JUDGMENT 1. - The instant writ petition came-up for interim order alongwith identical matters mentioned in Schedule "A" to this judgment. However, learned counsel for the parties submitted that as the matters involve reversion and issue of promotion, the same may be heard finally. Though in all these cases the petitioners have preferred appeals against the order of the Rajasthan Civil Services Appellate Tribunal, which were limited to the issue of reversion, learned counsel for the parties, sought permission of the Court to argue all legal issues for the reason that the petitions involve certain substantial questions of law requiring authoritative decision. In the interest of justice, learned counsel were allowed to agitate all the issues except the issue of maintainability of the appeals by the present petitioners before the Tribunal. 2. For determining the controversy involved herein, the provisions of the Rajasthan Educational Subordinate Service Rules, 1970 (hereinafter referred to as "the Rules") require consideration. 50% posts of the School Lecturer (Commerce) are to be filled-up by direct recruitment and 50% by promotion on the basis of seniority after determining the vacancies under rule 9 of the said Rules from the post of Teacher Gr II working in the department. It appears that the Department did not carry the exercise either of filling the vacancies directly or by promotion for a very long time. Thus, the present petitioners and other similar persons filed writ petitions before the Jaipur Bench and the Principal Seat of this Court in 1991. The judgment was rendered by the Jaipur Bench in a bunch cases alongwith S.B. Civil Writ Petition No. 5658/1991, Anjani Kumar v. State of Rajasthan and others, etc. etc. on 22.1.1992 . While interpreting the provisions of the said Rules, this Court held that determination of year-wise vacancies under rule 9 of the Rules is mandatory. However, looking to the fact that the respondents have not taken the exercise for more than two decades, the Court directed them to determine the vacancies year-wise and proceed with appointments within a stipulated period. While deciding the said case, this court has placed reliance upon large number of judgments of this Court decided earlier. However, looking to the fact that the respondents have not taken the exercise for more than two decades, the Court directed them to determine the vacancies year-wise and proceed with appointments within a stipulated period. While deciding the said case, this court has placed reliance upon large number of judgments of this Court decided earlier. The relevant part of the judgment runs as under:- "In the light of these decisions it has to be held that the provisions contained in rule 9 for year-wise determination of vacancies, which are required to the filled by direct recruitment as well as by promotion, are mandatory. Sub-rule (2) of rule 9 imposes an additional obligation on the competent authority to make year-wise determination meant for promotion quota, if such vacancies have not been determined for previous years. Since the provisions contained in rule 9 are mandatory and the failure of the respondents to make year-wise determination of vacancies for the posts of Teacher Grade I (School Lecturer) (Commerce) cannot, in any manner, be justified , the respondents are directed to make year-wise determination of the vacancies of Teacher Grade I (School Lecturer) in Commerce for the years 1982-83 and onwards and after determination of the vacancies, the respondents are directed to undertake exercise for making regular promotions keeping in view the overall quota meant for direct recruitment and for promotion. This exercise must be completed within a period of six months from the date of presentation of the copy of this order. While making year-wise promotion, the respondents must keep in mind the Rules of Promotion in particular years for which the vacancies are required to be filled." 3. The writ petitions filed before the Principal Seat bearing S.B. Civil Writ Petition No. 4229/1994, Prahlad Das Sewak v. State of Rajasthan and others , etc. etc. were decided by the judgment and order dated 2.7.97 and the present petitioners, who were also the petitioners therein, requested the Court to dispose of the writ petitions in terms of the judgment delivered by the Jaipur Bench. However, the Court refused to do so and for such a refusal, the Court observed as under- "The judgment in writ petition No. 5658/1991 is not applicable in the present cases. However, the Court refused to do so and for such a refusal, the Court observed as under- "The judgment in writ petition No. 5658/1991 is not applicable in the present cases. There is a change of situation and in the case in hand, it has been specifically averred by the State Government that the D.P.C. had met in the year 1994 and proper selection was made. However, it is not clear from the written statement whether the names of the petitioners were considered by the D.P.C. and it is also not clear from the written statement whether any of the petitioners in the writ petition was considered within the Zone of consideration...being faced with the situation, there is no alternative with this Court but to dispose of all the writ petitions at this stage with the observation that the petitioners, if are aggrieved of the selections made by D.P.C. in the year 1994, or if the petitioners found that "seniority cum merit" has