Judgment R. M. Prasad, J. 1. -the petitioners in the writ application pray for issuing direction to the respondents to determine the seniority of superintending engineers including that of the petitoners in Bihar Engineering Service class I on the basis of the date of appointment/promotion to the post of superintending Engineer and not to grant regular promotion to the post of Chief engineer on the basis of seniority list of Executive Engineers in Bihar engineering Service Class I and/or on the basis of seniority dated 11.12.92 and further to consider their cases for regular promotion to the post of Chief engineer and thereby to recommend their cases to the Bihar Public Service commission for such consideration taking into account that the names of the persons allegedly junior to them, who have been promoted to the post of superintending Engineer after promotion of these petitioners, have already been recommended for consideration of their cases for promotion to the post of Chief Engineer. 2. However, in view of the law laid down by the Apex Court in the case of union of India and others etc. vs. Virpal singh Chauhan etc. [ Civil Appeal No.9272 of 95 and analogous cases decided on 10th October, 1995] regarding restoration of seniority of general candidates over the candidates belonging to the reserved category, promoted earlier out of turn, Mr. Mahto, learned senior Counsel appearing for the petitioners confined the prayer for issuing direction to the respondents to consider the cases of the petitioners also along with other general category candidates for promotion to the post of chief Engineers in the Road Construction Department, as according to him, the petitioners come within the consideration zone as per the provisions in the Govt. circular dated 27th November, 1976 contained in annexure-23 read with the Govt. circular dated 11th July, 1981 contained in annexure-Y to the application for intervenor. 3. In short, the relevant facts are that the petitioners, incharge Chief Engineers in the Road Construction department, are the members of the bihar Engineering Service Class I in p. W. D. (Road Construction), State of bihar. The petitioners belong to the scheduled caste category. However, they do not claim consideration of their cases for promotion as against the reserved category as undisputedly there is no vacancy for the reserved category. 4. The petitioners belong to the scheduled caste category. However, they do not claim consideration of their cases for promotion as against the reserved category as undisputedly there is no vacancy for the reserved category. 4. According to the petitioners, p. W. D. Code provides for the Rules for recruitment and promotion and other conditions of service in the Public works Department, now known as road Construction and Water Resources Department. The conditions of service including seniority and promotion of the petitioners are governed by the bihar Engineering Service Class I rules, 1939, under which there are different posts like Executive Engineers, superintending Engineers and Chief engineers and the respondent State has fixed the strength of individual post/cadre. According to the said Rule the promotion to the post of Superin tending Engineer and/or Chief. engineer are to be made by way of selection and seniority alone confers no claim. The respondent-State by issuing the Government instructions has laid down 8 years as Kalawadhi for promotion to the post of Executive Engineer, 6 years for promotion to the post of superintending Engineer and 4 years for promotion to the post of Chief Engineer. 5. The petitioners claim to be eligible for consideration of their cases for promotion to the post of Chief engineers, to which post petitioner No.1 was made incharge by notification dated 6.2.91 (annexure 9 ). 6. However, in the meantime, the respondent-State came out with a roster policy for reservation of different posts including the post of Chief Engineer, the validity of which was challenged by general candidates in c. W. J. C. No.1151/91 and two other analogous cases (C. W. J. C. No.7009/91 and C. W. J. C. No.9874/89 ). It is alleged by the petitioners that" there were some allegations against some of the aforementioned general category candidates, who had filed the aforesaid writ applications, whereas, on the other hand, the case of petitioner No.1 was duly recommended by the Departmental Promotion Committee and the memorandum was placed before the cabinet on 4.2.92 for final approval. While the matter regarding regular promotion of the petitioners to the post of Chief Engineer was pending, the respondent State on 11.12.92 came out with a seniority list of Executive engineers in Bihar Engineering Service class I, in which their names were also included at SI. Nos.97 and 101. While the matter regarding regular promotion of the petitioners to the post of Chief Engineer was pending, the respondent State on 11.12.92 came out with a seniority list of Executive engineers in Bihar Engineering Service class I, in which their names were also included at SI. Nos.97 and 101. It appears that during the tendency of the writ-petition some of the general category candidates including Sri gopalji Prasad, who had also filed one of the aforementioned writ petitioners were promoted as incharge Chief Engineers. In the meantime, petitioner no.2 also,was made incharge Chief engineer vide notification dated 3.7.93 (annexure 14 ). 7. The aforementioned writ applications were finally heard and disposed of by judgment and order dated 6.4.95, which is reported in 1995 (2)P. L. J. R.91. In the said case a Division bench of this court held that the decision of the State Government dated 21.3.91 to keep the roster alive even after representations of Scheduled Castes/scheduled tribes are complete, cannot sustain and therefore, any promotion beyond the permissible limit of 24% in the cadre shall be treated as illegal and without jurisdiction and quashed the said Government decision. 