JUDGMENT 1. - This group of three appeals arises from the common judgment dated 19th October, 2005 passed by the Single Judge and raises common issues, and, therefore, these appeals were heard together and are being disposed of by this common judgment. 2. On 4th August, 2003, the Rajasthan Public Service Commission (for short, 'RPSC') issued a notification for holding examination for the posts of Munsif & Judicial Magistrate under the Rajasthan Judicial Service Rules, 1995 (for short 'RJS Rules'). 3. The relevant portion regarding vacant posts in the advertisement is reproduced as it is : dze0 la0 inksa dh dqy la[;k lkekU; in vuqlwfpr tkfr vkjf{kr in jktLFkku dh vuqlwfpr tutkfr vU; fiNM+k oxZ . . lkekU; efgyk lkekU; efgyk lkekU; efgyk lkekU; efgyk 1- 89 38 09 12 02 08 02 15 03 2- 19 & & 07 01 08 03 & & 4. The advertisement was issued for 108 posts in all. There were division of seats and reservation in each category of Scheduled Caste (SC) and Scheduled Tribe (ST) and Other Back Ward Classes (OBC). The advertisement clarified that there was category wise horizontal reservation for women candidates and in case of non-availability of women candidates in the respective category, their seats shall be filled in by normal procedure. 5. For the sake of convenience, we shall refer the examination under the notification dated 4th August, 2003, 'RJS exam, 2003'. 6. The appellants in all the three appeals appeared in the written examination conducted by the RPSC on 22nd and 23rd February, 2004. All the three appellants applied in the general category; one of the appellants in special appeal No. 7/2006-Suman Rao applied in the category of general candidate (woman). These appellants were sent call letters by the RPSC for the interview before the interview board. 7. The final result of the RJS Exam., 2003 was declared by the RPSC on 21st August, 2004 whereby against 108 posts, 81 candidates were selected only. It is common ground of the parties that 3 seats reserved for SC (women candidates), 5 seats for ST (women candidates) were not filled up as suitable candidates were not available in these two categories. The parties are ad-idem that there remained unfilled 8 posts of SC category and 11 posts of ST category and, thus, 19 unfilled posts of SC/ST category remained. The parties are ad-idem that there remained unfilled 8 posts of SC category and 11 posts of ST category and, thus, 19 unfilled posts of SC/ST category remained. Thus, it is an admitted position that in the RJS Exam, 2003, in all 27 vacancies of SC, ST and women candidates were left unfilled by the RPSC. 8. It is also on undisputed position that the RPSC prepared reserve list of general candidates containing the names of 19 candidates. The names of all the three appellants find place in the reserve list. 9. Rule 9 of RJS Rules, 1955 provides for reservation of seats for Scheduled Caste/Scheduled Tribe/Other Backward Classes and Women candidates. It provides thus : "9. Reservation of Scheduled Castes/Scheduled Tribes/Other Backward Classes and Women Candidates.-(1) Reservation for the Scheduled Castes and Scheduled Tribes candidates shall be at the time of initial recruitment only in the proportion of 16% and 12% respectively of the vacancies advertised. In the event of non-availability of eligible and suitable candidates amongst the Scheduled Castes and the Schedules Tribes, as the case may be, in a particular year, the vacancies so reserved for them shall be filled in accordance with the normal procedure and equivalent number of vacancies shall be reserved in subsequent year. Such vacancies which remain so unfilled shall be carried forwarded to the subsequent three years in total and there after such reservation would lapse:- Provided that the total reservation including carried forward vacancies shall not exceed the percentage prescribed for total number of posts in the category for which direct recruitment is made. (2) Reservation for other Backward Classes shall be at the time of initial recruitment only in the proportion of 21% of the vacancies advertised. In the event of non-availability of eligible and suitable candidates amongst the Other Backward Classes in a particular year, the vacancies so reserved for them shall be filled in accordance with the normal procedure and vacancies shall not be carried forward to the subsequent year. (3) Reservation for women candidates shall be 20% category wise in direct recruitment. In the event of non-availability of eligible and suitable candidates amongst the Other Backward Classes in a particular year, the vacancies so reserved for them shall be filled in accordance with the normal procedure and vacancies shall not be carried forward to the subsequent year. (3) Reservation for women candidates shall be 20% category wise in direct recruitment. In the event of no-availability of the eligible and suitable Women Candidates in a particular year, the vacancies so reserved for them shall be filled in accordance with the normal procedure and such vacancies shall not be carried forward to the subsequent year and the reservation shall be treated as horizontal reservation i.e. the reservation of women candidates shall be adjusted proportionately in the respective category to which the women candidate belongs." 10. The challenge to their non-selection to the posts of Munsiff & Judicial Magistrate is principally founded by the appellants on the ground that Rule 9 of the RJS Rules, 1955 mandates that in the event of non-availability of eligible and suitable candidates amongst the Scheduled Castes and Scheduled Tribes, as the case may be, in a particular year, the vacancies so reserved for them shall be filled, in accordance with normal procedure; all along in the previous years until 1998 this method has been followed in as much as the unfilled seats of reserved category were filled by normal procedure i.e. selection of the candidates from the general category. According to the appellants since against 108 posts of Munsiff & Judicial Magistrates advertised on 4th August, 2003, only 81 candidates were selected and 27 seats of Scheduled Castes/Scheduled Tribes candidates left unfilled due to non-availability of eligible and suitable candidates, the unfilled 27 reserved posts ought to have been filled by the normal procedure and had that been done, the appellants would have been included in the main select list instead of reserved list. They are, thus, entitled to be appointed as Munsiff & Judicial Magistrate. 