JUDGMENT By the Court.—List revised. None present on behalf of the respondents. 2. This case has a chequered history. The selection process for Class III employees started with an advertisement of 13 vacancies to be filled up under the provisions of Rule 23 (8) of the U.P. Subordinate Officers Ministerial Staff (Direct Recruitment) Rules, 1985 as amended by the 1st Amendment Rules, 1986 (hereinafter called the Rules, 1986). 3. While preparing the select list as per the requirement of the said Rules 1985, wait list containing names equivalent to 25 per cent of the total number of vacancies advertised had to be prepared. Select list was prepared which was valid for a period of one year, contained 13 names in the merit list and five names in the wait list. The respondents in the appeal had been placed at Serial Nos. 4 and 5 of the wait list. All the 13 vacancies which had been advertised had been filled up from the merit list so prepared without resorting to the wait list. 4. Subsequent thereto, three vacancies arose, which were filled up from the persons at Serial Nos. 1 to 3 of the wait list. The State Authorities cancelled the remaining wait list as it contained names of more than 25 per cent vacancies. As two more vacancies occurred, subsequently fresh advertisement was issued on 24.4.1993 and the select list was prepared and the said vacancies were filled up from the said selection. The question arose as to whether the said advertisement could have been published for the two vacancies which came into existence subsequent to the vacancies advertised earlier for which the merit list had been prepared or the respondents were to offer appointment to the petitioner as per the wait list as the period of one year from its notification had not expired. 5. Respondents filed Writ Petition No. 28731 of 1993, challenging the said order cancelling the unexhausted wait list on the ground that as the select list was valid for a period of one year from the date of its commencement in existence and two vacancies had occurred during its lifetime, the vacancies ought to have been filled up from the said wait list, rather than inviting fresh applications by issuing fresh advertisement. The State respondent contested the writ petition on the ground that as per the Rules 1985 only names of 25 per cent of the total vacancies advertised could be placed in the wait list and in view of the fact that only 13 vacancies had been advertised, the wait list could have only 3 and not 5 names. Names of the present respondents could not have been included in the wait list. 6. The writ petition has been allowed on the ground that after the selection had been made on all the 13 posts advertised the wait list would still remain valid for 1 year. The two vacancies which occurred because of the retirement of the employees respondent-petitioner ought to have been offered the appointment against the said newly caused vacancies as the wait list was alive. 7. Against the said judgment and order dated 27.11.1996, the present appellant State of U.P. approached the Hon’ble Supreme Court by filing Special Leave Petition. However, the said Special Leave Petition was disposed of vide judgment and order dated 14.7.1997 in view of the fact that a statutory remedy of appeal as provided under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952 had not been exhausted. The appellant was given liberty to approach this Court. 8. Accordingly, this Special Appeal was filed by the State with an application for condonation of delay. The Court vide order dated 17.12.1997, condoned the delay imposing a cost of Rs. 2,000/- on the State. As during the pendency of the appeal the appointments were not offered, respondents in pursuance of the judgment and order under challenge filed Contempt Petition. Consequent thereto, they had been offered appointment vide letter dated 26.11.1997 with a condition that their appointments shall be subject to the decision of the Special Appeal. 9. Inspite of the fact that list has been revised, none is present to oppose the appeal. 10. The question for consideration is as to whether it is permissible for an employer to fill any subsequent vacancy caused over and above the number of vacancies advertised and in case the number of vacancies advertised stand filled whether the selection process comes to an end, and stands exhausted. In such an eventuality there remains no sanctity to the wait list. In such an eventuality there remains no sanctity to the wait list. As to whether it is permissible for the employer to fill up the future vacancies which came into existence subsequent to the conclusion of the selection process from the wait list so prepared. 11. The issue involved herein is no more res integra. It is a settled legal proposition that authority cannot fill up vacancies over and above the number of vacancies advertised as it would amount to filling up the vacancies which have occurred in future and that would be violative of the fundamental rights of the candidates who become eligible subsequent to the advertisement, as held by the Hon’ble Supreme Court in Union of India and others v. Ishwar Singh Khatri and others, 1992 Suppl. (3) SCC 84; Gujarat State Deputy Executive Engineers’ Association v. State of Gujarat and others, 1994 Supp. 2 SCC 591; State of Bihar and others v. The Secretariat, Assistant S.E. Union, 1986 and others, AIR 1994 SC 736 ; Prem Singh and others v. Haryana State Electricity Board and others, (1996) 4 SCC 319 ; Ashok Kumar and others v. Chairman, Banking Service Recruitment Board and others, AIR 1996 SC 1145 ; and Kamlesh Kumar Sharma v. Yogesh Kumar Gupta and others, (1998) 3 SCC 45 . 12. The Hon’ble Supreme Court in Government of Orissa v. Har Prasad Das, AIR 1998 SC 375 has held as under : “Whether to fill up a post or not is a policy decision and unless it is shown to 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 appointments on the efficiency ground of public administration went beyond its jurisdiction.” 13. Similarly, the Apex Court in State of Haryana v. Piara Singh, (1992) 4 SCC 118 has taken the view that creation and abolition of post and filling up the same is the prerogative of the Executive. 14. In Gujarat State Deputy Executive Engineer’s Association v. State of Gujarat and others, 1994 Suppl. Similarly, the Apex Court in State of Haryana v. Piara Singh, (1992) 4 SCC 118 has taken the view that creation and abolition of post and filling up the same is the prerogative of the Executive. 14. In Gujarat State Deputy Executive Engineer’s Association v. State of Gujarat and others, 1994 Suppl. (2) SCC 591, the Hon’ble Supreme Court quashed the appointments made over and above the vacancies advertised holding that such an action was neither permissible nor desirable for the reason that it would amount to ‘improper exercise of power’ and only in a rare and exceptional circumstance and in emergent situation, this rule can be deviated from and it can be done only after adopting policy decision based on some rational as the authority cannot fill up more posts than advertised as a matter of course. This view has consistently been reiterated by the Apex Court as is evident from the following judgments. 