JUDGMENT S.J. Mukhopadhaya, J. - The petitioner has challenged the notification dated 4th July, 1994 whereby the respondent nos.6 to 13 have been appointed as Lecturers in Economics in the Magadh University. Further prayer has been made for direction on the respondents to consider the case of the petitioner for such appointment. 2. The case lies in the narrow compass. The respondent Bihar State Universities (Constituent Colleges) Service Commission came out with one advertisement no. 74-120/U.S.C./90 in the newspapers dated 3rd December, 1990 for appointment against different posts of Lecturers. Advertisement no.109/U.S.C./90 related to appointment to the post of Lecturers in Economics wherein seven posts were advertised including reserved posts. In the note portion, it was mentioned that the number of vacancies may vary as per the request of the University with further stipulation that in case suitable candidates are not available against reserved categories, general candidates may also be considered treating the post un-reserved. The eligibility criteria was shown in the said advertisement wherein it was stipulated that M.Phil and Ph.D. degree in the relevant subject though not prescribed as mandatory, but will be considered as an additional qualification. 3. The petitioner as well as the contesting respondents and ors. applied in pursuance of aforesaid Advertisement no.109/U.S.C./90 for the post of Lecturers in Economics. They were called for interview and after due selection through a Selection Board, the contesting respondents have been appointed, but the petitioner has not been provided with such appointment. 4. According to the counsel for the petitioner, the interview and selection was conducted by the Board in July-August, 1992. It is stated that the Commission was re-constituted in the year 1994 whereinafter the panel has been finalised and on such recommendation the appointments of the respondent nos.6 to 13 have been made. Thus, the contention of the counsel for the petitioner is that the preparation of the panel itself was illegal and so no appointment could have been made out of the same very panel. 5. The counsel for the petitioner also submitted that the petitioner has been provided with lesser mark by the Selection Committee because of malafide on the part of the respondents. According to him, the petitioner was member of a political party (Janata Dal), but just before selection, he left the said political party and joined another political party (B.J.P). 5. The counsel for the petitioner also submitted that the petitioner has been provided with lesser mark by the Selection Committee because of malafide on the part of the respondents. According to him, the petitioner was member of a political party (Janata Dal), but just before selection, he left the said political party and joined another political party (B.J.P). It was because of such change of political carerer of the petitioner, with a malafide motive, the petitioner, has been provided with lesser mark and was deprived of appointment. 6. The counsel for the petitioner placed reliance on statement made in the writ petition at paragraphs 12 and 13 of the writ petition to show as to how the evaluation of marks was made by the Selection Committee and the marks which the petitioner should have been provided. This was so placed to show that the petitioner was provided with lesser marks, at the time of evaluation, by the Selection Committee. At paragraph-12 to the writ petition, the petitioner has shown the slab of marks fixed by the Selection Committee for awarding marks which is as follows :- Matriculation/I.C.S.E. or equivalent : 1st Divn. 2nd Divn. 3rd Divn. Marks Flat Points Marks Flat points Marks Flat points Assigned Assigned Assigned Slab/Scales 60-65% 5 _ _ _ _ 66-70% 6 _ _ _ _ 71 % & above 7 _ _ _ _ Intermediate-I.Sc./I.A. 1st Division Marks Flat Points Assigned Slab Scales 60-65% 7 66-70% 8 71% & above 9 B.A. (Hons.) 1st Division Marks. Flat Points Assigned Slab/Scales 60-65% 12 66-70 % 14 71 % 16 & above M.A.(Economics) Marks Flat points Assigned Slab/Seales 60-65 % 18 66-70 % 20 71% & 22 above M.Phil., Ph.D, + Candidates having both M. Phil. and Ph.d. or Ph.D. degree Marks Flat Points Slab/Scales Assigned 60-65% 5 Candidates having both M Phil and Ph.D. or Ph. D. degree alone were to be assigned' a maximum of 5 marks while those having only M.Phil. degree were to be given 2 marks. Publication : A Candidate could be awarded a maximum of 5 points for paper's written and published by him: not more than one mark for each publication. D. degree alone were to be assigned' a maximum of 5 marks while those having only M.Phil. degree were to be given 2 marks. Publication : A Candidate could be awarded a maximum of 5 points for paper's written and published by him: not more than one mark for each publication. Interview : The Total marks assigned for Interview was 35." At paragraph-18, the petitioner has given the slab of marks, to which he is entitled, as mentioned hereunder: - Total Marks obtained by the petitioner Marks in Points percentage secured obtained 1. I.C.S.E./Matric 60% 60% 5 2. P.U./Pre- 804/ 55.4% 5 Engg. Pubjab 1450 University 3. B.A. Hons. 214/ 71.3% 16 Eco. Pubjab 300 University Chandigarh 4. M. A. Eco. 490/ 61.2% 18 Magadh 800 University, Bodh Gaya Proof of 2 publication of 2 papers Interview 24 Total: 70 7. Counsel for the petitioner lastly submitted that atleast the respondents should have considered the case of the petitioner against the reserved posts, which were not filled up, treating the post as un-reserved in terms with the provision laid down under the Act. 8. During the course of hearing, on earlier occasion, I asked the respondent Commission to produce the evaluation sheet and marks as were provided by the Selection Board. I also directed them to produce the panel which was stated to have been prepared by the re-constituted Commission. The counsel for the respondent Commission was also directed to produce the application format of the petitioner as well as respondent Tapan Kumar Shandilya to verify as to whether petitioner and said respondent Shandilya claimed for any mark for Ph.D. and other papers or not. The counsel for the respondent Commission produced them in sealed cover which I have gone through. 