11. In opposition to the case set up by the petitioners, on behalf of the RPSC, the defence was set up that the unfilled vacancies of SC and ST categories cannot be filled up by adopting normal procedure i.e. from general category candidates in view of the 81st Amendment in the Constitution effective from 9th June, 2000 whereby Article 16 (4-B) has been inserted in the Constitution. The RPSC stated in their reply that pursuant to the insertion of Article 16(4-B), the State Government issued notification on 10th October, 2002 and the process of selection was completed according to the Constitutional provision contained in Article 16(4-B) and the notification dated 10th October, 2002. RPSC submitted that though Rule 9(3) as well as the advertisement dated 4th August, 2003 provide that in case of non-availability of women candidates in a particular year, the posts will be filled in accordance with the normal procedure; it only means that the male candidates of the respective categories shall be adjusted proportionately in the respective category to which the woman belongs. This, according to the R.PS.C., did not mean that the vacancies of SC and ST women would be filled from general category male candidates instead the same has to be filled up by SC/ST male candidates. The RPSC also submitted in their reply that the reservation to SC/ST can be provided by an executive order after 81st Amendment in the Constitution and according to which unfilled vacancies of SC/ST will not at all be filled by general category candidates because these vacancies have now been treated as a separate class of vacancies to be filled up in any succeeding year/years. 12. On behalf of the Rajasthan High Court, separate reply was filed. According to them, for the current year (2003), in all 24 vacancies of SC and ST category were advertised. Out of which 14 were of SC and 10 were of ST category. By the same advertisement, 19 backlog vacancies of SC and ST category were also advertised. In all 43 vacancies were advertised for SC and ST category, out of which 27 vacancies remained unfilled. In so far as 19 backlog advertised vacancies were concerned,'only 8 vacancies of SC category and 5 vacancies of ST category were filled as per RJS Rules, 1955 and thereby 6 vacancies of ST category remained unfilled. Insofar as 24 advertised current year vacancies were concerned, only 3 vacancies of SC category were filled in and 21 vacancies (11 SC and 10 ST) remained unfilled. Thus, in all 27 vacancies of SC and ST category remained unfilled and unless the said unfilled vacancies were de-reserved by State Government in consultation with the High Court, the unfilled vacancies of SC and ST category could not be filled-up by general category candidates (normal procedure). 13. Thus, in all 27 vacancies of SC and ST category remained unfilled and unless the said unfilled vacancies were de-reserved by State Government in consultation with the High Court, the unfilled vacancies of SC and ST category could not be filled-up by general category candidates (normal procedure). 13. The State Government (respondent No. 1) did not file any reply-affidavit. 14. The Single Judge held that in case selections were made strictly in accordance with Rule 9(3), the petitioners could get the chance for appointment. It was also observed by the Single Judge that the RJS Rules, 1955 are not included in the list of the Rules covered by the notification dated 10th October, 2002 which provided that in the event of non-availability of the eligible and suitable candidates amongst the Scheduled Caste and Scheduled Tribe, as the case may be, in a particular year, the vacancies so reserved for them shall be carried forward until the suitable Scheduled Caste and Scheduled Tribe candidates are available and that no vacancy reserved for Scheduled Caste and Scheduled Tribe candidates shall be filled by promotion as well as by direct recruitment from general category candidates. However, the Single Judge held that since the selection process was already over and appointments have been made, he would not unsettle the settled position and 27 unfilled vacancies in the RJS Examination, 2003 could be re-notified. The Single Judge observed that in future the selection on the post of Munsiff & Judicial Magistrate should be strictly in accordance with the RJS Rules, 1955 and not on the basis of notification dated 10th October, 2002 till the amendment is incorporated after consultation with the High Court.The question for our consideration and determination is : whether 27 seats of Scheduled Caste/Scheduled Tribe categories that remained unfilled in RJS Exam, 2003 due to non-availability of eligible and suitable candidates amongst the Scheduled Caste and Scheduled Tribe candidates were mandatorily required to be filled by following normal procedure i.e., by the general category candidates. 15. Rule 9(1) provides that the reservation of SC and ST candidates shall be at the time of initial appointments only. Such reservation shall be in the proportion of 16% (SC) and 12% (ST) of the vacancies advertised. 15. Rule 9(1) provides that the reservation of SC and ST candidates shall be at the time of initial appointments only. Such reservation shall be in the proportion of 16% (SC) and 12% (ST) of the vacancies advertised. In a particular year, if the eligible and suitable candidates amongst the Scheduled Caste and Scheduled Tribe are not available, the vacancies so reserved for them shall be filled in accordance with the normal procedure and equivalent number of vacancies shall be reserved in a subsequent year. It further provides that unfilled vacancies shall be carried forward to the subsequent three years in total and thereafter such reservation would lapse. There is proviso appended thereto that provides that the total reservation including carried forward vacancies shall not exceed the percentage prescribed for total number of posts in the category for which the direct recruitment is made. Rule 9(3) provides the reservation for women candidates shall be 20% category-wise in direct recruitment. It also provides that in a particular year, if the eligible and suitable women candidates are not available, the vacancies so reserved for them shall be filled in accordance with the normal procedure and such vacancies shall not be carried forward to the subsequent year. The reservation shall be treated as horizontal reservation i.e. the reservation of the women a candidates shall be adjusted proportionately in the respective category to which the woman candidate belongs. 16. Article 16 of the Constitution of India reads thus : "16. Equality of opportunity in matters of public employment.-(l) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. (2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State. (3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office [under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory] prior to such employment or appointment. (3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office [under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory] prior to such employment or appointment. (4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State. (4-A) Nothing in this article shall prevent the State from making any provision for reservation [in Matters of Promotion which consequential seniority to any class] or classes of posts in the services under the state in favour of the Scheduled Castes and the Scheduled Tribes which in the opinion of the state are not adequately represented in the services under the State. [(4-B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filed up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent, reservation on total number of vacancies of that year.] (5) Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination." 