JUDGMENT : Honble Mr. V.K. Bhatnagar Member (Adm.):- The admitted facts of the case are that the respondents issued an advertisement in the Indian Express on September 18, 2000 inviting applications for the post of Registrar/Demonstrator in the Medical Education Department Himachal Pradesh. In all there were 40 posts for which applications had been invited and out of these one post in the department of ophthalomology, According the Recruitment & Promotion Rules notified on September 18, 1996 (AnnexureA/2) for the post of Registrar/Demonstartor, 50 percent of the posts are to be filled in by transfer from amongst in service candidates (also known as General Dirty Officer - to the short GDO) and 50 percent by direct/open recruitment The Rules further provided that if candidates from one group/category are not available, the posts would be filled up by candidates from other group/category. Rules further prescribe that for rotation of vacancies between -in service candidates and the open candidates, subject wise roster register will be maintained in the Indira Gandhi Medical College Shimla. The case of the applicant is that he has to appear as a direct candidate but in the advertisement the post of Registrar Ophthalmology is shown as reserved for General Duty Officer. It has been pleaded that the post now sought to be filled up was vacated on the completion of three year tenure of Dr. Nidhi Kaunshal who had been selected and had joined in the year 1997 as a direct recruit against the post reserved for direct candidature. The post vacated by Dr. Nidhi Kaushal should, therefore, go to the direct candidate. The applicant made a representation to respondent No.2 on September 18, 2000 but the mistake was not rectified. In this background this original application has been filed with the prayer that reservation of vacancy for the post of Registrar in the Deptt. of Ophthalmology in favour of General Duty Officer may be quashed and respondents be directed to strictly followed the roster and treat the said vacancy as reserved for direct candidates in accordance with rules and guidelines. 2. This original application has been opposed by respondents 1 to 3 and respondent No.2 filed a reply on behalf of these respondents. Respondents No.6 has filed a separate reply. 3. On behalf of respondents 1 to 3 it has been submitted in the reply that there are only two sanctioned posts of Registrars in the Dept. 2. This original application has been opposed by respondents 1 to 3 and respondent No.2 filed a reply on behalf of these respondents. Respondents No.6 has filed a separate reply. 3. On behalf of respondents 1 to 3 it has been submitted in the reply that there are only two sanctioned posts of Registrars in the Dept. of Ophthalmology and as per record available, the posts have been filled in the posts as under: - (i) Dr. Raja Tuli Direct candidate (ii). Dr. Mohan Lal Pandey GDO (iii) Dr. Nidhi Kaushal Direct candidate (iv) Dr. Vinod Sharma Direct candidate 4. On the basis of above table, respondents have pleaded that three posts of Registrar have been awarded to direct candidates and therefore, there appears to be no justification for reserving the present post for direct candidate, otherwise the department would not be able to maintain the balance between in service GDOs and direct candidates, particularly when eligible post-graduate in -service candidates are available and the applicant has not yet completed his post graduation qualifications. On that ground it has been pleaded that he original application may be dismissed. 5. Respondent No.6 has more or less filed reply on the same lines. 6. The learned counsel for the parties have been heard and pleadings have been gone into. 7. At the very outset a reference may be made to the plea of the respondents that the applicant to the relevant time had not completed his post graduation degree and as such was not eligible and as such is not eligible to be considered as a direct recruit for the post of Registrar. However, this controversy need not be addressed to for decision of the present Original Application because the point to be decided in this Original Applications is as to whether the 5th Vacancy now available, should go to a direct recruit or to a GDO. 8. The Rules prescribe maintenance of a roster for rotation of vacancies between in service candidates and direct candidates as mentioned earlier. Since the inception of new Rules, details of roster wise allotment of seats and the actual appointment made to are as under- SI. No. To be filled in filled in 1st Post Direct Dr. Rajiv Tulli Direct. 2nd Post GDO Dr. Mohan Lal Pandey GDO. 3rd Post Direct Dr. Nidhi Kaushal Direct. 