been by-passed without any reasonable cause and if it is found that the names of the petitioners were not considered in case they were under the Zone of Consideration, the petitioners are at liberty to challenge the selection or their non-selection on any of the grounds available to them in view of the changed circumstances during the pendency of the writ petition. The grievance of the petitioners that no D.P.C. had met after 1982 is no more available to them in view of the written statement filed by the State wherein it is specifically mentioned that the D.P.C. had met in the year 1994 during the pendency of the writ petition. There is no merit in the writ petition in view of the pleadings, pleaded by the parties and, therefore, the writ petitions are dismissed with no costs. However, because of the reason that during the pendency of the writ petition, D.P.C. had met and some selections had been made, the petitioners are at liberty to challenge the same, if so advised, by filing a fresh petition for the fresh cause of action arising after filing the present writ petition." (Emphasis added). 4. Mr. G.K. Vyas and Mr. However, because of the reason that during the pendency of the writ petition, D.P.C. had met and some selections had been made, the petitioners are at liberty to challenge the same, if so advised, by filing a fresh petition for the fresh cause of action arising after filing the present writ petition." (Emphasis added). 4. Mr. G.K. Vyas and Mr. I.R. Chaudhary, learned counsel for the petitioners have canvassed before the Court that the aforesaid two judgments clearly issued directions to the respondents to determine the year-wise vacancies as provided under rule 9 of the Rules every year and to make the appointments by direct recruitment as well as by promotion and the respondents cannot deprive the petitioners of their legitimate rights for being considered for promotion and in the instant case as the respondents have not undertaken the exercise after 1994, they have violated the mandate issued by this Court in Anjani Kumar (supra). 5. Mr. M.R. Singhvi, learned counsel appearing for the respondents has submitted that the mandate in the said cases had not been to undertake the exercise of determining the vacancies under rule 9 every year and to make appointments on those vacancies year-wise and had it been so, the earlier writ petitions filed by the petitioners ought not have been dismissed by the judgment dated 2.7.97 in Prahlad Das Sewak (supra). Merely liberty was given to challenge the irregularity, if any, which occured in the selection process undertaken by the respondents and concluded in 1994, Mr. Singhvi submitted, these petitions are barred by the principle of constructive res judicata enshrined in Explanation IV to Section 11 and Order 2 rule 2 C.RC. as the prayer which they are claiming in these writ petitions had already been rejected in the aforesaid petitions vide judgment dated 2.7.97. 6. Before proceeding further, it is necessary to make it clear that vide judgment dated 2.7.97 this Court made it clear that after the change of factual matrix in 1994 when the process of promotion had been undertaken by the respondents, the situation stood changed and the judgment in Anjani Kumar dated 22.1.92 was no more attracted and the petitioners were given liberty to challenge, if there had been any, irregularity or illegality in the selection process held in 1994.The relevant rules provide as under- "4. Composition and Strength of Service. - 4. Composition and Strength of Service. - 4. There shall be separate cadre in each group of service specified in Schedule I to VI such as provided that the Government may, from time to time- (a) create any post, permanent or temporary, as may be found necessary, and (b) leave unfilled or held in abeyance or abolish or allow to lapse any post, permanent or temporary, from time to time, without thereby entitling any person to any compensation." "49. Determination of Vacancy : "1 (a)-Subject to the provisions of these Rules, the appointing authority shall determine, on first April every year, the actual number of vacancies occurring during the Financial Year." 22. Selection by the Appointing Authority- "Subject to the provisions of rules 7, 7-A and 7-B, the appointing authority shall select candidates according to the order of merit in which their names appear in the list prepared under rule 20, provided that inclusion of a candidate's name in the list confers no right to appointment " 7. The aforesaid provisions make it clear that a person, whose name appears in the select list, does not have any legal right to appointment and this provision is in consonance with the law laid down by the Hon'ble Supreme Court. 8. A Constitution Bench of the Supreme Court in Shanker Sen Das v. Union of India, AIR 1991 SC 1612 , has held that appearance of the name of a candidate in the select list does not give him a right of appointment. Similar view has subsequently been taken by the Hon'ble Supreme Court in Asha Kaul v. State of J & K, 1993(2) SCC 573 , Union of India v. S.S. Uppal, AIR 1996 SC 2340 , Hanuman Prasad v. Union of India and Others, 1996(8) JT 510 , Bihar Public Service Commission v. State of Bihar, AIR 1997 SC 2280 , Union of India v. K.V. Vijesh, 1996(3) SCC 139 , Syndicate Bank and others v. Shanker Paul, 1997(7) JT 155 , and Vice Chancellor, University of Allahabad v. Dr. Anand Prakash Mishra, 1997(10) SCC 264 . 