17. Clauses (1) and (2) of this Article guarantee equality of opportunities for all citizens in the matter of appointment to an office or by other employment under the State. Clauses (3) to (5) lay down several exceptions to the rule of equal opportunity. Clause (4) of Article 16 is not in the nature of exception to clause (1) but an instance of classification permitted under Clauses (1) & (2). Clauses (3) to (5) lay down several exceptions to the rule of equal opportunity. Clause (4) of Article 16 is not in the nature of exception to clause (1) but an instance of classification permitted under Clauses (1) & (2). That article 16(4) is an enabling provision needs no elaboration; it confers a discretionary power on the State to make reservation of appointments in favour of backward citizens which in its opinion, are not represented either numerically or qualitatively in service of the State. As has been held by the Supreme court in the case of Indra Sawhney & Others v. Union of India & Others ( AIR 1993 SC 477 ) that Article 16(4) confers no constitutional right upon the members of backward classes. Clause (4-B) inserted by the constitution (81st Amendment Act, 2000) is again enabling provisions that authorizes the State to consider the unfilled reserved vacancies as a separate class which shall not be considered together with the vacancies of the year in which they are being filled up to determine the ceiling of 50% of the total vacancies of that year. 18. In the case of Ajit Singh II v. State of Punjab and Others (1997(7) Supreme Court Cases 209) , the Supreme court held that there is no directive or command in article 16(4) or article 16(4-A). Both the articles 16(4) and 16(4-A) do not confer any fundamental rights nor do they impose any constitutional duties but are only in the nature of enabling provisions vesting a discretion in the State to consider providing reservation if the circumstances mentioned in those articles so warrant. It was further held that article 16(4) and 16(4-A) confer a discretion and, therefore, cannot be enforced by issuance of a writ of mandamus to provide reservation or relaxation. 19. The Constitution Bench of the Supreme Court in the case of State of Bihar and Another v. Bal Mukund Sah and Others (2000) 4 SCC 640 ) was concerned with the question as to whether Bihar reservation of vacancies in posts and Services (for scheduled Caste, scheduled tribes and other backward classes) Act, 1991 (Act 1991) covers judicial service of Bihar State, and, if yes, whether the provisions of the said Act especially Section 4 thereof in its application to the subordinate judiciary would be ultra-vires Articles 233 and 234 of the Constitution of India. Dealing with this question, the Supreme Court held that Article 16(4) is an enabling provision regarding reservation of appointments of posts which has to be read subject to Articles 233 and 234 and Governor is required to make rules laying down scheme of reservation for direct recruitment at the base level as well as the apex level of Bihar Judiciary in consultation with High Court under Articles 234 and 233 to give effect to Article 16(4). Section 4 of the Act of 1991, thus, was held to be ultra-vires Articles 233 and 234 of the Constitution of India. The Supreme Court held that while Section 4 can operate in respect of other services of the State not forming part of judiciary, as regards the subordinate judicial service, Section 4 has to be read down holding that it shall not apply for regulating the recruitment and appointments to the cadre of District Judges as well as to the cadre of judiciary subordinate to District Judges. 20. In Union of India v. R. Rajeshwaran and another (2002(1) RSJ 613) , the legal position was reiterated that Article 16(4) of the Constitution confers a discretion and does not create any constitutional duty and obligation. 21. As recently as in the month of October, 2006, the Constitution Bench of the Supreme Court in the case of M. Nagaraj and Others v. Union of India and Others ( (2006) 8 SCC 212 ) inter-alia dealt with the validity, interpretation and implementation of constitution (81st Amendment Act, 2000), whereby clause (4-B) was inserted to Article 16. The Constitution Bench held that Clause (4-B) of Article 16 like Clauses (4) and (4-A) is enabling in nature. Articles 16(4-A) and 16(4-B) form a composite part of the scheme envisaged and fall in the pattern of Article 16(4), and as long as the parameters mentioned in these articles are complied with the States, the provision of reservation cannot be faulted. Both articles 16(4-A) and 16(4-B) were field to be curative in nature and found to have nexus with Articles 17 & 46 of the Constitution. It was observed that Articles 16(4-A) and 16(4-B) are classifications within the principle of equality under Article 16(4). The Supreme Court held that being enabling provision both Articles 16(4-A) and 16(4-B) leave it to the States to provide for reservation. It was observed that Articles 16(4-A) and 16(4-B) are classifications within the principle of equality under Article 16(4). The Supreme Court held that being enabling provision both Articles 16(4-A) and 16(4-B) leave it to the States to provide for reservation. If the appropriate Government enacts a law providing for reservation without keeping in mind the parameters of Article 16(4) and Article 335 then such legislation may expose itself to unconstitutionality. In paragraph 116 of the report, the Supreme Court specifically with reference to Article 16(4-B) held that it seeks to make classification on the basis of the differentia between current vacancies and carry forward vacancies. The Supreme Court observed that in the matter of Article 16(4-B) it must be kept in mind that following the judgment in R.K. Sabharwal v. State of Punjab (1995(2) Supreme Court Cases 745) , the concept of post-based roster was introduced. Consequently, specific slots of OBCs, SCs and STs as well as general category have to be maintained in the roster. For want of a candidate in a particular category, the post may remain unfilled. 