Judgment Nagendra Rai, J. 1. The petitioners have filed the present writ application for a direction to the Convenor (District Judge. Patna) of the Coordination Committee constituted under Rule 11 of the Bihar Civil Courts Staff (Class III and Class IV) Rules, 1992(hereinafter referred to as the Rule) as well as the Chairman of each Zonal Selection Committee who are members of the said selection committee for publication of merit list/panel of successful candidates prepared for appointment to the post of Class III employees in the different judgeships of the State of Bihar and for a further direction to the respondents to fill up the existing as well as the future vacancies from the said panel/list. 2. The High Court of Judicature at Patna has framed the Rules in exercise of power under Sec. 235 of the Constitution of India. Rules 8 to 24 contain a provision of recruitment of Class III staff. Rule 25 provides that the High Court may direct that a different procedure for appointment as provided in Rules 26 to 33 may be followed notwithstanding the aforesaid procedure provided for recruitment. Rules 26 to 33 provide that the appointment has to be made district wise by a committee consisting of District Judge and the seniormost Additional District Judges in the judgeship. 3. In terms of the provisions for recruitment as contained in Rules 8 to 24 an advertisement was issued in the daily newspaper i.e. The Hindustan Times on 3rd of August 1983 inviting applications for appointment/preparation of panel for the post of Clerk, Stenographer and Typist. It was provided therein that the written test shall be conducted at five Zones, namely, Patna, Ranchi, Bhagalpur, Muzaffarpur and Saharsa. The vacancies breakup were also given in the advertisement which were liable to increase or decrease. It was stated therein that there were 1007 vacancies of Clerk, 233 vacancies of Stenographer and 9.1 vacancies of Typist. It was also stated therein that the written test shall be of 90 marks and 10 marks shall be of personality test and interview. The ratio in which the candidates were to be called for interview would not be less than three times the number of vacancies available. It was also stated therein that the written test shall be of 90 marks and 10 marks shall be of personality test and interview. The ratio in which the candidates were to be called for interview would not be less than three times the number of vacancies available. It was further provided that the panel of successful candidates shall be prepared on the basis of the total marks obtained in the written examination and also in the interview and the candidates shall have to pass in written test and interview separately. The aforesaid panel will remain valid for a period of two years from the date of publication of the panel. The existing vacancies and also the future vacancies occurring within the period of two years shall be filled up from the candidates in the said panel in order of merit. A copy of the said advertisement has been annexed as Annexure-1 to the writ application. 4. Petitioners 2 to 5 and other eligible candidates applied in tems of the aforesaid advertisement and thereafter the candidates were asked to appear in the written examination conducted by the Professional Agency in terms of the Rules held on 8.12.96 at five Zonal Centres. The answer-books evaluated outside the State by the Professional Agency. A cut off of mark was fixed and it was decided that candidates four times the number of vacancies be called for interview. Thereafter, the result of written test was published in April. 97 and 3386 candidates were found to be within the Zone of consideration and accordingly they were called for interview which was to be held from 3rd May, 97 to 13th May, 97 at five Zonal Centres. Out of 3386 successful candidates 503 candidates either they did not appear or failed in the interview and thereafter a list was prepared containing the names of only 920 persons who were to be appointed in different judgeships of the State of Bihar. Thereafter the list of finally selected candidates was published in the different Zonal Centres on 3rd October 1997. Thereafter the list of finally selected candidates was published in the different Zonal Centres on 3rd October 1997. It is stated that out of the notified vacancies of Clerk i.e. 1007, 101 vacancies were reserved for Scheduled Tribe but only 14 candidates under the said category became successful and were included in the merit list and 87 vacancies were not filled up and were carried forward and thus 920 candidates were finally selected for appointment after leaving the aforesaid 87 vacancies. It further appears that waiting list of 138 persons has also been prepared to fill up the vacancies due to non-joining out of the aforesaid 920 candidates. 5. The grievance of the petitioner is that in this case after the written test and interview the respondents have not prepared the common panel in order of merit in terms of Rule 21 of the Rules and they have only prepared the list of successful candidates. They should have prepared a panel in terms of the aforesaid Rules which shall be valid for two years from the date of publication of the panel and all the existing vacancies as well as the future vacancies should have been filled up from amongst the candidates in the said panel in order of merit in terms of Rules 22 & 23 of the Rules. It is further stated that the provisions of Rules 22 & 23 were incorporated in the advertisement itself and accordingly it is prayed that a direction may be issued to prepare a panel, if not prepared, and to publish the same to fill up the existing vacancies and the future vacancies in terms of the aforesaid Rules and the advertisement. 