ORDER R.K. Merathia, J. 1. Mr. Anwar, learned senior counsel appearing for the petitioner submitted as follows. The petitioner should be considered for appointment on the post of Associate Professor in Pathology in Rajendra Institute of Medical Sciences (RIMS for short) in other backward class (OBC category). Though the advertisement for filing up four such posts, was not clear about the reserved category, but as the reservation rules are applicable to RIMS, one post was of OBC category. Further 10 marks were wrongly reduced for absenting in two MBBS final examination as "being" absent is different from "failure" in. examination. However, the constitution of selection committee was not challenged. 2. Mr. R. Krishna, appearing for the respondents, submitted as follows. According to the selection criteria, 10 marks were allocated only for regularly passed students but five marks were deducted for each failure or of non- appearance in the regular examination and as the petitioner failed to appear in the examination of his batch twice, therefore non-appearance in the examination was considered equivalent to failure. The four posts advertised were of general category. Though the petitioner and one Dr. (Mrs.) Mukta Kumar submitted OBC Certificates also, but they were considered under general category. The Selection Committee did not find the petitioner fit for the said post. 3. It is further said that during the said process of appointment, it was decided that the teachers who are already working as Associate Professor, should be absorbed first and accordingly four doctors namely Dr. B.K. Agrawal, Dr. Manoj Kumar Rai, Dr. Trilochan Singh and Dr. Ramesh Kumar Srivastava were to be absorbed on the post of Associate Professor, but as Dr. B.K. Agrawal stood superannuated on 30.9.2002 therefore fourth post was filled up by Dr. ?B.C. Adhikari, who secured highest marks in the selection process. Thus, it cannot be said that after advertisement was made for filling up the posts, the respondents could not take a decision to fill up the posts by absorption. Such action is not arbitrary. After issuance of the said advertisement, it was brought to the notice by the Secretary, Department of Health that total sanctioned posts of Associate Professor in the department of Pathology are 11 and therefore the post of OBC shall be filled up in accordance with law through a proper advertisement, if necessary. 4. Such action is not arbitrary. After issuance of the said advertisement, it was brought to the notice by the Secretary, Department of Health that total sanctioned posts of Associate Professor in the department of Pathology are 11 and therefore the post of OBC shall be filled up in accordance with law through a proper advertisement, if necessary. 4. Thus, the question is whether filling up four posts, in question, is illegal and arbitrary or not. It is true that the advertisement for filling up the four posts in question, was not clear about the reserved categories and it was issued in ignorance of the total posts sanctioned/available, but it cannot be said that during such process the RIMS could not decide to fill up the posts first by appointing three teachers by absorption who were already working as Associate Professor. Even if it is accepted that instead of 41 marks, petitioner should have been given 51 marks, Dr. B.C. Adhikari secured 53 marks and therefore it cannot be said that the respondents were not justified in appointing him against the fourth vacancy. 5. However, I wish to observe that though, fixing selection criteria is within the domain of RIMS, in further it may reconsider whether "failure" of a candidate and being "absent" in examination should be treated at par or not, as prima facie they appear to be different. In Shankarsan Dash v. Union of India , it was said that the candidate included in merit list has no right to appointment even if vacancy exists and that it is not necessary to fill up the vacancies even if they are not required to be filled up. In State of Rajasthan v. Jagdish Chopra , it has been said that the ordinary period of validity of select list should be one year. Thus, the impugned action cannot be held to be illegal, arbitrary or malafide and therefore I am not inclined to disturb the filling up of the vacancies in question. 6. With these findings and observations, this writ petition is dismissed. However, there will be no order as to costs.