22. We deem it proper to reproduce paragraph 116 of the report in M. Nagaraj as it is : "As stated above, Article 14 enables classification. A classification must be founded on intelligible differentia which distinguishes those that are grouped together from others. The differentia must have rational relation to the object sought to be achieved by the law under challenge. In Indra Sawhney an opinion was expressed by this Court vide para 802 that there is no constitutional or legal bar to the making of classification. Article 16(4-B) is also an enabling provision. It seeks to making classification on the basis of the differentia between current vacancies and carry-forward vacancies. In the case of Article 16(4-B) we must keep in mind that following the judgment in R.K. Sabharwal, the concept of post-based roster is introduced. Consequently, specific slots for OBCs, SCs and STS as well as GC have to be maintained in the roster. For want of a candidate in a particular category the post may remain unfilled. Nonetheless, that slots has to be filled only by the specified category. Therefore, by Article 16(4-B) a classification is made between current vacancies on one hand and carry-forward/backlog vacancies on the other hand. For want of a candidate in a particular category the post may remain unfilled. Nonetheless, that slots has to be filled only by the specified category. Therefore, by Article 16(4-B) a classification is made between current vacancies on one hand and carry-forward/backlog vacancies on the other hand. Article 16(4-B) is a direct consequence of the judgment of this Court in R.K. Sabharwal by which the concept of post-based roster is introduced. Therefore, in our view Articles 16(4-A) and 16(4-B) form a composite part of the scheme envisaged. Therefore, in our view Articles 16(4), 16(4-A) and 16(4-B) together form part of the same scheme. As stated above, Articles 16 (4-A) and 16 (4-B) are both inspired by observations of the Supreme Court in Indra Sawhney and R.K. Sabharwal. They have nexus with Articles 17 and 46 of the Constitution. Therefore, we uphold the classification envisaged by Articles 16(4-A) and 16(4-B). The impugned constitutional amendments, therefore, do not obliterate equality." 23. The constitutional validity of Article 16(4-B), thus, was upheld. The classification envisaged by Article 16(4-B) hence got the seal of approval from the Supreme Court. 24. It is worthwhile to notice here the decision of the Supreme Court in the case of Surendra Narain Singh and Other v. State of Bihar and Others ( (1998) 5 SCC 246 ). In that case the issue before the Supreme Court was regarding interpretation of Rule 20 of the Bihar Judicial Service (Recruitment) Rules, 1955, which provided that if the number of qualified candidates belonging to SC/ST did not contain an adequate number of such candidates, the Commission would submit a supplementary list nominating sufficient number of "such candidates" in terms of Rule 20. Rule 20 that was under consideration before the Supreme Court was to the following effect: "20. The Commission shall, while submitting their recommendations under Rule 19, consider the claims of qualified candidates belonging to the Scheduled Castes and Scheduled Tribes. If the list of nomination submitted under Rule 19 does not contain an adequate number of candidates belonging to the Scheduled Castes and Scheduled Tribes who may be appointed to the vacancies reserved for them, the Commission shall submit a supplementary list nominating a sufficient number of such candidates as in their opinion attained the required standard of qualifications and are in all respects suitable for appointment to the service." 25. Since the issue before the Supreme Court related to seniority list in Bihar Judicial Service, Rule 20 of the Bihar Judicial Service was interpreted in that backdrop and it was held that the expression "such candidates" in Rule 20 cannot be given restricted meaning to include only SC/ST candidates in the supplementary list. It was held that the expression "such candidates" in Rule 20 would be referable to the candidates who figure in the merit list prepared by the Commission and out of this merit list a supplementary list of candidates under Rule 20 was required to be prepared who in the opinion of the Commission had attained the requisite standard of qualifications and were in all respects suitable for the appointment. This may even include SC/ST candidates. It was also held that in the absence of specific provisions of the Rules, Government was not required to carry forward reserved points. 26. Reverting now to the question as to whether in RJS exam., 2003, due to non availability of the eligible and suitable candidates amongst Scheduled Castes and Scheduled Tribes to the full extent, was it imperative for the RPSC to fill in the unfilled vacancies reserved for Scheduled Castes and Scheduled Tribes by filling those posts with general category candidates, it is important to notice here that Rule 9(1) does not provide in so many words that in the event of non availability of eligible and suitable candidates amongst the Scheduled castes and scheduled tribes in a particular year, the vacancies so reserved for them shall be filled in with by the candidates of general category. What it provides is that in the event of non availability of eligible and suitable candidates amongst the scheduled castes and scheduled tribes in a particular year, the vacancies so reserved for them shall be filled in accordance with the normal procedure and equivalent number of vacancies shall be reserved in the subsequent year. What is then meant by 'normal procedure'? 27. Mr. What is then meant by 'normal procedure'? 27. Mr. Bajrang Lal Sharma, the senior counsel for the appellants with regard to the interpretation of the expression 'normal procedure' occurring in Rule 9(1) as well as 9(3) heavily relied upon the judgment of the Single Judge of this Court in the case of Richpal Singh & Others v. State of Rajasthan & Others (RLR 1991 (2) 86) and the appeal therefrom, the judgment of which is reported in RLR 1991(1) 612 (State of Rajasthan v. Richpal Singh) , 28. In the case of Richpal Singh, the Single Judge was dealing with the writ petition wherein challenge was made to the order of the State Government dated 16th August, 1989 banning the de-reservation in direct recruitment to vacancies under the Government. That was a case where RPSC issued an advertisement to recruit candidates for appointment as Sub Inspectors Police and Platoon Commanders R.A.C. In all 75 vacancies were advertised, out of which 17 were reserved for scheduled castes and 16 were reserved for scheduled tribes. As against 33 reserved vacancies, 43 vacancies were meant to the candidates belonging to general category. The petitioners therein (five in number) appeared for the said recruitment. They belonged to general category and were placed in a select list down below serial number 42 as general category candidates. In the recruitment process only 15 candidates were selected from amongst the SC and ST candidates and out of these 15 candidates 3 were higher in the merit and rest 12 were lower in the merit. Since only 15 candidates were selected from amongst the SC/ST candidates, the reserved vacancies for which the SC/ST candidates were not available had to be filled by the candidates belonging to general category in terms of Rule 7 of Rajasthan Police Subordinate Service Rules, 1974/Rajasthan Police Subordinate Service Rules, 1989. The note appended to the advertisement provided that in the event of non availability of suitable candidates from amongst the scheduled castes/scheduled tribes, the said posts shall be filled in by normal procedure. Rule 7(4) of the Rajasthan Police