6. The stand of the Co-ordination Committee is that number of vacancies which were to be filled up were mentioned in the advertisement and steps were taken only to fill up those vacancies and not for future vacancies. After the written test the successful candidates upto four times of the notified vacancies were called for interview. At no point of time the future vacancies subsequent to the advertisement were taken into consideration and as such the future vacancies cannot be filled up on the basis of the examination conducted in pursuance of the advertisement contained in Annexure-1. It is further stated that two panels were only prepared. At no point of time the future vacancies subsequent to the advertisement were taken into consideration and as such the future vacancies cannot be filled up on the basis of the examination conducted in pursuance of the advertisement contained in Annexure-1. It is further stated that two panels were only prepared. One was of 920 successful candidates who were to be appointed and other was the waiting list consisting of 138 persons in accordance with the direction issued by this Court It is specifically stated that the vacancies till date of advertisement were 1007 which were notified in the advertisement. 7. The stand of the High Court which has been arrayed as respondent No. 5 in the writ application is that the written test and the interview were held in terms of the rules and thereafter the list of selected candidates in order of merit was published on 4th October, 1997 and a copy of which was sent to each of the concerned District Judges and on the basis of the aforesaid list the appointment letters were issued to each of the candidates and thereafter this Court also directed for preparation of waiting list to fill up the vacancies which may accrue on account of the candidates not joining after selection. This Court also decided that no such post shall be filled up against the anticipated vacancies. The decision of this Court was communicated to the Co-ordination Committee, copies of which have been annexed as Annexures A & C series to the counter affidavit. It is further stated that the petitioners have no vested right of appointment merely because they have competed in written test as well as in the interview. No person below the petitioners in the merit list has been appointed. 8. The only question which falls for determination in this case is as to whether the appointment is to be made against the vacancies notified in the advertisement or the existing vacancies and the future vacancies within two years after preparation of the panel should be filled from the said panel list 9. On facts there is no dispute that in the advertisement the notified vacancies of Clerks were 1007. It was provided therein that the said vacancies were liable to increase and decrease. On facts there is no dispute that in the advertisement the notified vacancies of Clerks were 1007. It was provided therein that the said vacancies were liable to increase and decrease. It was further provided that the panel prepared after written test and interview shall remain valid for two years from the date of preparation and all the existing and future vacancies should be filled up within the aforesaid period of two years from amongst the candidates in order of merit. This condition in the advertisement has been incorporated in terms of Rules 22 & 23 of the Rules. 10. The petitioners assert that in terms of the Rules and the advertisement a panel should be prepared and the appointment should be made whereas stand of the Co-ordination Committee as appears from paragraph-7 of the counter affidavit is that no list of successful candidates were published and only two lists one of selected candidates of 920 and other the waiting list consisting of 138 candidates in accordance with the direction of this Court were prepared and published. 11. This Court as stated above has framed rules in exercise of power under Sec. 235 of the Constitution of India. The relevant rules provide that there should be centralised examination and oral interview for selection of candidates for appointment to Class HI posts and the State shall be divided into five Zones namely, Patna, Muzaffarpur, Bhagalpur, Ranchi and Saharsa. The Selection Committee shall be constituted consisting of all the District and Sessions Judges of all the Judgeships of that particular Zone, The Seniormost District Judge of each Zone shall be the Chairman of the respective Zonal Selection Committee. At the level of the State a Co-ordination Committee shall be constituted which shall consist of the Chairman of each of the Zonal Selection Committee; the District Judge, Patna shall be its convenor. Rule 12 provides that the members of the Co-ordination Committee will fix criteria for appointment and the syllabus for holding the written examinations regard being had to the number of vacancies available and likely to be available in near future. Rule 13 provides that all the vacant post shall be advertised by the Coordination Committee at least in two