9. The statutory provisions referred to above makes it clear that the State has reserved a right not to fill-up the vacancy or to keep it in abeyance or abolish it without any compensation to any person. Anand Prakash Mishra, 1997(10) SCC 264 . 9. The statutory provisions referred to above makes it clear that the State has reserved a right not to fill-up the vacancy or to keep it in abeyance or abolish it without any compensation to any person. The word "Compensation" referred to in this Clause does not mean any pecuniary compensation but it denotes that if a candidate is eligible at the relevant time and the post is not filled-up and subsequently he became ineligible, he will not be entitled to be considered on the eligibility criteria existing at earlier stage. 10. Making appointment or filling-up the posts is a policy matter, which is to be taken by the competent authority and even if the vacancies are available and financial constraints are not in existence, the Court cannot issue direction or compel the authority to change its policy which involves financial burden on it unless it is a clear-cut case of malafide or arbitrariness. (Vide Union of India v. Tej Ram Paras Ramji Bombhate, 1991(3) SCC 11 ). In Government of Orissa v. Har Prasad Das, AIR 1998 SC 375 , the Apex Court has held as under- "Whether to fill-up a post or not, is a policy decision and unless it is shown to be arbitrary, it is not open to the Tribunal to interfere with such decision of the Government and direct it to make further appointments. The Tribunal, in directing the Government to make further appointment on the efficiency ground of public administration, went beyond its jurisdiction." 11. Similarly, in State of Haryana v. Piara Singh, 1992(4) SCC 118 , the Apex Court has held that creation and abolition of post and filling-up the same is the prerogative of Executive and it is the Executive which lays down the conditions of service subject to the law made by the appropriate legislature. The Court comes into the picture only to ensure observance of the fundamental right, statutory provisions, rules and other instructions governing the conditions of service. The main concern of the rule in such matters is to ensure Rule of law and to see that the executive acts fairly and give a fair deal to its employees consistent with the requirements of Articles 14 and 16. The main concern of the rule in such matters is to ensure Rule of law and to see that the executive acts fairly and give a fair deal to its employees consistent with the requirements of Articles 14 and 16. The Court cannot issue directions ignoring the aforesaid consideration as such direction may adversely affect the public exchequer and may, also, increase the cadre strength of a particular service or class of category. 12. In J & K Public Service Commission v. Narendra Mohan and Others, 1994(2) SCC 630 , the Apex Court has observed as under- "It is difficult to accept the contention of Shri Rao to adopt the chain system of recruitment by notifying each year's vacancies and for recruitment of the candidates found eligible for the respective years. It would be fraught with grave consequences. It is settle law that the Government need not immediately notify vacancies as soon as they arose. It is open, as early as possible, to inform the vacancies existing or anticipated to the PSC for recruitment and that every eligible person is entitled to apply for and to be considered of his claim for recruitment provided he satisfies the prescribed requisite qualifications. Pegging the recruitment in chain system would deprive all the eligible candidates as on date of inviting application for recruitment offending Articles 14 and 16." 13. In Y.U. Rangaiah and others v. J. Sreenivasa Rao and others, AIR 1983 SC 852 , the Hon'ble Supreme Court examined the provisions of rule 34 of the Andhra Pradesh Registration and Subordinate Services Rules, which provided for preparation of panel of suitable candidates in the month of September every year. In the said case, the vacancies were not determined for the year 1976 and the Rules stood amended in 1977 and the vacancies were filled-up according to the amended Rules. The Apex Court rejected the contention that the vacancies had to be filled-up as per amended Rules and held that "a panel could have been prepared in the year 1976" and "the vacancies which occured prior to the amended rules would be governed by the old Rules and not by the amended Rules." The said judgment was approved and followed by the Supreme Court in P. Ganeshwar Rao v. State of Andhra Pradesh and others, AIR 1988 SC 2068 . 14. 14. In Union of India v. N.R. Banerjee and others, 1997(9) SCC 287 , the Apex Court has held that if the rules mandatorily provide for preparation of the panel every year, the authority must prepare it unless it is satisfied that it is not necessary to undertake such an exercise for non-availability of the vacancy. 15. If the Rules involved in the instant case are examined in the light of the aforesaid judgments, one reaches the inescapable conclusions that the Rules mandate in unambiguous language to determine the vacancies every year but the State Government is at liberty not to fill-up the said vacancies immediately or at all, for the reason that holding that after determining the vacancies. The State is bound to fill-up the vacancies immediately thereafter, would render the provisions of rule 4 nugatory. 