Subordinate Sen/ice Rules, 1974 provided thus : "Appointments shall be made strictly in accordance with the rosters prescribed separately for direct recruitment and promotion. Rule 7(4) of the Rajasthan Police Subordinate Sen/ice Rules, 1974 provided thus : "Appointments shall be made strictly in accordance with the rosters prescribed separately for direct recruitment and promotion. In the event of non-availability of the eligible and suitable candidates amongst Scheduled Castes and Scheduled Tribes, as the case may be, in a particular year, the vacancies so reserved for them shall be filled in accordance with the normal procedure and an equivalent number of additional vacancies shall be reserved in the subsequent year. Such of the vacancies which remain so unfilled shall be carried forward to the subsequent three recruitment years in total and thereafter such reservation would lapse : Provided that there shall be no carry forward of the vacancies in posts of class/category/groups of posts in any cadre of Service to which promotions are made on the basis of merit along, under these Rules." 29. Rule 7(4) of Rajasthan Police Subordinate Service Rules, 1989 that was under consideration before the Single Judge read thus : "Appointments shall be made strictly in accordance with the rosters prescribed separately for direct recruitment and promotion. In the event of non-availability of the eligible and suitable candidates amongst Scheduled Castes and Scheduled Tribes, as the case may be, in a particular year, the vacancies so reserved for them shall be filled, in accordance with the normal procedure and an equivalent number of additional vacancies shall be reserved in the subsequent year. Such of the vacancies which remain so unfilled shall be carried forward to the subsequent three recruitment years in total and thereafter such reservation would lapse." 30. The Single Judge held that when the existing rules provided that for want of eligible and suitable candidates from the reserved category the vacancies reserved would be filled in with the normal procedure, the correct course of action was to operate this rule in favour of the candidates belonging to general category whose names were included even below serial number 42 as general category candidates and they should have been considered and given appointment on the basis of their merit. The Single Judge held that denial of such consideration and appointment on the basis of the order dated 16th August, 1989 banning the de-reservation in direct recruitment to vacancies under the Government was unlawful and there was no lawful justification to deny appointments to them on the basis of the order dated 16th August, 1989. The Single Judge held that the candidates who applied and underwent the written or viva voce test acquired a vested right for being considered for selection in accordance with the terms and conditions contained in the advertisement unless the advertisement itself indicated a contrary intention and further that a candidate had a right to be considered in accordance with the terms and conditions set out in the advertisement as his right was created on the date of the publication of the advertisement even if he had not absolute right in the matter. 31. In appeal, the Division Bench held in paragraphs 6 & 8 of the report thus : "6. Sub-rule (4) lays down in that, appointments shall be made strictly in accordance with the rosters prescribed separately for direct recruitment or by promotion. It further prescribes that in the event of non-availability of eligible and suitable candidates amongst the SC/ST, as the case may be, in a particular year, the vacancies so reserved for them, shall be filled in accordance with the normal procedure and an equivalent number of additional vacancies shall be reserved in the subsequent year. It further lays down that such of the vacancies which remain so unfilled shall be carried forwarded to the subsequent three recruitment years in total and thereafter such reservation would lapse. Thus, it can be said that sub-rule (1) and sub-rule (4) of Rule 7 are totally independent and operate in different fields. Sub-rule (4) of Rule 7 lays down, as to how the vacancies have to be filled and deals with several situations that may arise during the process of filling the vacancies/posts/promotions, therefore, it can be no stretch of imagination be said that sub-rule (4) is subject to sub-rule (1) of Rule 7 of the Rules, 1989. Next contention raised by the learned counsel is that second attempt shall be made for recruiting suitable candidates belonging to SC and ST in the same year, if they were not available when the recruitment was held for the first time in the same year. Next contention raised by the learned counsel is that second attempt shall be made for recruiting suitable candidates belonging to SC and ST in the same year, if they were not available when the recruitment was held for the first time in the same year. We have carefully gone through Rule 7 of the Rules, 1989 and it is evident that it does not prohibit the State from holding recruitment for the second attempt in the same year, if the candidates of SC and ST are not available during the first recruitment. Therefore, it can be said that even when issuing order-Annexure-2, the State was well within its rights to make a second attempt of recruitment for SC/ST candidates, Sub-rule (4) of Rule 7 lays down only that, if suitable and eligible amongst SC and ST in a particular year, the vacancies so reserved for them, shall be filled-in, in accordance with the normal procedure and an equivalent number of additional vacancies shall be reserved in the subsequent year. Thus, it clearly speaks for non-availability of suitable and eligible candidates amongst the SC and ST in a particular year. It is only prevailed that the question of filling the vacancies, so reserved for SC and ST candidates in accordance with normal procedure shall arise. We also do not find any force in the contention of the learned counsel that, if Annexure-2 is quashed, it will tantamount to de-reservation of the posts for SC and ST and will be violative of Articles 14 & 16 of the Constitution of India. Quashing of Annexure-2 can in no way amount to de-reservation of the vacancies/posts as the same number of unfilled posts shall be carried forward to the subsequent year as laid down in sub-rule (4) of Rule 7 of the Rules, 1989 itself. Annexure-2 is clearly against the provisions of sub-rule (4) of Rule 7, as it lays down that, if the required number of SC/ST candidates are not available even after second attempt of recruitment, then such available vacancies shall remain unfilled until the next year and these vacancies shall be treated as "backlog" vacancies. Annexure-2 is clearly against the provisions of sub-rule (4) of Rule 7, as it lays down that, if the required number of SC/ST candidates are not available even after second attempt of recruitment, then such available vacancies shall remain unfilled until the next year and these