daily news papers having wide circulation in the State of Bihar, one of such newspapers must be in Hindi. Rule 13 provides that all the vacant post shall be advertised by the Coordination Committee at least in two daily news papers having wide circulation in the State of Bihar, one of such newspapers must be in Hindi. Rule 21 provides that the panel of successful candidates shall be prepared on the basis of total marks obtained in written examination as also in the interview. After the selection is over a common panel shall be prepared by the Co-ordination Committee in order of merit for all the judgeship in the State of Bihar. Rules 12, 22 & 23 have to be read together and they cannot be read into isolation. Rule 13 specifically provides that all the vacant posts shall be advertised by the Committee and as such the process of selection has to be confined only to the vacant posts advertised. No doubt Rules 22 & 23 show that the panel shall be valid for 2 years and all the exsisting and the future vacancies occurring within two years after preparation of the panel shall be filled up from the said panel but that cannot be interpreted to mean that the existing and future vacancies occurring after advertisement are also to be filled up from the said panel. If that interpretation is made then that will run counter to the specific provision contained in Rule 13 of the Rules as quoted above. A harmonious construction has to be given to the said provision consistent with the requirement of Rules 14 & 16 of the Constitution of India. A panel prepared with regard to the notified vacancies cannot be allowed to remain in force to fill up the future vacancies for two years depriving of other candidates who became eligible after filing of the applications in terms of the advertisement for being considered for appointment. Thus, in my view, the Rules 22 & 23 has to be read in the light of the provisions contained under Rule 23(sic-13?) and it has to be held that the panel is valid only for filling up of the vacancies notified in the advertisement in terms of Rule 13 of the Rules. 12. Thus, in my view, the Rules 22 & 23 has to be read in the light of the provisions contained under Rule 23(sic-13?) and it has to be held that the panel is valid only for filling up of the vacancies notified in the advertisement in terms of Rule 13 of the Rules. 12. Rule 72 of the Rules contains a residuary clause which runs as follows: Nothing in these Rules shall be deemed to affect the power of the High Court to make such order from time to time, as it may deem fit in regard to all matters incidental or ancillary to these Rules not specifically provided for herein or in regard to matters as have not been sufficiently provided for. According to the said rule in two eventualities this Court can issue a direction; firstly with regard to the matters which are incidental or ancillary to the rules not specifically provided and secondly with regard to the matters not having been sufficiently provided for. 13. In this case the rules are inconsistent in the sense that Rule 13 provides that all the vacant post shall be notified whereas Rules 22 & 23 provide that all the existing and future vacancies within two years from the date of preparation of the panel shall be filled up from the said panel. 14. There is no question of notifying the future vacancies for the simple reason that it cannot be ascertained at the time of advertisement, the future vacancies likely to arise at the time of preparation of the panel and for preparation of which no time limit is fixed. In case of delay in preparation of panel as happened in this case the future vacancies of many years have to be filled up. No specific provision has been made in the rules to meet such eventuality and to make the rules clear and consistent with requirement of Articles 14 & 16 of the Constitution of India. In my view to meet such situation the High Court in exercise of the said power can issue directions from time to time. 15. In this case the Co-ordination Committee sought a direction of this Court and this Court has issued directions as contained in Annexures A to C series. In my view, the said directions will be treated to have been issued in exercise of power under Rule 72 of the rules. 15. In this case the Co-ordination Committee sought a direction of this Court and this Court has issued directions as contained in Annexures A to C series. In my view, the said directions will be treated to have been issued in exercise of power under Rule 72 of the rules. According to the said directions only the vacancies notified in the advertisement are to be filled up and the waiting list was ordered to be prepared to fill up those vacancies which remained vacant due to non-joining of the selected candidates. It was specifically stated that no anticipated vacancy is to be filled up from the waiting list. It further appears from the record that the Co-ordination Committee from the very beginning proceeded to fill up only those vacancies which were notified in the advertisement and no steps were taken to prepare the list to fill up the future vacancy. Interview letters were issued to the candidates after the written test at the ratio of four times the number of vacancies notified in the advertisement. This Court, as stated above, has also directed to fill up only those vacancies as notified in the advertisement. Thus, in my view, in view of the provision contained in Rule 72 of the Rules and the directions issued by this Court, the Co-ordination Committee was justified in filling up only those vacancies which were notified in the advertisement. 