JUDGMENT : B.S. Chauhan, C.J. - This writ petition was filed on 3.4.2001 seeking a direction to the opposite parties to allow the Petitioner to continue as Candidate Peon and to consider his case for regular appointment on the post of Process Server whenever vacancy occurs in future. 2. The facts and circumstances giving rise to the case are that Petitioner applied for the post of Candidate Peon and in pursuance of the intimation dated 27.12.1993 issued by the Registrar, Civil Courts, Kalahandi-Nuapada, opposite party No. 2, the Petitioner appeared in the written test held for the said post. After having been duly selected, the Petitioner vide letter dated 2.2.1994 was directed to appear before the District Judge, Kalahandi, Nuapada, opposite party No. 1 on 11.2.1994 for interview (Annex.-1). Petitioner also passed the medical test and submitted two character certificates for being enrolled as a Candidate Peon. Petitioner was enrolled as a Candidate Peon vide order dated 21.2.1994 and attached vide order dated 26.4.1994 (Annex.-3) to the office of Civil Judge (Sr. Division), Dharamgarh. Petitioner was relieved from Bhawanipatna and was directed to join at Dharamgarh on 1.5.1994 and he joined therein. Petitioner had not been permitted to work as his name has been removed from the list of candidate peons vide order dated 10.6.1994 He made several representations to continue as Candidate Peon, but in vein. Other similarly situated persons have been continuing as Candidate Peons. Hence this writ petition. 3. Sri D.K. Misra, learned Counsel for the Petitioner has submitted that Petitioner has been discriminated by removing his name from the list of Candidate Peons, while other similarly situated persons have been retained and subsequently some of them have been appointed as Process Server in substantive capacity. Petitioner made several representations but the same have not been decided by the learned District Judge. Thus, he is entitled for the relief sought. 4. On the contrary, Mr. P. Panda, learned Addl. Standing Counsel has opposed the petition contending that the name of the Petitioner has been removed the list of Candidate Peons in June 1.994, but he filed the petition after expiry of seven years in 2001. Thus there has been inordinate delay on his part in filing the petition. The petition is liable to be dismissed on that ground alone. Standing Counsel has opposed the petition contending that the name of the Petitioner has been removed the list of Candidate Peons in June 1.994, but he filed the petition after expiry of seven years in 2001. Thus there has been inordinate delay on his part in filing the petition. The petition is liable to be dismissed on that ground alone. It has further been submitted that during the pendency of the writ petition, State Government has framed the Orissa District and Subordinate Courts' Non-Judicial Staff Services (Method of Recruitment and Conditions of Service) Rules, 2008 (hereinafter called the 'the Rules, 2008'), which are in force and the Rules, 2008 provide that 50% of the posts of Process Servers shall be made by promotion on the basis of Merit-cum-Seniority from amongst Peons/orderlies and other Group-'D' employees who possess the requisite qualification and the rest 50% of the posts shall be made by direct recruitment from open market who have had minimum VIII standard or equivalent qualification. In view thereof, the question of filling filing up of the vacancies under Clause 75 of the General Rules and Circular Orders (Civil) (hereinafter called the 'GR & CO') does not arise as the Rules, 2008 provide for making appointment of Process Server from the Peons/Orderlies and other Group-'D'. Petitioner, admittedly, does not fall in either of those categories. It has been contended that the GR & CO is merely the Executive Instructions and the same cannot supersede the statutory rules framed under the proviso to Article 309 of the Constitution of India. Therefore, this petition is devoid of any merit and is liable to be dismissed. 5. However, taking into consideration the submissions made by Sri Misra that the Petitioner has been deprived from regularisation as a Process Server as per the provisions of the GR&CO, we have examined the GR&CO which confer certain right of appointment on a person who had been appointed without advertisement, without there being any vacancy in existence and just to be considered against a future vacancy in substantive capacity as process server. 6. Clauses 71, 73 and 75 of the GR &CO read as under: 71. Candidate Peons - The Nazir shall keep a register of candidates for filling up leave and permanent vacancies. 6. Clauses 71, 73 and 75 of the GR &CO read as under: 71. Candidate Peons - The Nazir shall keep a register of candidates for filling up leave and permanent vacancies. These candidates will be enrolled under orders of the Judge-in-charge of Nazarat and their number shall not exceed 15 per cent of the total strength of permanent peons employed at any station subject to the minimum of one candidate. 72. xxx xxx xxx 73. Appointment of process-servers- No process-server shall be appointed except from these candidates. 74. xxx xxx xxx 75. Vacancies have to be filled in-Vacancies occurring at any Judgeship shall ordinarily be filled up by promotion and appointment respectively of peons and enrolled candidates attached to that Judgeship. 7. The aforesaid GR&CO are not statutory in nature and do not provide that Candidate Peon shall be enrolled after facing regular selection after advertisement of the vacancies. However, once a person is enrolled as a Candidate Peon, he becomes entitled for being appointed as Process Server in substantive capacity. According to Clause 75 thereof, whenever vacancy on the post of Process Server occurs in future in the concerned District Judgeship, the same shall be filled up from the enrolled Candidate Peons attached to that Judgeship. 