9. Before dealing the other points as raised by the counsel for the petitioner, I am discussing the allegation of the petitioner relating to malafide and the allegation relating to preparation of panel. In the writ petition, no material has been brought on the record by the petitioner to substantiate his claim that because of malafide on the part of anyone or other individual the petitioner was provided with lesser mark. No person has been impleaded as party by name against whom such malafide has been alleged. In the writ petition, no material has been brought on the record by the petitioner to substantiate his claim that because of malafide on the part of anyone or other individual the petitioner was provided with lesser mark. No person has been impleaded as party by name against whom such malafide has been alleged. In 11& absence of such material and individual, I hold that the petitioner has failed to make out a case of malafide in the matter of marking/evaluation by the Selection Committee. So far as preparation of panel is concerned, after going through the original records including the evaluation chart prepared and signed by the members of the Selection Committee, marking given by the experts of the Selection Committee and the marking given by the Selection Committee during interview, I find that they were so marked and signed while the interview and selection was made in the month of July-August, 1992. I further find that the panel which has been prepared and recommendation which has been made by the re-constituted Commission is completely in consonance with the marking given by the Selection Committee and the experts. Thus, the submission made on behalf of the petitioner• that the preparation of the panel itself was illegal, is hereby rejected. 10. So far as mark of the petitioner and the respondents belonging to general category are concerned, from the evaluation chart/mark given by the Selection Committee-expert body, I find that the following marks have been provided to the contesting respondents and the petitioner. Name Marks provided for academic career and interview. Tapan Kumar Shandilya 56 + 23 = 79 (Respondent) Smt. Ranjana Shrivastava 54 + 25 = 79 (Respondent) Smt. Mira Mridubhasini 48 + 21= 69 (Respondent) Smt. Nandini Mehta 45 + 22 = 67 (Respondent) Shri Rajiv Pratap Singh 43 + 24 = 67 (Petitioner) 11. From the aforesaid marking I find that the respondents have been rightly appointed to the post of Lecturer on the basis of their position in the merit list. 12. One of the grievance of the petitioner is that he was not properly marked by the Selection Committee. It was alleged that the petitioner submitted thesis/paper for which he should have been provided with two additional marks. 12. One of the grievance of the petitioner is that he was not properly marked by the Selection Committee. It was alleged that the petitioner submitted thesis/paper for which he should have been provided with two additional marks. On comparison of the application format of the petitioner and one of the respondent Tapan Kumar Shandilya, I find that while Shri Tapan Kumar Shandilya gave details relating to his "papers" on the basis of which he has been provided more marks by the Selection Committee, no such detail or claim was made by the petitioner in his application form. This apart, there is nothing on the record to suggest that the petitioner claimed for additional marks for his papers/thesis and brought the aforesaid fact to the notice of the Selection Committee. 13. With regard to slab marking at paragraph-18 to the writ petition, the petitioner has claimed 16 marks for B.A. (Hons.) Economics Examination showing therein that he has obtained 214 out of 300 marks. However, I find that the Selection Committee has provided him with 14 marks for such B.A.(Hons.) Examination. When I tried to find out as to why the petitioner has been provided with 14 marks in the B.A. (Hons.) Examination, from application form submitted by the petitioner (Annexure-B to the counter affidavit), I find that the petitioner claimed 1st Class therein and has shown his total mark as 340 out of 500, which is the total marks provided to the petitioner in all the papers, apart from the Honours papers. In paragraph-18 to the writ petition, the petitioner has shown only the total marks of the Honours paper. Even, if it is presumed that the petitioner's marking should have been given on the basis of his total marks obtained in the Honours papers in the B.A.Hons. Examination, the respondent or the Selection Committee cannot be blamed for the same as the petitioner himself claimed marking on the basis of total marks obtained in all papers Le. 340/500, on the basis of which the slab marking comes to 14 and not 16. 