16. In State of Bihar v. Hira Lal Kejriwal and others, AIR 1960 SC 47 , it has been held that to ascertain the meaning of a section, it is not permissible to omit any part of it. The whole section is to be read together as no part of it can be made redundant. In A.K. Gopalan v. State of Madras, AIR 1950 SC 27 , the Hon'ble Supreme Court observed that every word of that Clause must be given its true and legitimate meaning and in the construction of a statute and it is improper to omit any word which has a reasonable and proper place in it or to refrain from giving effect to its meaning. In Ashwani Kumar Ghose and another v. Arabindo Bose and another, AIR 1952 SC 369 , it was observed that it is not a sound principle of construction to brush aside words in a statute as being inappropriate surplusage, if they can have appropriate application in circumstances conceivably within the contemplation of the statute. It was further held that the words of a statute never should be added to or substracted from without almost a necessity. (Vide Shyam Kisheri Devi v. Patna Municipal Corporation, AIR 1966 SC 1678 ). 17. In Martin Burn Ltd. v. Corporation of Calcutta, AIR 1966 SC 529 , the Hon'ble Supreme Court held as under- "That a result flowing from a statutory provision is never an evil. A Court has no power to ignore that provision to relieve what it considers a distress resulting from its operation. 17. In Martin Burn Ltd. v. Corporation of Calcutta, AIR 1966 SC 529 , the Hon'ble Supreme Court held as under- "That a result flowing from a statutory provision is never an evil. A Court has no power to ignore that provision to relieve what it considers a distress resulting from its operation. A statute must, of course, be given effect to whether a Court likes the result or not." 18. An interpretation of the Act without giving full effect to the language used, would be unsupportable and hence cannot be made. (Vide Chunibhai Deajibhai v. Narayan Rao Jambekar and another, AIR 1965 SC 1457 ). 19. After considering a large number of its earlier judgments, the Supreme Court, in Sultana Begum v. Prem Chand Jain, 1997(1) SCC 373 , has observed as under- "The courts have also to keep in mind that an interpretation which reduces one of the provisions as a "dead letter" or "useless lumber" is not harmonious construction." (Emphasis added) 20. The same view has been taken by the Supreme Court in State of Bihar v. Bharat Distillery Ltd. and others, AIR 1997 SC 1511 , wherein it has been held that an interpretation which renders an enactment an exercise in futility, should be avoided. It means that enacting such a provision in subordinate legislation was "an exercise in futility" and the product came as a "purposeless piece" of subordinate legislation and this provision has been enacted without any purpose and the entire exercise to enact such a provision was "most unwarranted besides being uncharitable. 21. In Institute of Chartered Accountants of India v. Price Water House and another, 1997(6) SCC 312 , the Court has held that the interpretation making any provision as surplusage is not permissible. Rule of Interpretation does not permit to render any particular part of a provision as otiose, wholly redundant or surplusage. (Vide S.C. Railway Employees Co-operative Society Employees Union v. Registrar, Co-operative Societies and others, 1998(2) SCC 580 , and Ramu Ram v. State of Rajasthan and others, 1998 RLW 1570 . 22. The respondents have placed the affidavits before the Tribunal as well as before this Court to the extent that after completion of the exercise in 1994, the promotions and appointments had been made and all the vacancies had been filled-up. 22. The respondents have placed the affidavits before the Tribunal as well as before this Court to the extent that after completion of the exercise in 1994, the promotions and appointments had been made and all the vacancies had been filled-up. Subsequently, the strength of the commerce students had gone down in the schools and, therefore, the strength of the working-teachers was found excessive. Under these compelling circumstances it was not necessary at all to determine the vacancies and the person who had been promoted on ad-hoc basis, were required to be reverted and the respondents did not feel it necessary to hold D.RC. after determining the year-wise vacancies as they were already facing the problem of excess commerce teachers. The fact of reduction of number of students in commerce had not been denied by the petitioners. Moreover, the stand of the respondent-authorities seems to be justified/bonafide as there are no allegations of malafides against the respondents. 23. In view of the above, I am of the considered opinion that the State has a right not to fill-up the vacant post or keep the post in abeyance as creation and abolition of post is in its exclusive domain. The Court can interfere only in case the vacancies are not filled for arbitrary reason or malafide. However, the provisions of rule 9 are mandatory as it provide determination of year-wise vacancies, in exceptional circumstances like in the instant petitions where respondents are already facing the problem of excess commerce teachers and vacancies are not available, the Court is not required to issue any direction to the respondents to undertake the exercise in futility. 24. The petitions are accordingly dismissed. There shall be no order as to costs.Writ Petition Dismissed. *******