vacancies shall be treated as "backlog" vacancies. In the second para of this Annexure, it has been clearly stated that "it has now been decided that where sufficient candidates belonging to SC/ST are not available to fill-up the vacancies reserved for them indirect recruitment, the vacancies shall not be filled by candidates not belonging to these communities. In order words there will be a ban on de-reservation with immediate effect". Therefore, it is amply clearly that annexure-2 has been issued only with the object to show that what is laid down by sub-rule (4) of Rule 7. In State of Maharashtra v. Jagannath Achyut Karandikar , it was held by the Apex Court that the Government could not restrict the operation of the statutory rules by issuing the executive instructions. It was further observed that executive instructions may supplement, but not supplant the statutory rules. In C.L. Verma v. State of Madhya Pradesh & Another , it was held by the Apex Court that an administrative instruction cannot compete with a statutory rule and if there be contrary provisions in the rule the administrative instructions must give way and the rule shall prevail." "8. We, therefore, do not find any reason to interfere with the order of the learned Single Judge and the Special Appeal is, therefore, dismissed. It is rather strange and unfortunate that State Government issued the order Annexure-2 giving different directions for filling up the vacancies reserved for SC/ST and also mentioned in annexure-2 that suitable amendment shall be made in the Rules, but the same has not yet been done; even though one year has already passed away. It is no use doing lip service with SC/ST persons and it is only necessary that when an order is passed it should be passed in such manner that it can be implemented, as there is rule of law in our country. It is no use doing lip service with SC/ST persons and it is only necessary that when an order is passed it should be passed in such manner that it can be implemented, as there is rule of law in our country. The respondents are, therefore, entitled to be considered and appointed in terms of Rule 7 of the Rules, 1989 in accordance with their merit position against the vacancies which are reserved for SC/ST candidates for which the eligible and suitable candidates have not become available after the recruitment held by R.P.S.C." 32. As would be seen that in the case of Richpal Singh, the controversy centered around the legality of the order issued by the State Government banning the de-reservation in direct recruitment to vacancies under Government and it was found that such ban was illegal and invalid in the light of Rule 7 of the Rajasthan Police Subordinate Sen/ices Rules, 1989. Neither the Single Judge nor the Division Bench in the case of Richpal Singh held that without the procedure of de-reservation being followed, in the event of not availability of eligible and suitable candidates amongst SC/ST in a particular year, the vacancies so reserved should be filled. It could not have been, rather, as the only issue before the Single Judge as well as the Division Bench in the case of Richpal Singli was the validity of the order that imposed ban on the de-reservation in direct recruitment to the vacancies under the Government. 33. The stand of the R.RS.C. in their reply to the writ petition that by virtue of Article 16(4-B), the unfilled vacancies of scheduled castes and scheduled tribes could not at all be filled by general category candidates because these vacancies have now been treated as a separate class of vacancies to be filled up in any succeeding year or years and further stand based on the Notification dated 10th October, 2002 may not be fully justified as has been set up. But the stand of the High Court in opposition to the writ petition has been clear and unambiguous that unless the unfilled vacancies of SC and ST category were de-reserved by the State Government in consultation with the High Court, the rule of normal procedure would not operate. But the stand of the High Court in opposition to the writ petition has been clear and unambiguous that unless the unfilled vacancies of SC and ST category were de-reserved by the State Government in consultation with the High Court, the rule of normal procedure would not operate. This is the stand of the High Court on administrative side and this stand appears to have not been founded fault with by the High Court as well as the Supreme Court on judicial side. 34. The Supreme Court in the case of Rajasthan Public Service Commission and Another v. Harish Kumar Purohit and Others (2003) 5 SCC 480 ) was concerned with a case wherein on 1.6.2001 an advertisement to recruit 116 Munsif Magistrates was issued by the RPSC. Out of the 116 posts of Munsiff Magistrates, 59, 24, 19 and 14 were earmarked for general, OBC, SC and ST categories respectively. Though after the written examination, the RPSC as per the prescribed norms, called 302 candidates for interview, there was shortfall on account of non availability of candidates in SC and ST categories. In general category, though the posts were 59, 189 candidates were called for interview. The aggrieved petitioners filed writ petition before the seat at Jodhpur of this Court inter-alia for direction for filling the unfilled reserved vacancies adopting the general procedure. The Division Bench directed the RPSC to call not less than 210 candidates from the general category for interview instead of 189 on the assumption that there were 70 pots in general category (59 as originally fixed and 11 on account of non availability of candidates in SC and ST categories). RPSC challenged the order of the High Court before the Supreme court and in para 10 of its order, the Supreme Court observed thus ; "Once it has been accepted by the High Court that it was open to the Government to decide as to whether the posts are to be de-reserved or carry-forwarded, there was no basis to proceed on the assumption that they would be de-reserved, thereby making the number of posts available for the General category as 70. At the completion of the written examinations, there were only 59 posts available for the General category. At the completion of the written examinations, there were only 59 posts available for the General category. On a hypothetical basis that there is a possibility to increase the number of posts in the General category, candidates numbering three times the number of posts including assumed inclusions had to be called, the High Court gave the directions which defies logic." 35. From the aforesaid judgment of the Supreme Court in the case of Harish Kumar Purohit, it can reasonably be held that as per the provisions contained in Rule 9 of RJS Rules, 1955, in the event of non availability of the suitable candidates in scheduled caste and scheduled tribe categories, filling up of those unfilled posts by following 'normal procedure' would mean that it was open to the Government in consultation with the High Court to decide as to whether the posts were to be de-reserved or carry forwarded and then proceed accordingly. 