14. The Supreme Court in Durga Devi & am. Vs. State of H.P. & ors. (1997 Vol. 4 Supreme Court Cases 575) held that the judicial re-assessment of comparative merit and suitabilities of candidates is impermissible. 340/500, on the basis of which the slab marking comes to 14 and not 16. 14. The Supreme Court in Durga Devi & am. Vs. State of H.P. & ors. (1997 Vol. 4 Supreme Court Cases 575) held that the judicial re-assessment of comparative merit and suitabilities of candidates is impermissible. In the aforesaid circumstances, it is also not possible for me to sit in appeal over the assessment made by the Selection Committee and to give a finding that the petitioner is more moritorious than the respondents. Thus the aforesaid contention mace by the counsel for the petitioner is also rejected. 15. Now, I deal with the matter of dereservation of post. Admittedly when the advertisement was issued only 7 posts of Lecturers in Economics were advertised. In the advertisement, it was made clear that number of vacancies may vary as per the request of the University. It appears from the panel prepared and recommendation made by the Commission, as produced by them, that the consideration of cases out of selected candidates were made against total 11 posts, of which bifurcations have been shown as noted hereunder: General 4 posts S.C. 2 posts S.T. 1 post Extremely B.C. 2 posts B.C. 2 posts (one post with Civilization in Statistic Psychonetics) Total 11 posts 16. However names of only four general category, one Scheduled Caste Category, two Extremely Backward Category and one Backward Category candidates have been recommended. One post of Scheduled Caste Category, one post of Scheduled Tribe Category and one post of B.C. Category have been shown to be kept vacant and names not recommended because of non-availability of Scheduled Caste, Scheduled Tribe and B.C. Category. This data, I have taken from the recommendation sheet of the Commission signed by members on 1st June, 1994, original of which was produced by the counsel for the Commission. 17. In the advertisement, the matters relating to reservation of posts were shown and following stipulations were made by the respondents : N.B. : (i) In case suitable candidates are not available against reserved categories, general candidates may also be considered treating the post unreserved." The statutes relating to appointment of teachers of Universities (notified vide memo no. 5318/G.S.(I) dated 25.11.1980) also stipulate reservation. Similar stipulation like the advertisement has been laid down therein, which reads as follows: "vi. 5318/G.S.(I) dated 25.11.1980) also stipulate reservation. Similar stipulation like the advertisement has been laid down therein, which reads as follows: "vi. In making appointments, it shall be ensured that persons belonging to reserved categories are appointed to the extent of the quota of reservation prescribed for the respective categories and in accordance with the given roster. If a sufficient number of candidates suitable in all respects for appointment to the reserved quota of vacancies are not available from the communities for whom reservations have been made in a particular year, the unfilled vacancies should be treated as unreserved and filled by the best available candidates. The number for reserved vacancies thus treated as unreserved will be treated as carried forward vacancies and added as additional quota to the number that would be reserved in the following year in the normal course; and to the extent to which approved candidates are not available in that year against this additional quota, a corresponding addition should be made to the number of reserved vacancies in the second following year." 18. In the present case, the respondent University has made requisition for 11 posts of Lecturers in Economics; but only contesting respondents 6 to 13 were recommended and appointed. In absence of eligible candidates, one post of Scheduled Caste, one post of Scheduled Tribe and another post of Backward Category were not filled up. According to this Court, the respondents are duty bound to treat those posts as un-reserved in terms with the stipulation laid down in the advertisement and the provision of statutes aforesaid. Further, petitioner having obtained same mark (67) i.e. mark obtained by respondent Nandani Mehta, the respondent Commission should have also recommended the name of the petitioner for appointment against such de-reserved posts. 19. For the reasons stated above, I direct the respondents to treat the aforesaid three posts, including the post of Specialization in Statistics/Econo-metrics, as un-reserved and forward the name of the petitioner and other eligible persons, on the basis of merit for appointment against the aforesaid posts of Lecturers in Economics. The Commission will forward such names within fifteen days from the date of receipt/production of a copy of this judgment. The respondent University will thereafter provide order of appointment in their favour within a period of fifteen days from the date of receipt of such recommendation. 20. The Commission will forward such names within fifteen days from the date of receipt/production of a copy of this judgment. The respondent University will thereafter provide order of appointment in their favour within a period of fifteen days from the date of receipt of such recommendation. 20. The writ petition is allowed with the aforesaid observation and direction. However, on the facts and circumstances of the case, there shall be no order as to costs.