8. It appears that when the decision in the said judgment was not given effect to, some persons moved this Court in C. W. J. C. No.5408 of 95 seeking direction to the respondent state to give full effect of the said judgment, and to fill up the vacant post of chief Engineer applying general principles and not on the basis of roster. The said writ petition was finally heard and disposed of with a direction to the respondents authorities to see to it that follow up orders pursuant to the said judgment is passed latest by 20th january, 1996. Further it was made clear that as the private respondents are working on the said posts on ad-hoc basis as a temporary arrangement the same cannot be allowed to be continued till indefinite period. As such, the Court directed that the same will also come to an end automatically if no final decision is taken by 20th January, 1996. In the meantime, two of the petitioners of the said cases superannuated from service. As such, the Court directed that the same will also come to an end automatically if no final decision is taken by 20th January, 1996. In the meantime, two of the petitioners of the said cases superannuated from service. Thereafter, the cases of others were recommended to the Bihar Public Service Commission for consideration for promotion to the post of Chief Engineer, whereas the names of the petitioners were not sent to the Commission, with which the petitioners are now aggrieved. 9. An application for intervenor has been filed on behalf of Syed hasamui Haque and Vinoy Kumar verma, who belong to general category and claimed to be senior to the petitioners. According to the intervenors the working arrangement of the petitioners as incharge Chief Engineer was by application of roster which resulted in over representation of the quota of Scheduled Castes/scheduled tribes candidates beyond 24% which was subject-matter of challenge in the aforementined analogous cases, in which they were impleaded as respondents. The intervenors who are also Superintending Engineers claims to have entered in the service in the year 1961 and 1967, respectively, whereas according to them the petitioners entered in service much later than them. Accordingly, the position of the intervenors in the gradation list cf 1987 are at Sl. Nos.245 and 294 and that of the petitioners at Sl. Nos.581 and 586, respectively. The intervenors claimed to have been promoted to the Bihar Engineering service Class I in the year 1975 much earlier to both the petitioners and thus, the position of intervenor No.1 in the aforementioned seniority list dated 11.12.92 is at SI. No.86 and that of the petitioners are at Sl. Nos.97 and 101, respectively. It is, however, admitted that the petitioners were promoted as. Superintending Engineers on the basis of roster Rule of reservation before the intervenors, but according to the law laid down by the Apex Court in the case of Union of India and others vs. Virpal Singh Chauhan etc. the petitioners cannot claim seniority over the intervenors after they have also been promoted as Superintending Engineers, as they will regain their seniority over such earlier promoted reserved category candidates. 10. Mr. the petitioners cannot claim seniority over the intervenors after they have also been promoted as Superintending Engineers, as they will regain their seniority over such earlier promoted reserved category candidates. 10. Mr. Mahto, learned senior counsel appearing for the petitioners submitted that as per the fule relating to promotion to the post of Superintending engineer/chief Engineer, as provided in the P. W. D. Code the seniority alone confers no claim and the promotions have to be made by selection. Thus, according to him, the respondents are duty bound to consider the case of the petitioners, who come within the consideration zone for regular promotion to the post of Chief engineer in the general quota according to the principle laid down by the apex Court in the case of r. K. Sabrawal and others vs. State of punjab and others, reported in (1995) 2 s. C. C.745. But the respondent State having not forwarded the names of the petitioners to the Bihar Public Service commission for recommendation has acted unconstitutionally, illegally and arbitrarily as also in violation of rules of natural justice. 11. A counter-affidavit has been filed on behalf of the Commissioner-cum-Secretary, Road Construction department (respondent No.2 ). In the said counter affidavit it is stated that there are altogether 16 cadres posts of chief Engineer in Bihar Engineering service Class I in the Road Construction department. Out of these posts 9 officers/engineers are already working as regular Chief Engineers and 7 such posts are lying vacant which are to be filled on regular/substantive basis. Besides this, there are number of ex-cadre posts available in the said category, the number of which varies according to the requirement of various departments. For the present, the number of such posts is three. In paragraph 6 of the said counter-affidavit it is stated that against the seven clear vacancies recommendation of Departmental promotion Committee has already been made in respect of three officers and as such further action with respect to rest four posts need to be taken by the department. In paragraph 7 it is stated that the aforesaid statement has been made on the premise that the officers who are working as incharge Chief engineers are vacant, which call for action filling up on regular basis. In paragraph 7 it is stated that the aforesaid statement has been made on the premise that the officers who are working as incharge Chief engineers are vacant, which call for action filling up on regular basis. In paragraph 8 of the counter-affidavit it is stated that as per practice in vogue in the Department on the basis of circular issued by the Personnel and Administrative Reforms department, contained in letter No.7463 dated 22.4.72 three times the number of vacancies are considered for giving promotion. 