which the advertisement was issued or what is to happen if some vacancies arise prior to enforcement of the Rules and some arise thereafter. The learned Counsel, in cases of some judgments, tried to rely upon one sentence or some observations. But we do not find them of any relevance or assistance in solving the point. Hence we are only referring to those which offer some assistance. 12.The learned Counsel for the petitioners submitted that the words' post in the cadre' would mean only vacancies occurring on the date of advertisement. For that they relied upon observations of the Division Bench in the case of The Goa Judicial Officers' Association v. The State of Goa and others, in Writ Petition No. 334 of 1993 (cited supra). In para 34 it was observed that the Rule reserving 33% of the vacancies of Grade II, Civil Judges, Junior Division to be recruited from the Bar is not arbitrary and unreasonable. They further submitted that if interpretation is given that 33% posts could mean from the entire cadre, then it would be giving retrospective effect to these Rules. These Rules do not speak so expressly or by implication. Therefore this cannot be done. 13.It is further submitted that these Rules are only prospective in view of Rule 1(2). It is also submitted that if 33% from the cadre strength is to be taken then it would bar the chances of promotee candidates for many more years to come and this is not the intendment of the Rules. They pointed out that the Government of Goa in its letter dated 7-9-1993 addressed to the High Court made it clear that the Rules are not retrospective and so suggested to fill in only one vacancy of Grade II, Senior Division by nomination. They pointed out that the Government of Goa in its letter dated 7-9-1993 addressed to the High Court made it clear that the Rules are not retrospective and so suggested to fill in only one vacancy of Grade II, Senior Division by nomination. 14.The learned Advocate General supported this and further submitted that these Rules are framed under Article 234 and cannot be retrospective in effect. He pointed out that position under Article 234 is the same as under Article 148(5) and relied upon (The Accountant General and another v. S. Doraiswamy and others)4, A.I.R. 1981 S.C. 783, in support of his submission. 15.As against this, learned Counsel for the High Court and respondents Nos. 4 and 5 submitted that the words used in Rule 17(b) proviso are clear and they mean that it is necessary to have quota of 33% for direct recruitment from the entire cadre strength. It is submitted that this is also supported by Rule 10. They submitted that letter of Government of Goa dated 7-9-1993 is not final and binding. It is submitted that giving interpretation as suggested by them does not mean giving any retrospective effect and no such element of retrospectivity is involved. The earlier Rules were superseded and hence only the posts under the present Rules are to be considered and therefore it is necessary to count all the posts in the cadre. This does not involve retrospective operation. It is also pointed out that no provision is made or saving clause is inserted in the Rules of 1992 to protect the rights created under the Rules of 1985. It is submitted that for filling posts in Grade II Senior Branch under these Rules, change is effected and the promotional posts are brought down from 100% to 67%. By this no rights are taken away. Reliance is placed in (Chandra Gupta I.F.S. v. The Secretary, Government of India, Ministry of Environment and Forests and others)5, reported in A.I.R. 1995 S.C. 44 for submitting that loss of mere chances of promotion does not mean loss of any right or any right as such is created in the petitioners. By this no rights are taken away. Reliance is placed in (Chandra Gupta I.F.S. v. The Secretary, Government of India, Ministry of Environment and Forests and others)5, reported in A.I.R. 1995 S.C. 44 for submitting that loss of mere chances of promotion does not mean loss of any right or any right as such is created in the petitioners. 16.We make it clear that we refuse to consider whether these Rules are framed under proviso to Article 309 or under Article 234 of the Constitution of India in view of the decision of the Division Bench reported in Writ Petition No. 334 of 1993 (cited supra). The Division Bench has in terms held that these Rules are framed under Article 234 of the Constitution of India. This Judgment is challenged in the Apex Court and it is pending. 17.In our opinion, the fact that Government of Goa has recommended by letter dated 7-9-1993 to the High Court to fill in only one vacancy by nomination is not of any significance as the Government has accepted the recommendation of the selection made of five candidates by the High Court vide letter dated 12th December, 1995 and in fact it has issued two appointment letters i.e. to respondents No. 4 and 5. 