36. A brief order of this Court, in the case of Hari Om Avasthi and Others v. State of Rajasthan & Others (D.B. Civil Writ Petition No. 4130/2003) decided on 25th July, 2003 may also be of some relevance. The said order reads thus : "Heard On May 17, 2001, 116 posts were advertised for recruitment to Rajasthan Judicial Service. 19 posts of Scheduled Castes and Scheduled Tribes remained unfilled. Since the posts remained unfilled, they were carried forward for being filled up in the next selection by Scheduled Castes and Scheduled Tribes categories. The learned counsel for the petitioners submits that the 19 vacancies, which were left unfilled on account of non-availability of Scheduled Caste and Scheduled Tribe candidates ought to have been made available to general category candidates and if that was done, the names of the petitioners would have found place in the select list. The submission does not appeal to us. The aforesaid vacancies, as already noted, are meant only for Scheduled Caste and Scheduled Tribe candidates and due to their non-availability, had to be carried toward for the next selection in consonance with the prescribed procedure. It may be pointed out that the selections to the posts of Rajasthan Judicial Service were held in the year 2001. The instant writ petition was filed after an inordinate delay of more than one year. In the circumstances, therefore, the petition fails and is hereby dismissed." 37. It may be pointed out that the selections to the posts of Rajasthan Judicial Service were held in the year 2001. The instant writ petition was filed after an inordinate delay of more than one year. In the circumstances, therefore, the petition fails and is hereby dismissed." 37. What can be inferred from the said order is that in the matter of recruitment to Rajasthan Judicial Sen/ice under the RJS Rules, 1955, the view of the High Court on judicial side has been that unfilled vacancies on account of non availability of scheduled caste and scheduled tribe candidates must be carried toward for the next selection in accordance with the prescribed procedure. 38. Article 233 of the Constitution of India relates to the recruitment of District Judges while Article 234 relates to the recruitment of Members of Judicial Service of the State other than District Judges. Article 236 provides in unmistakable terms that recruitment of members of the judicial service of the State other than District Judges shall be made by the Governor of the State in accordance with the Rules made by him in that behalf after consultation with the High Court exercising jurisdiction in relation to such State. The Constitution Bench of the Supreme court in the case of Bal Mukund Sah held that recruitment to judicial since has been excepted from the purview of Article 309 by the overriding provisions of Article 233 to 235. The recommendation of the High Court under Article 234 is sine-qua-non for direct recruitment of judicial officers at the base level of the State Judicial Service. The High Court's role under Article 234 in that context is meaningful and not mere formality. Seen thus, the view of the High Court on the administrative side that in the event of non availability of suitable candidates for the recruitment in the judicial service in the SC and ST categories, the normal procedure provided under Rule 9 of RJS Rules, 1955 would mean first de-reservation by the State Government in consultation with the High Court cannot be said to be not in consonance with the scheme of Rule 9. 39. 39. As a matter of fact it appears from the reply of the High Court that the Full Court of the High Court, on administrative side took the decision on 18th February, 2005 that unfilled vacancies of RJS exam, 2003 and RJS exam, 2004 may be advertised. The High Court on administrative side on 17th March, 2005 requested the State Government to request the RPSC for advertising 58 vacancies and also 27 unfilled reserved vacancies carried forward from RJS exam, 2003. Even for want of any amendment in the RJS Rules, 1955, it cannot be said that the administrative decision of the Full Court of the High Court on 18th February, 2005 for advertising the vacancies in RJS cadre to the unfilled SC/ST seats of the year 2003 and 2004 is illegal. The legality of the decision of the Full Court has not been put in issue at all. 40. There cannot be any doubt about the legal position that where selection process is initiated by issuing an advertisement, inviting applications, the selection normally should be regulated by the Rule or order then existing. This is what has been held by the Supreme court in the case of N.T. Devin Katti and Others v. Karnataka Public Service Commission [ (1990) 3 SCC 157 ] and also the Single Judge and Division Bench judgment in the case of Richpal Singh. However, as noticed above, the view of the High Court on administrative side that under the 'normal procedure' for filling the unfilled posts of Scheduled Caste and Scheduled Tribe categories, these posts were first to be de-reserved by the State Government in consultation with the High Court, is not a departure to that legal position. 41. On behalf of the appellants, it was contended that Public Service Commission is a creature of the Constitution and they must scrupulously follow the statutory rules during recruitment and in making appointment. Any procedure devised by Public Service Commission must conform to the statutory rules. In this connection reliance was placed on the judgments of the Supreme court in the case of Inder Prakash Gupta v. State of Jammu & Kashmir & Others [ (2004) 6 SCC 786 ) and State of Punjab & Others v. Manjit Singh & Others [ (2003) 11 SCC 559 ). In this connection reliance was placed on the judgments of the Supreme court in the case of Inder Prakash Gupta v. State of Jammu & Kashmir & Others [ (2004) 6 SCC 786 ) and State of Punjab & Others v. Manjit Singh & Others [ (2003) 11 SCC 559 ). Insofar as the selection process initiated by the RPSC for recruitment of 108 posts of Judicial Officers in all in the State of Rajasthan pursuant to the advertisement dated 4th August, 2003 and its completion thereof by RPSC does not appear to us to have been done by the not following the provisions contained in RJS Rules nor any procedure can be said to have been devised by the RPSC not in conformity with these Rules. 