15. In Prem Singh and others v. Haryana State Electricity Board and others, 1996 (4) SCC 319 , the Apex Court observed as under : “.........The selection process by way of requisition and advertisement can be started from clear vacancies and also for anticipated vacancies but not for future vacancies. If the requisition and advertisement are for a certain number of posts only, the State cannot make more appointments than the number of posts advertised........... State can deviate from the advertisement and make appointments on the posts falling vacant thereafter in exceptional circumstances only or in an emergent situation and that too by taking a policy decision in that behalf.” (Emphasis added). 16. In Union of India and others v. Ishwar Singh Khatri and others, 1992 Suppl. (3) SCC 84, the Court held that selected candidate have right to appointment only against ‘vacancies notified’ and that too during the life of the select list as the panel of selected candidate cannot be valid for an indefinite period. Moreover, empanelled candidates in any event cannot have a right against future vacancies. In State of Bihar and others v. The Secretariat, Assistant S.E. Union, 1986 and others, AIR 1994 SC 736 , the Apex Court held that a person who is selected does not, on account of being empanelled alone, acquire any indefeasible right of appointment. Moreover, empanelled candidates in any event cannot have a right against future vacancies. In State of Bihar and others v. The Secretariat, Assistant S.E. Union, 1986 and others, AIR 1994 SC 736 , the Apex Court held that a person who is selected does not, on account of being empanelled alone, acquire any indefeasible right of appointment. Empanelment is at the best a condition of eligibility for purposes of appointment, and by itself does not amount to selection and nor does it create a vested right to be appointed unless the relevant service rules provide to the contrary. In the said case, as the selection process was completed in five years after the publication of the advertisement, a contention was raised that the empanelled candidates deserved to be appointed over and above the vacancies notified. The Hon’ble Supreme Court rejected the contention observing that it may not be justified as offering the posts in such a manner would adversely prejudice the cause of those candidates who achieved eligibility in the meantime. 17. In Surinder Singh and others v. State of Punjab and others, AIR 1998 SC 18 , while dealing with a similar issue, the Apex Court held as under : “A wait list, prepared in an examination conducted by the Commission does not furnish a source of recruitment. It is operative only for the contingency that if any of the selected candidate does not join then the persons from the wait list may be pushed up and be appointed in the vacancy so caused or if there is some extreme exigency the Government may as a matter of policy decision pick up persons in order of merit from the wait list. But the view taken by the High Court that since the vacancies have not been worked out properly, therefore, the candidates from the wait list were liable to be appointed does not appear to be sound. This practice, may result in depriving those candidates who became eligible for competing for the vacancies available in future. If the wait list in one examination was to operate as infinite stock for appointment, there is danger that the State may resort to the device of not holding the examination for years together and pick up candidates from the wait list as and when required. If the wait list in one examination was to operate as infinite stock for appointment, there is danger that the State may resort to the device of not holding the examination for years together and pick up candidates from the wait list as and when required. The Constitutional discipline requires that this Court should not permit such improper exercise of power which may result in creating a vested interest and perpetuating the wait list for the candidates of one examination at the cost of entire set of fresh candidates either from the open or even from service.....Exercise of such power has to be tested on the touch-stone of reasonableness.....It is not a matter of course that the authority can fill up more posts than advertised.” (Emphasis added). 18. The said judgment has been approved by the Apex Court in Kamlesh Kumar Sharma v. Yogesh Kumar Gupta and others, (1998) 3 SCC 45 . 19. In view of the above, the law can be summarised that appointments cannot be made over and above the number of vacancies advertised as it would adversely affect and violate the fundamental rights of those who became eligible subsequent to the date of advertisement in pursuance of which the select list is prepared. 20. In the instant case, once the 13 advertised vacancies had been filled up, the selection process stood exhausted. Question of filling up of any vacancy could not arise. The persons whose names stood at Serial Nos. 1, 2 and 3 in the wait list could not have been offered the appointment. However, their appointments are not under challenge, so we are not in a position to make any further observation in this respect. The name of the respondents-petitioners stood at Serial Nos. 4 and 5 of the wait list which was over and above the 25 per cent limit fixed by the statutory rules. Their names were not required to be included in the wait list. They had no right to seek appointment under any law. The subsequent two vacancies had correctly been filled up by initiating fresh selection process and the respondents-petitioners can have no grudge against the same. No fault can be found with the order cancelling the unexhausted wait list containing the names of the said respondents-petitioners. 21. They had no right to seek appointment under any law. The subsequent two vacancies had correctly been filled up by initiating fresh selection process and the respondents-petitioners can have no grudge against the same. No fault can be found with the order cancelling the unexhausted wait list containing the names of the said respondents-petitioners. 21. Undoubtedly, all these issues have not been considered by the learned Single Judge and it is quite possible that the same might not have been agitated before the Writ Court, but appeal is a continuity of the suit so there is no bar in law to consider such issues. (Vide Bongaigaon Refinery and Petrochemicals Ltd. and others v. Girish Chandra Sharma, (2007) 7 SCC 206 ). More so, it is settled legal proposition that a legal issue which does not require any investigation of fact can be raised at any stage of the proceedings. 22. In view of the above, the appeal succeeds and is allowed. The impugned judgment and order of the learned Single Judge dated 27.11.1996 is hereby set-aside. 23. The State is requested to take action in accordance with law. ————