18.In our opinion, the learned Counsel for the petitioners are right in submitting that there is nothing in the Rules expressly or by implication to make them effective retrospectively. The Supreme Court in (P. Mahendran and others v/s State of Karnataka and others)6, A.I.R. 1990 S.C. 405. observed: "It is well settled the rule of construction that every statute or statutory rule is prospective unless it is expressly or by necessary implication made to have retrospective effect unless there are words in the statute or in the Rules showing the intention to effect existing rights the rule must be held to be prospective. If the rule is expressed in language which is clearly capable of either interpretation it ought to be construed as prospective only. In the absence of any express provision, or necessary intendment, the rule cannot be given retrospective effect except, in matter of procedure." Further Rule 1(2) says that the Rules of 1992 shall come into force at once. This suggests that they cannot operate retrospectively. Similarly Advocate General is also right in submitting that these Rules which are framed under Article 234 cannot be retrospective. This suggests that they cannot operate retrospectively. Similarly Advocate General is also right in submitting that these Rules which are framed under Article 234 cannot be retrospective. In The Accountant General and another v. S. Doraiswamy and others, A.I.R. 1981 S.C. 783, the Apex Court was considering the Rules which were framed under Article 148(5) of the Constitution of India. It came to be observed :--- "The next question is whether Clause (5) of Article 148 permits the enactment of Rules having retrospective operation. It is settled law that unless a statute conferring the power to make rules provides for the making of rules with retrospective operation, the rules made pursuant to that power can have prospective operation only. An exception, however, is the proviso to Article 309. In (B.S. Vadera v. Union of India)7, 1969(3) S.C.R. 575 this Court held that the Rules framed under the proviso to Article 309 of the Constitution could have retrospective operation. The conclusion followed from the circumstances the power conferred under the proviso to Article 309 was intended to fill a hiatus, that is to say, until Parliament or a State Legislature enacted a Law on the subject matter of Article 309. The rules framed under the proviso to Article 309 were transient in character and were to do duty only until legislation was enacted. As interim substitutes for such legislation it was clearly intended that the rules should have the same range of operation as an Act of Parliament or of the State Legislature. The intent was reinforced by the declaration in the proviso to Article 309 that "any rules so made shall have effect subject to the provisions of any such Act." Those features are absent in Clause (5) of Article 148. There is nothing in the language of that clause to indicate that the rules framed therein were intended to serve until Parliamentary legislation was enacted. All that the clause says is that the rules framed would be subject to the provisions of the Constitution and of any law made by Parliament. We are satisfied that Clause (5) of Article 148, confers power in the President to frame rules operating prospectively only." Similar is the position under Article 234 and peculiar feature, pointed out by the Apex Court as absent in Article 148(5), is also absent in Article 234. They cannot be given retrospective effect. They operate prospectively. We are satisfied that Clause (5) of Article 148, confers power in the President to frame rules operating prospectively only." Similar is the position under Article 234 and peculiar feature, pointed out by the Apex Court as absent in Article 148(5), is also absent in Article 234. They cannot be given retrospective effect. They operate prospectively. Further, if we accept the case of the High Court and respondents No. 4 and 5 that 33% is to be found out from the entire cadre strength of Grade II Senior Division, then it would mean that we are giving retrospective effect to the Rules which would affect adversely service conditions of many promote candidates. Surely this is not intended. 19.Rule 10 of the 1992 Rules deals with initial appointment of person in the service. It says that the holder of any post in the service, as on the date of these rules come into force. shall continue to hold such post and shall be subject to the terms and conditions prescribed for completion of probation according to the Rules of 1985, but in all other respects, the said incumbent is to be governed by these Rules. The Rules of 1992 are introduced superseding the earlier and now govern the services. But they cannot affect or alter what has taken place earlier. When there was no provision in earlier Rules by appointment by nomination to Grade II Senior Division and such a provision came to be included for the first time by these rules, we have to find out posts vacant on the date of the introduction of these Rules and to make these Rules applicable in that respect. It was not necessary that there should have been any saving clause in Rules of 1992 to protect the rights created under the Rules of 1985. When the Rules were prospective, they cannot affect retrospectively. Here in all respects they are enforceable prospectively. No doubt the Apex Court in (R.K. Sabharwal and others v. State of Punjab and others)8, A.I.R. 1995 S.C. 1371, observed: "The expressions "posts" and "vacancies" often used in the executive instructions providing for reservations, are rather problematical. The word "post" means an appointment, job, office or employment. A position to which a person is appointed. "Vacancy" means an unoccupied post or office. The word "post" means an appointment, job, office or employment. A position to which a person is appointed. "Vacancy" means an unoccupied post or office. The plain meaning of the two expressions make it clear that there must be a 'post' in existence to enable the 'vacancy' to occur. The cadre-strength is always measured by the number of posts comprising the cadre. Right to be considered for appointment can only be claimed in respect of a post in a cadre. As a consequence the percentage of reservation