4th Post GDO Dr. Vinod Sharma Direct. 9. Since the inception of new Rules, details of roster wise allotment of seats and the actual appointment made to are as under- SI. No. To be filled in filled in 1st Post Direct Dr. Rajiv Tulli Direct. 2nd Post GDO Dr. Mohan Lal Pandey GDO. 3rd Post Direct Dr. Nidhi Kaushal Direct. 4th Post GDO Dr. Vinod Sharma Direct. 9. Therefore, if the post had been filled in strictly according to roster, the 5th vacancy should have been gone to direct candidate. However, confusion ahs arisen because the 4th post meant for GDO has been filled in by direct candidate. The plea of the applicant is that the 5th post has failed vacant due to completion of tenure of Dr. Nidhi Kaushal who was a direct candidate and therefore the resultant vacancy i.e. the 5th post and should go to a direct recruit. On the other hand the plea of the respondents in that out of 4th posts, the direct recruit had already occupied the post three times and the 5th post should therefore, go to a GDO. 10. In this behalf the learned counsel for the respondent has referred to the judgment of the Honble Supreme Court in the case of State of Punjab and others versus Dr. R.N. Bhatanagar and another (1999) 2 SCC 330. 11. The controversy in this case was almost similar except that while in the present case the posts are to be filled in on tenure basis for three years, in the case before the Honble Supreme Court the post had to be filled in on regular basis. However, that should not made any difference to the legal position. In the case of Dr. R.N.-Bhatnagar the Honble Supreme Court has clearly held that in a case where t le entry to the service is from two or more sources it is a case of application of Article 16 (1) of the Constitution and not 16 (4) of the Constitution. Article 16 (4) deals with special provision in respect of reserved categories like SC/ST and backward classes and therefore, the Honble Supreme Court had in the case of R.K. Sabharwal versus State of Punjab followed a different approach. Examining that judgment the Honble Supreme Court in the case of Dr. Article 16 (4) deals with special provision in respect of reserved categories like SC/ST and backward classes and therefore, the Honble Supreme Court had in the case of R.K. Sabharwal versus State of Punjab followed a different approach. Examining that judgment the Honble Supreme Court in the case of Dr. R.N. Bhatnagar and another, has observed that as per Article 16 (4) which carves out a separate field for itself from the general sweep of Article 16 (1) which guarantees equality of opportunity in matters of appointments in government services to all citizens of India, the reservation for these categories in employment has to be achieved by earmarking the requisite percentage of posts for the reserved category of candidates and by pitchforking these posts on roster points on requisite points roster and when such a roster takes a full cycle, posts earmarked on reserved points will enable the requisite reserved category of candidates to fill up these posts. After this is done, the roster would be treated to have achieved its purpose. Whenever a reserved candidate vacated to be filled only by a candidate belonging to the reserved category. On the contrary, in a rule of recruitment from two different sources where recruitment is permitted by departmental promotees and the direct recruits, such recruits from both the sources get absorbed a cadre. Roster merely serves to regulate entry from two sources in the cadre. That when the posts m the cadre are filled in from two sources, whether the candidate comes from the sources of departmental promotees or by direct recruitment, once both of them entere a common cadre, their birthmarks disappear and they get completely integrated in the cadre. Therefore, the roster for promotees and direct recruits is to be continued every time a vacancy arises and there is no question of filling up of vacancy arising out of retirement of a direct recruit by a direct recruit or on the retirement vacancy of a promotee, by a promotee. On the basis of this view taken by the Honble Apex Court in the case of R.N. Bhatnagar and another, the plea of the applicant that as the post in question had been vacated by Dr. Nidhi Kaushal, a direct candidate, it should go to a direct candidate, cannot be accepted. On the basis of this view taken by the Honble Apex Court in the case of R.N. Bhatnagar and another, the plea of the applicant that as the post in question had been vacated by Dr. Nidhi Kaushal, a direct candidate, it should go to a direct candidate, cannot be accepted. The posts in the cadre have to be filled in by continuing the roster in the order prescribed every time a vacancy arises and the matter has to be examined in that manner. 