16. Even if it is accepted that according to the rules and the terms of the advertisement the existing vacancies upto the time of preparation of panel and future vacancy during the validity of the life of the panel have to be filled up from the said panel prepared in terms of the rules, the provision of the said rules providing for filling up of the future vacancy after the advertisement is unconstitutional, and this Court cannot issue direction to the respondents to do illegal and unconstitutional Act. 17. In the case of Ashok Kumar Ors. V/s. Chairman, Banking Service Recruitment Board Ors. -- the Apex Court has held as follows: Article 14 read with Article 16(1) of the Constitution enshrines fundamental right to every citizen to claim consideration for appointment to a post under the State. Therefore, vacant posts arising or expected should be notified inviting applications from all eligible candidates to be considered for their selection in accordance with their merit. -- the Apex Court has held as follows: Article 14 read with Article 16(1) of the Constitution enshrines fundamental right to every citizen to claim consideration for appointment to a post under the State. Therefore, vacant posts arising or expected should be notified inviting applications from all eligible candidates to be considered for their selection in accordance with their merit. The recruitment of the candidates in excess of the notified vacancies is a denial and deprivation of the constitutional right under Article 14 read with Article 16(1) of the Constitution. The procedure adopted, therefore, in appointing the persons kept in the waiting list by the respective Boards, though the vacancies had arisen subsequently without being notified for recruitment, is unconstitutional. Thus, this Court cannot issue a direction for filling up the vacancies in excess of the vacancy notified in terms of the aforesaid rules as urged on behalf of the petitioners. 18. It is well settled that the selection process by way of requisition and advertisement can be started for clear vacancy and also for expected vacancy but not for future vacancy. It would be improper to make appointments over and above the vacancy advertised. Only in exceptional cases the appointing authority can take a policy decision to make appointment with regard to the post not advertised. Before advertisement the authority has to take into consideration the existing vacancy as well as the expected vacancy. 19. In the case of Prem Singh Ors. V/s. Haryana State Electricity Board Ors. the Court in paragraph-25 has held that the selection process by way of requisition and advertisement can be started for clear vacancies and also for anticipated vacancies but not for future vacancies. If the requisition and advertisement are for a certain number of posts only the State cannot make more appointments than the number of posts advertised, even though it might have prepared a select list of more candidates. The State can deviate from the advertisement and make appointments on posts falling vacant, thereafter in exceptional circumstances only or in an emergent situation and that too by taking a policy decision in that behalf. The same view has been reiterated recently by the Apex Court in the case of Surinder Singh Ors. V/s. State of Punjab Ors. The State can deviate from the advertisement and make appointments on posts falling vacant, thereafter in exceptional circumstances only or in an emergent situation and that too by taking a policy decision in that behalf. The same view has been reiterated recently by the Apex Court in the case of Surinder Singh Ors. V/s. State of Punjab Ors. 1998 S.C. 18 wherein in paragraph-15 it has been held as follows: It is in no uncertain words that this Court has held that it would be improper exercise of power to make appointments over and above those advertised. It is only in rare and exceptional circumstances and in emergent situation that this rule can be deviated from. It should be clearly spelled out as to under what policy such a decision has been taken. Exercise of such power has to be tested on the touchstone of reasonableness. Before any advertisement is issued, it would, therefore, be incumbent upon the authorities to take into account the existing vacancies and anticipated vacancies. It is not as a matter of course that the authority can fill up more posts than advertised. Thus, it is clear that once the vacancies are advertised the appointment has to be confined to the aforesaid vacancies and only in exceptional cases the appointment beyond the advertisement is to be made and before advertisement it is incumbent upon the authority to take into account the existing and anticipated vacancies. 20 In view of the settled law on the point by the Apex Court it has to be held that the appointment has to be confined only to the vacancies notified in the advertisement which should be issued after taking into consideration the existing as well as the anticipated vacancies. 21. In this case as the vacancies have been notified the appointment has to be confined to those vacancies and not beyond that. There is another reason not to issue a direction to fill up the future vacancies from the examination conducted in pursuance of the advertisement issued in the year, 1993. 