has to be worked out in relation to the number of posts which from the cadre-strength. The concept of 'vacancy' has no relevance in operating the percentage of reservation." It is clear that the Apex Court was concerned with promotions under the Punjab Service of Engineers Class I P.W.D. (I.B.) Rules and it dealt with the question relating how reservations for Scheduled Caste and Backward Classes are to be fixed under Rule 9 thereof or roster operated. In our case the proviso to Rule 17(b) uses the following words : "not more than 33% posts in Grade II Senior Branch shall be filled in." This has, therefore, application in case of those posts becoming available for filling after these Rules come into force. It is not possible to read only "Posts in Grade II Senior Division", to mean all the posts in the cadre. This is to be read alongwith the words "shall be filled in". This shows that as direct recruitment to Grade II Senior Division came to be introduced for the first time by 1992 Rules, it will have to be co-related to available posts or vacancies at the time when the Rules became applicable and thereafter. This requires to find out what were the available posts for filling up when the Rules of 1992 came into force and thereafter became available. 20.In view of the above interpretation, the undisputed position would be that on the date when these Rules came into force, there were five posts available for filling. Two more were created thereafter. Thus seven posts became available for filling. We cannot take into consideration those posts which were proposed by the High Court for creation, but not created by the Government. Therefore, we have to apply Rule 17(b) and find out quota against seven posts and it cannot be applied taking into consideration the entire cadre strength. Two more were created thereafter. Thus seven posts became available for filling. We cannot take into consideration those posts which were proposed by the High Court for creation, but not created by the Government. Therefore, we have to apply Rule 17(b) and find out quota against seven posts and it cannot be applied taking into consideration the entire cadre strength. In our opinion, the phrase 'posts' used in proviso to Rule 17(b) means "posts arising in the cadre of Grade II Senior Division after the Rules of 1992 came into force". 21.In the Affidavit filed on behalf of the High Court there is nothing to show that there were any circumstances which required it to fill all the five posts (presently available) by nomination and depart from quota ordinarily to be observed under Rule 17(b). It does not say that eligible candidates were not available for promotion. Though on the date when advertisement dated 6-6-1994 was issued, the petitioners were not eligible for promotion. But the advertisement made no reference to the number of posts and on the date when the interviews were held on 22-11-1995, all the petitioners were eligible for promotion to the said posts. The Learned Counsel for the respondents relied upon A.I.R. 1974 S.C. 259, ratio of which came to be reiterated by the Apex Court in Chandra Gupta, I.F.S. v. The Secretary, Government of India, Ministry of Environment and Forest and others, A.I.R. 1995 S.C. 44. It observed : "It is well settled in law that no employee has a right or vested right to chances of promotion as held by this Court in (Ramchandra Shankar Deodhar v. State of Maharashtra)9, 1974(1) S.C.C. 317 at 329 "..... It is now well settled by the decision of this Court in (State of Mysore v. G.B. Purohit)10, 1967 Serv.L.R. 753, that though a right to be considered for promotion is a condition of service, mere chances of promotion are not. A rule which merely affects chances of promotion cannot be regarded as varying a condition of service. ...." But the position here is quite different in view of the above facts. When the interviews were held, it did not remain in the realm of chances of promotion, but right to be considered for promotion. As it was not the case of the High Court that they were not found eligible, they could have been considered for promotion. ...." But the position here is quite different in view of the above facts. When the interviews were held, it did not remain in the realm of chances of promotion, but right to be considered for promotion. As it was not the case of the High Court that they were not found eligible, they could have been considered for promotion. Further it is not possible to accept the case of High Court that ratio is to be found on the basis of 13 posts, as two posts were not created by the Government. Similarly, it is not possible to find out the said quota on the basis of the entire cadre strength i.e. 11. Therefore, the High Court was not right and neither five nor four posts can be filled in by nomination. As pointed out above, the Division Bench in Writ Petition No. 334 of 1993 dated 20-6-1995 has usely made reference in para 34 to "vacancies". In fact, phrase is used to express 'posts available for filling in'. In view of the above and considering the fact that seven posts become available for filling after the Rules of 1992 come into force, there can be no more than 2 candidates appointed by nomination at present. 22.For the aforesaid reasons, we direct as follows :--- Respondent No. 1 not to make appointment of more than 2 candidates of Grade II Senior Branch by nomination at present. The appointments shall be made strictly in accordance with the merit reflected in the Select List prepared by Selection Committee. Rule made absolute in the aforesaid terms. Petition allowed. *****