Honble GUPTA, J.–Pursuant to the advertisement no. 1/96 dt. 14.2.96 issued by the Panchayat Samiti and Zila Parishad, Bikaner (respondent no.2), the petitioners had applied for the post of Teacher Gr.III. The number of the vacancies advertised was 220, but was increased to 330 afterwards. It has been averred in the writ petition that the positions of the petitioners in merit list were between 9 to 203 and they were called for the interviews on the basis of their merit but the appointments have not been given to them. (2). The petitioners case is that the appointments have been withheld on account of the order dated 17.5.97 issued by the Rural Development and Panchayati Raj Department containing directions for keeping in view the Government Circular dt. 9.12.96 while filling up the vacancies reserved for the candidates belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes. It has been averred that the vacancies are required to be determined as on the 1st of Jan. and the circular dt. 9.12.96 could not be made applicable in respect of the vacancies advertised on 14.2.96, and as such, there could not be carrying forward of the vacancies reserved for the O.B.Cs. It has been stated that if appointments were given following the circular dt. 9.12.96 the petitioners will be deprived of the appointment as the vacancies which occurred prior to 1996 for the O.B.Cs. will be carried forward. It has been prayed that the Court declares that the principle of carry forward of the vacancies for the O.B.Cs. will be effective only after 9.12.96. It has been further prayed that if the appointments are not made before 30.6.97 the court directs that the list will not lapse by the efflux of time. (3). In the return filed by the respondents no.1 and 2, it has been averred that the writ petition is premature as selections in pursuance of the advertisement no. 1/96 have still not been completed and no select list has been prepared and published. It has been further averred that a provisional merit list was prepared on the basis of the information supplied by the candidates themselves and the merit shown in the schedule annexed to the writ petition in respect of various petitioners, is not correct. It has been stated that the State Government vide order dt. It has been further averred that a provisional merit list was prepared on the basis of the information supplied by the candidates themselves and the merit shown in the schedule annexed to the writ petition in respect of various petitioners, is not correct. It has been stated that the State Government vide order dt. 26.5.95 had clarified the position regarding the backlog of the Scheduled Castes, Scheduled Tribes and O.B.Cs. in view of the judgment of the Apex Court in the R.K. Sabarwals case, and therefore, the vacancies could be filled up only on the basis of the circular dt. 26.5.95 Anx. R.1. It has been emphasized that the directions of carrying forward the vacancies had come into existence from 10.2.95 by the pronouncement of the judgment of the Apex Court in the case of `R.K. Sabarwals and the Government had also issued instructions on 26.5.95. (4). In their reply respondents no. 3 to 9, who are members of the O.B.Cs. have stated that in view of the judgment of the R.K. Sabarwals case the appointing authorities are obliged to have appointment to the members of the O.B.C.. on the posts reserved for them. (5). In the rejoinder filed by the petitioner, it has been averred that in the meeting of the District Establishment Committee held on 2.4.97 a decision was taken to fill up 330 posts and out of them 14 posts were reserved for the O.B.Cs. In that meeting, it was also decided that the backlog of 47 posts of the O.B.C. should be filled up and thus the petitioners have reasonable apprehension that the respondents will resort to give appointments to the O.B.C. candidates on the carried forward vacancies. (6). Mr. Mridul, learned Sr. Advocate contended that under Rule 8 of the Rajasthan Panchayat Samitis and Zila Parishad Service Rules, 1959 (for short the Rules of 1959) the vacancies were required to be determined as on 1st Jan, 1996 and therefore the circular issued after 1st of Jan. providing for carrying forward of the vacancies for the O.B.C. category candidates is not applicable, in the appointments to be made in pursuance of advertisement no. 1/96. He pointed out that there was a clear order of the State Government dt. 26.2.94 stating that there shall be no carry forward of the vacancies in respect of the O.B.C. candidates. providing for carrying forward of the vacancies for the O.B.C. category candidates is not applicable, in the appointments to be made in pursuance of advertisement no. 1/96. He pointed out that there was a clear order of the State Government dt. 26.2.94 stating that there shall be no carry forward of the vacancies in respect of the O.B.C. candidates. He submitted that the State Government could not make reservation for O.B.Cs. by executive order and the circular relied on by the respondent Anx. R-1 is contrary to Rule 7 of the Rules of 1959. To support his contentions he cited the cases of State of M.P. vs. Th. Bharat Singh (1), Smt. Indira Gandhi vs. Shri Raj Narain (2) and South Central Rly. Employees Society vs. Registrar (3). His further contention was that in the Sabarwals case, the Supreme Court has not held that the ruling will apply notwithstanding the rules framed on the subject. He canvassed that no rule can be made to take effect from the back date except the rules framed under proviso to Article 309 of the Constitution of India and therefore the directions providing carry forward of the O.B.C. candidates from the back date are unconstitutional. In support of this contention, case of Acctt. General vs. S. Dorai Swamy (4) was cited. Pointing out that the respondents have not denied that they will follow the circular of 1995, he urged that the writ petition cannot be called premature as the appointments are proposed to the given following the principle of carrying forward of the vacancies in respect of O.B.Cs. (7). As against this, Mr. Bishnoi and Mr. Singh contended that no select list has yet been prepared and therefore the petitioners apprehension is