12. On the basis of the said statements learned S. C.10 appearing for the state submitted that there is no substance in the claim of the petitioners for forwarding their names to the Commission for consideration of their cases for promotion to the post of Chief Engineer along with the three officers, whose names have been recommended by the Departmental Promotion Committee to the Commission, as their position in seniority list is much below at Sl. Nos.97 and 101 and they do not come wkhin the consideration zone as per the above mentioned circular. 13. Mr. Kanth, learned counsel appearing for the intervenors submitted that the petitioners do not come within the consideration zone as they did not come in the grade of Superintending engineers by virtue of merit after competing with the candidates of the general category. He submitted that as per the law laid down by the Apex court their position in the seniority list is much below the persons whose names have been recommended by the departmental Promotion Committee to the Commission for consideration for promotion to the pest of Chief Engineer and thus, there is no substance in their claim. 14. A supplementary affidavit has been filed on behalf of the petitioners. In the said supplementary affidavit the recommendations made by the departmental Promotion Committee on 11.12.95 have been brought on record as Annexure 22 series. 14. A supplementary affidavit has been filed on behalf of the petitioners. In the said supplementary affidavit the recommendations made by the departmental Promotion Committee on 11.12.95 have been brought on record as Annexure 22 series. In the said affidavit it is submitted that the seniority list dated 11.12.90 of the Executive engineers (Annexure 13) included the names of persons, who have already superannuated from the service of Bihar Engineering Service Class I. As per the Government circular issued by the Personnel and Administrative reforms Department on 27th November, 1976 (Annexure 23) with respect to the procedure of the Departmental promotion Committee for the purpose of filling up higher post by way of promotions the zone of consideration will be three times the posts which are to be filled up by the promotion. It is contended that the names of persons, who have already superannuated from higher Engineering Service Class I as on 1.12.94 appeared above the petitioners and after deletion of their names the position of the petitioners on 1.12.95 would "come at Sl. Nos.19 and 22 and thus, they will come within the zone of consideration. 15. According to the petitioners, in the month of December, 1976 some more persons superannuated from the service from the post of Chief Engineers and thereby some more posts of chief Engineer fell vacant. Similarly, expected vacancies, which will be available as on 1.1.96, 1.2.96 and 1.4.96 will further increase the number of vacant posts of Chief Engineers and consequently a court showing the position of the petitioners as per the seniority list as on 1.1.96, 1.2.96 and 1.4.96 have been annexed as annexure 24 series. Thus, according to the petitioners from the facts stated above, it is manifest that the petitioners were within the zone of consideration even as per the gradation list of Superintending engineers issued on 11.12.92 (Annexure 13) and were eligible for promotion on the post of Chief Engineer on regular basis, but their names were intentionally not forwarded to the Bihar Public service Commission. 16. 16. According to the decision in the case of R. K. Sabrawal vs. State of bihar (supra) the candidate belonging to the general category are not entitled to be considered for reserved posts but the reserved category candidate can compete for the non-reserved post and in the event of their appointment to the said posts their number cannot be added and taken into consideration for working out the percentage of reservation. However, in the said decision the apex Court further held that the reservation provided in the Government instructions are to be operated in accordance with the roster to be maintained in each department, which is implemented in the form of "running account" from year to year to make sure that the scheduled castes/scheduled tribes and backward classes get their percentage of reserved post. According 10 the Supreme Court, the "running account" is. to operate only till the quota provided in the instructions is reached and not thereafter and once the prescribed percentage of post is filled up, the numerical test of adequacy is satisfied and thereafter the roster does not survive. 17. The Supreme Court further held that the only way to assure equality of opportunity to the backward classes and the general category is to permit the roster to operate till the time the respective appointees/promotees occupy the posts meant for them in the roster and that the operation of the roster and the "running account" must come to an end thereafter. 