12. The roster position as reflected earlier shows that the first vacancy was given to direct candidate, second to GDO, 3rd to direct candidate, fourth to GDO. However, since against the 4th post a GDO wan not available, it was filled in by direct candidate. The question to be examined is whether filling up of a post meant for GDO, by a direct candidate is to make any difference in the roster position respect of 5 post. The matter was also considered by the Honble Apex Court in the case of Dr. R.N. Bhatnagar and others. In that case the Rules provided that 75 percent of posts of Professors would be filled in by promotion and 25 percent by direct recruitment. The 8th vacancy therefore, was meant to be filled in by direct recruit. As the direct recruitment has to be made through Public Service Commission and it takes time to fill in a post by direct recruitment had therefore, in that case, the department held a DPC meeting and filled the 8th post by promotion. The Honble Supreme Court held that the promotee officer could only fill in the 9th post which was earmarked for the departmental promotee. The 8th post roster point was earmarked for a direct recruit and it would be deemed that the 8th point was carried forward and when a direct candidate was appointed qua the roster point 8, though he was treated as junior to the promotee officer, (promoted earlier) he could be said to be appointed on roster point 8, which was carried forward. The direct candidate cannot be said to have occupied roster point No.9 which was meant only for a departmental promotee and on which the departmental promotee got accelerated promotion. The direct candidate cannot be said to have occupied roster point No.9 which was meant only for a departmental promotee and on which the departmental promotee got accelerated promotion. The Honble Apex Court held that "consequently the 9th roster point got exhausted by promotee and 10th, 11th point went to promotees counting 9th point as a starting point for fresh cycle for three promotees and 12th point then was for direct recruit". On that basis the court held that 16th point on which the controversy was before the Honble Supreme Court, would go to direct recruit. - 13. In the present case the same reasoning has to be followed. The 4th point was meant in GDO but was filled in by direct candidate. However, the direct candidate cannot have occupied the roster point 4, meant for GDO and as such his appointment would for all purpose would he considered for 5th point of the roster. In that view of the matter, the present advertisement (Annexure-A/1) is meant for roster point 4, which is still vacant as a direct recruit could not exhaust it 14 The learned counsel for private respondents referred to the case of All India Federation of Central Excise of Versus Union of India and others (1999) 3 SCC 384 which also dealt with a similar matter, in that case the recruitment had to be made from three sources Indian Customs and Central Excise (Group A) service and the three feeder categories were as under: - (i) Superintendents of Central Excise, Group B. (ii) Superintendents of Customs (P) Group B. (iii) Customs Appraisers, Group B. 15. In that case the ratio for the three years service for promotion to Group A service was 6:2:1. However, this quota was not followed and the reply of Union Of India and others was that it had been found that earlier there had been excess promotion in Group A from Excise Superintendents Group B category and therefore, more officers from other feed or channels had been promoted so that there would be no imbalance when the final review took place. The Honble Apex Court held that one of these groups in the quota had more promotions earlier and if the Govt. of India maintains to off-set the said advantage, such an action cannot be said to be infair. - 16. The Honble Apex Court held that one of these groups in the quota had more promotions earlier and if the Govt. of India maintains to off-set the said advantage, such an action cannot be said to be infair. - 16. On the basis of above legal position the present vacancy would represent 4th point in the roster meant for GDOs. Even otherwise, as held by the Honble Supreme Court in the case of All India Federation of Central Excise Versus Union of India and others referred to above if the respondents want to correct the imbalance which has been caused by giving earlier post excess of quota to direct candidates, the present one can go to GDO. In view of above discussion the original applications fails and m disallowed. The interim order passed on October 18, 2000 stands vacated. -