based on presumptions and the petition is premature. They urged that the State Government is well within its rights to provide for reservation for the O.B.Cs. even without amending the rules. It was argued that circular Anx. R/1 was issued in 1995 and therefore it was applicable to the vacancies advertised in Feb. 1996. (8). I have carefully considered the above arguments. No select list has been published as yet and therefore it has to be accepted that the writ petititon is premature. In any case, since the respondents have come out with the case that they will follow the circular order dt. 1996. (8). I have carefully considered the above arguments. No select list has been published as yet and therefore it has to be accepted that the writ petititon is premature. In any case, since the respondents have come out with the case that they will follow the circular order dt. 26.5.95 in making selections, it is considered proper to dispose of the writ petition on merits. (9). It has been provided in Rule 8 of the Rules of 1959 that the expected number of vacancies shall be determined twice in every year i.e. 1st of Jan. and 1st of July and the vacancies shall be filled in by direct recruitment. There cannot be any dispute in this legal position that the law standing on the date of the notification will apply to the appointment of the vacancies notified. There is catena of rulings of the Apex Court on the point that it is the date on which the process of selection was started, the rules in force are applicable to the selection. One such case of P. Mahendran vs. State of Karnataka (5) can be cited. (10). Under Rule 7 of the Rules of 1959 there is provision for making reservation of vacancies for the members of the S.C. & S.T. There is no provision for making reservation of the vacancies for the O.B.Cs. However, the State Government by the executive order dt. 28.9.93 Anx. 4 provided for the reservation of the O.B.Cs. also. It was provided that there shall be reservation of 21 per cent for the O.B.Cs. in the direct recruitment. By the circular order dt. 26.2.94 it was again made clear that there shall be reservation for the O.B.Cs. and in direct recruitment if was 21%. By this order a 100 point roster was also prescribed and it was directed that it would come into effect immediately. It was ordered that the vacancies filled on or after 28.9.93 should be shown in the new roster prescribed in Annexure-A. The old 100 points roster was directed to be closed from 28.9.93. It was provided that the reservation which had to be carried forward to the previous roster would be carried forward in the new roster. However, it was made clear that there shall be no carrying forward of the vacancies in respect of Other Backward Classes. The effect of the two orders Anx. It was provided that the reservation which had to be carried forward to the previous roster would be carried forward in the new roster. However, it was made clear that there shall be no carrying forward of the vacancies in respect of Other Backward Classes. The effect of the two orders Anx. 4 and 3 was that reservation was provided for the O.B.Cs. in direct recruitment to the extent to 21 per cent but at the same time it was made clear that the vacancies remained unfilled would not be carried forward in respect of O.B.Cs. (11). The first question is whether reservation could be provided for the O.B.Cs. without making any amendment in the rules. The question stands answered in the judgment of the Apex Court rendered in the case of Indira Sawhney vs. Union of India (6). It has been held in that case that an executive order making a provision under Article 16(4) is enforceable the moment it is made and issued. It has been held in clear terms that until a law is made or rules are issued with respect to reservation in respect of the backward classes it is for the Government to provide for reservation by an executive order. That being so, there is no merit in the contention of Mr. Mridul that without making amendment in Rule 7 of the Rules of 1959 there could not be reservation for the O.B.C. candidates in direct recruitment. In view of the decision rendered by the Apex Court in Indira Sawneys case (9 Judges Bench), the rulings relied on by Mr. Mridul, on the point, are not required to be discussed. (12). The next question to be determined is whether the circular order dt. 9.12.96 Anx. 2 is applicable to the vacancies notified vide Anx. 1/96. In view of the order Anx. 3, I would have held that there could not be carrying forward of the vacancies for the O.B.Cs. in the recruitment to be made in pursuance of the notification dt. 14.2.96 as on the date the notification was issued there was no provision for carrying forward of the vacancies. But in view of the circular order dated 26.5.95 Annx. R/1 relied on by the respondents it cannot be so held. In the Circular order Annx. R-1 clear instructions were issued to the appointing authorities that there shall be 21% reservation for the O.B.Cs. But in view of the circular order dated 26.5.95 Annx. R/1 relied on by the respondents it cannot be so held. In the Circular order Annx. R-1 clear instructions were issued to the appointing authorities that there shall be 21% reservation for the O.B.Cs. in direct recruitment, and the reservation is to be made in accordance with the roster. It has been provided in that circular that 100 point roster is to be kept in the form of running account till the quota provided is reached and not thereafter and as and when there is a vacancy in a particular posts of the same has to be filled from amongst the category to which the post belongs in the roster. This circular order was issued as per the observations of their Lordships in the Sabarwals case. (13). The legal position which emerges out from the case of R.K. Sabarwal (7) is as follows : (i) The concept of vacancies has no relevance in operating the percentage of reservation and the percentage of reservation has to be worked out in relation to number of posts which form the cadre strength. (ii) Reservations provided under government instructions are to be operated in accordance with the roster system to b e maintained by each department and the roster is