18. While considering the expression posts and Vacancies often used in the executive instructions providing for reservation the Supreme Court held that the percentage of reservation has to be worked out in relation to the number of posts which form the cadre strength and the concept of vacancy has co-relevance in operating the percentage of reservation. It was observed by their Lordships that the fact that considerable number of the backward classes have been appointed/promoted against general seats in the State government to review the question of continuing reset vations for the said class, but so long as the instructions/rules providing certain percentage of reservation for the Backward Classes are operative, the same has to be followed, despite number of incumbents belonging to such classes holding general category posts. It was also observed that in the event of nonavailability of reserved candidate at the roster point it would be open to the state Government to carry forward the point in a just and fair manner. 19. From reading of the law laid down by the Apex Court in the aforementioned case, there cannot be any doubt that the cases of the persons belonging to reserved category have to be considered against the posts meant for general category candidates along with the candidates of the said category if they fulfil the required criteria and come within the consideration zone as per the rules/decisions/executive instructions of the State Government. At the same time, it is also well settled that the existence of vacancies gives no legal right to a candidate to be selected for appointment. The Apex Court in the case of State of Haryuia vs. Subhash Chandra, reported in A. I. R.1973 s. C.2216 held as follows: "the examination is for the purpose of showing that a particular candidate is eligible for consideration. The selection for appointment comes later. It is open them to the government to decide how many appointment shall be made. The mere fact that a candidate named by him in the list will not entitle him to a mandamus that he be appointed. There is no constrain that the government shall make an appointment of a subordinate judge because there are vacancies or because a list of candidate has been prepared and is in existence. " The Supreme Court rejected the claim of the petitioner for issuing mandamus to fill in the vacancies by relying upon its decision in the case of shivendra Bahadur vs. The Governing body of Nalanda College [a. I. R.1962 s. C.1210], wherein it was pointed out that in order that a mandamus may issue to compel an authority to do something, it must be shown that the statute imposes a legal duty on that authority and the aggrieved party has a legal right under the Statute to enforce its performance. The petitioners have not been able to show that the Statute impose a legal duty oh the State government and/or the petitioners had a legal,right under the Statute to enforce its performance by issuing mandamus to fill up all the vacancies. The petitioners have not been able to show that the Statute impose a legal duty oh the State government and/or the petitioners had a legal,right under the Statute to enforce its performance by issuing mandamus to fill up all the vacancies. 20 In the present case as per the counter-affidavit filed on behalf of the state, the recommendation has only been made in respect of three posts out of seven clear vacancies, which included the posts, on which officers are working as incharge Chief Engineers. According to the recommendation contained in road Construction Departments letter no.7242, dated 11th December, 1975 (annexure 22) the recommendation has been made for the two vacancies available till December, 1995 and thus, the names of six Superintending Engineers, i. e. three times the aforesaid vacancies have been made. As SI. Nos.77,80,81,83 of the aforementioned seniority list have superannuated and sl. No.78 had not been promoted as superintending Engineer for some reasons, the names of officers at Slnos.76,79,82,84 and 86 only were recommended. As the petitioners position in the seniority list is at Sl. Nos.97 and 101 as already stated above their names were not recommended. The aforementioned position was further clarified in the Road Construction Departments letter No.7244, dated 11.12.95, contained in annexure 22/1 by giving the details. 21. Learned Counsel for the petitioners have not been able to show that the names of persons below them in the seniority list (annexure 13) have been recommended by the Departmental promotion Committee to the Bihar public Service Commission for promotion. 22. Thus, I do not find any merit in the claim of the petitioners for issuing direction to the respondent State to consider their cases also along with other general category candidates for promotion to the post of Chief Engineer, inasmuch as, though under rule 24, the posts of Chief Engineers have to be filled by selection and seniority alone confers no claim, but as per the government decision, the names of only three times the number of posts which the Government decides to fill have to be recommended by the departmental Promotion Committee to the Bihar Public Service Commission subject to fulfilment of other criteria, such as, Kalawadi and satisfactory service records etc. 23. Accordingly, I do not find any merit in the writ application and the same is dismissed. 23. Accordingly, I do not find any merit in the writ application and the same is dismissed. However, when the state Government decides to fill in the remaining vacant post of Chief Engineer and the cases of the petitioners come within the consideration zone, then their cases shall also" be considered by the Departmental Promotion committee and if they fulfil the required criteria, then their names shall be recommended to the Bihar Public service Commission for consideration of their cases for promotion to the post of Chief Engineer along with the general category candidates and/or the reserved posts if any falling vacant as per the law laid down by the Apex court in the case of R. K. Sabrawal (supra ). However, in the facts and circumstances there shall be no order as to costs. Petition Dismissed.