21. In this case as the vacancies have been notified the appointment has to be confined to those vacancies and not beyond that. There is another reason not to issue a direction to fill up the future vacancies from the examination conducted in pursuance of the advertisement issued in the year, 1993. The last date for filling up of the application was 30 days from the date of the advertisement i.e August 3,1993, and the persons who became eligible thereafter have been deprived of participating in the examination and if the submission of the petitioners is to be accepted then the vacancies occurring after 1993 to 1999 will be filled from the said panel which will amount to denial of opportunity of employment to those candidates who became eligible after the, last date prescribed for filling up of the application in terms of the advertisement and any direction to fill up the aforesaid vacancies from the candidates appeared in pursuance of the advertisement of the year, 1993 will prejudicially affect them. 22. In the case of State of Bihar Ors. V/s. The Secretariat Assistant Successful Examinees Union 1986 Ors. 1994 S.C. 736 : 1994 (1) PUR (SC) 41, it appears that an advertisement was issued in the year 1985 for appointment to the post of Assistant in the Secretariat for filling up of the vacancies of 1985-86. The examination was held in 1987. The result was published in 1990 and the candidates were appointed in 1990. A panel was prepared to fill the future vacancies by the State occurring after 31st December, 1988. The candidates of the said panel were not appointed and then they represented the matter to the State Government and their representation was rejected and on 8.8.91 the State Government took steps for fresh advertisement for appointment of the Secretariat Assistant. The said decision of the State Government was challenged in this High Court and this Court directed the competent authority i.e. the Board to recommend the names of petitioners in accordance with their seniority in the merit list to fill up the vacancies as available on the date of publication of the result (July. The said decision of the State Government was challenged in this High Court and this Court directed the competent authority i.e. the Board to recommend the names of petitioners in accordance with their seniority in the merit list to fill up the vacancies as available on the date of publication of the result (July. 1990) The Apex Court quashed the order and held that since no examination has been held since 1987 the persons who became eligible to compete for appointments were denied the opportunity to take the examination and the direction of the High Court would prejudicially affect them for no fault of theirs. However, taking into consideration the callousness on the part of the State in delaying the matter ordered for filling of the vacancies upto 31st December, 1988 and set aside the order of the High Court by which a direction was given to fill up the vacancies upto 1991. 23. Thus, after consideration of the matters from the different angles I am of the view that no direction can be issued to publish the panel of all the successful candidates after interview and written test and to make appointment out of the said panel to Class III posts which are in excess of the vacancies notified. In other words, the future vacancies occurring after in excess of the notified vacancies cannot be filled up by the successful candidates of the examination in question. 24. A waiting list of 138 persons was prepared as appears from the affidavit filed on behalf of the convenor of the Co-ordination Committee. It further appears that a large number of candidates have not joined. A waiting list prepared by the competent authority is a list of eligible and qualified candidates who in order of merit are placed below the last selected candidate It does not furnish the source of recruitment. It is operative only for the contigency in the sense that if selected candidates do not join then the persons from the waiting list may be appointed in the vacancy so caused or if there is some extreme exigency the Government may as a matter of policy decision pick up persons in order of merit list (See 1994 Suppl. (2) S.C.C 591, Gujrat State Dy Executive Engineers Association V/s. State of Gujrat Ors.). 25. (2) S.C.C 591, Gujrat State Dy Executive Engineers Association V/s. State of Gujrat Ors.). 25. Thus, the posts which are vacant due to non-joining of the candidates or even became vacant after resignation of the candidates who joined, have to be filled up from the candidates of the waiting list. 26. It appears from the record that this Court has already issued a direction to the convenor to fill up the vacancy occurring due to non- joining of the selected candidates and the convenor has already taken steps to get information about the selected candidates who have not joined After the information is received the vacant post due to non-joining of the selected candidates or due to resignation of the selected candidates would be filled up from amongst the candidates of the waiting list. No vacancy in excess of the advertised vacancies except in those circumstances should be filled up from waiting list. 27. With the aforesaid observations this writ application stands dismissed.