implemented in the form of running account from year to year. (iii) The running account is to operate till the quota ordered under the Government instructions is reached and not thereafter. (iv) Operation of the roster and running account must come to an end after the appointees in various categories occupied the posts ordered for them in the roster. (v) The roster is to operate till the total posts in the cadre are filled in by the same category of persons whose retirement etc. caused the vacancies then the balance between the reserved category and general category shall always be maintained. (14). Keeping in view the above legal position the State Government issued the circular order dt. 26.5.95 directing that the 100 point roster would be followed. It is to be noticed that 100 point roster had already been issued by the State Government along with the order dt. 26.2.94 which earmarks posts at S.No. 6,9,14,17,22,27,31,36,40,44,48,53,58,64,70,75,78,82,87,94 and 99 for the O.B.C. candidates. Keeping in view the above legal position the State Government issued the circular order dt. 26.5.95 directing that the 100 point roster would be followed. It is to be noticed that 100 point roster had already been issued by the State Government along with the order dt. 26.2.94 which earmarks posts at S.No. 6,9,14,17,22,27,31,36,40,44,48,53,58,64,70,75,78,82,87,94 and 99 for the O.B.C. candidates. Once it is directed that the roster shall be maintained in running account form, it will have to be accepted that the posts remained unfilled in the roster in respect of the candidates of the O.B.C. are to be filled up only from amongst the O.B.C. candidates. (15). There is no substance in this contention that the policy of carrying forward of the vacancies has been made applicable with the retrospective effect vide order Annx.2 dated 9.12.96. As a matter of fact, the 100 point roster had started operating from 26.2.94. It was to be maintained as running account meaning thereby that the posts meant for the OBCs if remained unfilled were outstanding and they could be filled by the candidates of that category. (16). Of course, in the order dt. 26.2.94 it was mentioned that there was no carrying forward of the vacancies in respect of O.B.Cs. but on the issuance of circular order dt. 26.5.95 it became clear that all the posts meant to be filled by the O.B.Cs. were required to be filled by such category of candidates. The circular order dt. 26.5.95 is anterior to the notification no.1/96 and therefore the appointing authorities cannot ignore the directions given in this circular which was issued in the light of the judgment of the Apex Court. (17). The contention of carrying forward of the vacancies is rather misconceived. The vacancies are not carried forward. Rather the posts which are ear marked for the particular category of the candidates are to be filled by such candidates only. The observations of their Lordships in the case of R.K. Sabarwal on the point are reproduced hereunder: ``6. 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 observations of their Lordships in the case of R.K. Sabarwal on the point are reproduced hereunder: ``6. 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 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 form the cadre-strength. The concept of `vacancy has no relevance in operating the percentage of reservation. (18). Thus if the posts of particular category remain unfilled, they are necessarily required to be filled in the next selection from the same category of the candidates. It is manifest that after the judgment of Sabarwals case, there is no carrying forward of the vacancies but the requirement is that the posts of a particular category remained unfilled are necessarily to be filled from the candidates of that very category keeping in view the running account. (19). As already stated, the posts at various serial number in the roster register were earmarked for the O.B.C. candidates. If in the year of commencement of the roster some posts of the O.B.C. category remained unfilled, they are necessarily to be filled by the O.B.C. candidates in 1996 provided such candidates are available Admittedly, there was no recruitment after the opening of the roster register and before the issuance of the Notification No. 1/96. There is therefore no merit in the contention of Mr. Mridul that Circular Order Anx. 2 dt. 9.12.96 should be ignored by the appointing authorities while making selections to the posts of Teacher Gr.III. (20). This contention is also rather misconceived that the reservation for OBCs has been made with retrospective effect. Reservation for OBCs was made vide order dated 26.2.94 and new Roster of 100 point was also prescribed earmarking the posts for the O.B.C. category candidates. (20). This contention is also rather misconceived that the reservation for OBCs has been made with retrospective effect. Reservation for OBCs was made vide order dated 26.2.94 and new Roster of 100 point was also prescribed earmarking the posts for the O.B.C. category candidates. Thereafter, vide circular order dated 26.5.95 the Roster was directed to be maintained as running account year to year with a direction that the running account would operate till the quota provided was reached. Thus on the basis of circular order dated 9.12.96, it cannot be said that the carry forward rule for the OBCs was made applicable with back date. The posts were already earmarked from 26.2.94 when the Roster was opened. That being so, the case of Acctt. General vs. S. Dorai Swamy (supra) does not help the petitioner. (21). The appointments could be made upto 30.6.97. Rule 8 provided that the vacancies should be determined on 1st of Jan. and 1st of July of each year. This clearly means that the select list prepared for the vacancies determined on 1st of January would have expired on 30th June. However, stay order was passed by this Court on 5.6.97 and it was specifically stated that list would not expire on 30.6.97. The list survives under the orders of this Court. The respondents, therefore, can make appointments to the posts advertised. (22). Consequently, there is no merit in this writ petition which is hereby dismissed.