42. The senior counsel and the counsel for the appellants strenuously urged that the Single Judge accepted their contention regarding construction of Rule 9 and filling of the unfilled posts in the category of scheduled castes and scheduled tribe candidates pursuant to RJS exam, 2003 conducted by RPSC and a clear observation was made by him that recruitment to the Rajasthan Judicial Service has to be in accord and conformity with RJS Rules, 1955 but he denied the relief to the appellants (petitioners) on the ground that the selection process was over and the appointments have been made and unfilled 27 vacancies from SC and ST categories were going to be re-advertised and he did not want to unsettle the settled position which was erroneous. It was submitted that by virtue of the interim order, the three posts for the appellants in the present group of three appeals have been kept vacant and, therefore, there was no question of unsettling the settled position. It was also submitted that the RPSC or the High Court have not preferred any appeal challenging the findings of the Single Judge concerning Rule 9 of RJS Rules, 1955 and, therefore, the appeals must be allowed and the judgment of the Single Judge must be set-aside to that extent and the relief must be granted to the appellants. 43. We are afraid, the contention is wholly misconceived. 43. We are afraid, the contention is wholly misconceived. Upon careful examination of entire judgment of the Single Judge we do not find that any firm finding has been given that expression "normal procedure" occurring in Rule 9 does not mean that in the event of suitable candidates of SC and ST categories having not been found, it would not be necessary to first have those seats de-reserved by the State Government in consultation with the High Court; The judgment of the Single Judge is not against the Public Service Commission or the High Court ; rather the writ petitions filed by the appellants have been dismissed and, therefore, there was no occasion for the RPSC or the High Court to challenge the said judgment by filing any appeal. The counsel for the RPSC and the High Court sought to justify the ultimate conclusion of the Single Judge in dismissing the writ petitions with their respective stand which they could have always done without any legal impediment. 44. In what we have discussed above, we find that the stand of the High Court with regard to the 'normal procedure' spoken of in Rule 9 of RJS Rules, 1955 would mean that in the event of the suitable candidates in SC and ST categories having not been found in the RJS examination conducted by RPSC, such vacancies have to be de-reserved by the State Government in consultation with the High Court and then proceeded with accordingly is neither illegal nor unjustified. The State Government has not de-reserved the unfilled posts in the category of scheduled caste and scheduled tribe in RJS exam, 2003 nor the High Court recommended to the State Government for de-reservation of such posts. Rather the High Court in its administrative decision taken on 18th February, 2005 decided to re-advertise the unfilled posts of the scheduled caste and scheduled tribe categories in RJS exam, 2003 in the vacancies of the year 2005 and the State Government was requested to request the RPSC accordingly and in fact in RJS exam, 2005 the unfilled vacancies of RJS exam, 2003 and RJS exam, 2004 in the categories of scheduled caste and scheduled tribe were re-advertised. Article 16(4-B) as already noticed by us, is an enabling provision and does not by itself create any right or obligation in the absence of any law made to that effect but if the High Court in the light of the constitutional scheme provided in Article 16(4-B) and for want of anything contrary to that effect in the RJS Rules, 1955, decided to re-advertise the unfilled posts in the category of SC and ST in RJS exam, 2003 and 2004 for the RJS exam, 2005, such administrative decision of the High Court cannot be said to suffer from any legal flaw or inconsistent with Rule 9 of RJS Rules, 1955. 45. In the appeal of Miss Suman Rao besides the aforesaid controversy, the further issue is that she secured 175 marks (154 marks in written and 21 marks in interview and that as per her submission, the last general woman candidate who has been selected on the post of Munsiff and Judicial Magistrate has also secured 175 marks. Both are in the category of general woman candidate but no reason has been assigned to her as to why she has not been selected though she has secured marks equal to the last selected candidate. 46. According to the RPSC, in case of equal marks in written as well interview, the candidate more in age is placed higher in merit. The RPSC has stated that they have adopted the principle of general suitability, according to which the petitioner (appellant herein) could find place in the reserved list at serial number 13 only. 47. The counsel for the RPSC submitted that the last selected woman category candidate and the appellant secured same marks in written examination as well as interview but in view of the decision taken by the Commission in its meeting held on 19th January, 1998 that in case of aggregate marks and interview marks being same, the candidate with earlier date of birth will precede in the merit list was adopted and the last selected candidate was given appointment as her date of birth was earlier to that of the appellant. 48. The extract of the proceedings of the Commission's meeting held on 19th January, 1998 handed in by the counsel for the RPSC reads thus : "Extract of the proceedings of Commission's meeting held on 19.1.1998. 48. The extract of the proceedings of the Commission's meeting held on 19th January, 1998 handed in by the counsel for the RPSC reads thus : "Extract of the proceedings of Commission's meeting held on 19.1.1998. The matter was discussed and the commission decided to continue with the existing criteria of giving preference to higher marks obtained in the interview for adjudging general suitability in case aggregate marks of the candidates in written exam as well as interview are same. The Commission also concurred on the following criteria for the same purpose: (i) In case of aggregate marks and interview marks also being same, the candidate with earlier date of birth will precede in the merit list. (ii) Aggregate marks, interview marks and age also being same, candidate with higher educational qualification will precede in the merit list. (iii) Educational qualification also being same along with all total marks and age, candidate with higher marks attained in the educational qualification will precede in the merit list. (iv) In case of all above conditions being same the candidate having attained educational qualification earlier will precede in the merit list." 49. The case of the appellant-Suman Rao is extremely hard as she secured the same marks in written examination as well as in interview as that of the last selected candidate but missed the bus because of the decision taken by the Commission on 19th January, 1998 that in case of aggregate marks and interview marks also being same, the candidate with earlier date of birth will precede in the merit list. There is no challenge to the legality and validity of the decision of the Commission taken in its meeting on 19th January, 1998 as noticed above. Thus nothing can be done in the appeal of Suman Rao as well. 50. Upshot of the aforesaid discussion is that these special appeals have to be dismissed and are dismissed with no order as to costs.Special Appeal dismissed - Judgment of single judge sustained. *******