8. It is settled legal proposition that for every post, there has to be advertisement and the post should be filled up by following the procedure which is in conformity with the requirements of Article 14 and 16 of the Constitution. The Rules do not provide for any advertisement or any mode of selection for enrollment of Candidate Peons. However, the Rules make it mandatory that whenever any vacancy occurs on the post of Process server, the same shall be filled up from the list of Candidate Peons of the District concerned. Such procedure amounts to filling up of the future vacancy, i.e., which occurs subsequent to the enrolment of candidate peons. Appointment to any public post is to be made by advertising the vacancy and any appointment made without doing so violates the mandates of Articles 14 and 16 of the Constitution of India as it deprives the candidates who are eligible for the post, from being considered. 9. In Delhi Development Horticulture Employees' Union Vs. Appointment to any public post is to be made by advertising the vacancy and any appointment made without doing so violates the mandates of Articles 14 and 16 of the Constitution of India as it deprives the candidates who are eligible for the post, from being considered. 9. In Delhi Development Horticulture Employees' Union Vs. Delhi Administration, Delhi and others the Hon'ble Apex Court held that calling the names from Employment Exchange may curb to certain extent the menace of nepotism and corruption in public employment. 10. In State of Haryana and others Vs. Piara Singh and others etc. etc. the Hon'ble Supreme Court held as under: Thirdly, even where an ad hoc or temporary employment is necessitated on account of the exigencies of administration, he should ordinarily be drawn from the employment exchange unless it cannot brook delay in which case the pressing cause must be stated on the file. If no candidate is available or is not sponsored by the employment exchange, some appropriate method consistent with the requirements of Article 16 should be followed. In other words there must be a notice published in the appropriate manner calling for applications and all those who apply in response thereto should be considered fairly. 11. In Excise Superintendent Malkapatnam, Krishna District, A.P. Vs. K.B.N. Visweshwara Rao and Others, the larger Bench of the Hon'ble Supreme Court reconsidered its earlier judgment in Union of India (UOI) and Others Vs. N. Hargopal and Others wherein it had been held that insistence of requisition of names from employment exchanges advances rather than restricts the rights guaranteed by Articles 14 and 16 of the Constitution, and held that any appointment even on temporary or ad hoc basis without inviting application is in violation of the provisions of Articles 14 and 16 of the Constitution and even if the names of candidates are requisitioned from Employment Exchange, in addition thereto it is mandatory on the part of the employer to invite applications from all eligible candidates from open market as merely calling the names from the Employment Exchange does not meet the requirement of the said Articles of the Constitution. Same view has been reiterated in Arun Tewari and Ors. v. Zila Manaswavi Shikshak Sangh and Ors. AIR 1998 SC 331 ; Kishore K. Pati v. District Inspector of Schools, Midnapur and Ors. (2000) 9 SCC 405 and Subhash Chand Dhrupta and Another Vs. Same view has been reiterated in Arun Tewari and Ors. v. Zila Manaswavi Shikshak Sangh and Ors. AIR 1998 SC 331 ; Kishore K. Pati v. District Inspector of Schools, Midnapur and Ors. (2000) 9 SCC 405 and Subhash Chand Dhrupta and Another Vs. State of Himachal Pradesh and Others, Therefore, it is settled legal proposition that no person can be appointed even on temporary or ad hoc basis without inviting applications from all eligible candidates and if any such appointment has been made or appointment has been offered merely inviting names from the Employment Exchange that will not meet the requirement of Articles 14 and 16 of the Constitution. 12. A similar view has been reiterated in Pankaj Gupta and Others, etc. Vs. State of Jammu and Kashmir and Others, ; Binod Kumar Gupta and Ors. v. Ram Ashray Mahoto and Ors. AIR 2005 SC 2103 ; National Fertilizers Ltd. and Others Vs. Somvir Singh, ; R.S. Garg Vs. State of U.P. and Others, ; Ashok Kumar Sonkar Vs. Union of India (UOI) and Others, ; and Commissioner, Municipal Corporation, Hyderabad and Others Vs. P. Mary Manoranjani and Another, . 13. In Union Public Service Commission Vs. Girish Jayanti Lal Vaghela and Others the Hon'ble Supreme Court held that the appointment to any post under the State can only be made after a proper advertisement has been issued inviting applications from eligible candidates and holding of selection by a Body of Experts, and any appointment made without following the procedure, would be in violation of the mandate of Article 16 of the Constitution of India. 14. Therefore, it is evident that any appointment made without advertising the vacancy cannot be held to be in conformity with the mandate of Articles 14 and 16 of the Constitution of India and is a nullity. 15. In a regular selection it is not permissible to fill up the vacancy over and above the number of vacancies for the simple reason that it would amount to filling up of the vacancies which came into existence subsequent to the advertisement. (vide Union of India and Ors. v. Ishwar Singh Khatri and Ors. 1992 Supp. (3) SCC 84; State of Bihar and others Vs. The Secretariat Assistant Successful Examinees Union 1986 and others, ; Gujarat State Dy. Executive Engineers' Association Vs. State of Gujarat and Others, ; Ashok Kumar and Others Vs. (vide Union of India and Ors. v. Ishwar Singh Khatri and Ors. 1992 Supp. (3) SCC 84; State of Bihar and others Vs. The Secretariat Assistant Successful Examinees Union 1986 and others, ; Gujarat State Dy. Executive Engineers' Association Vs. State of Gujarat and Others, ; Ashok Kumar and Others Vs. Chairman, Banking Service Recruitment Board and Others, ; Prem Singh and Others Vs. Haryana State Electricity Board and Others, ; Surinder Singh and Ors. v. State of Punjab and Ors. AIR 1998 SC 18 ; Kamlesh Kumar Sharma Vs. Yogesh Kumar Gupta and others, ; Virender S. Hooda and Others Vs. State of Haryana and Another, ; State of Punjab Vs. Raghbir Chand Sharma and Another, ; Sri Kant Tripathi v. State of U.P. and Ors. (2001) 10 SCC 237 ; State of Jammu & Kashmir and Others Vs. Sanjeev Kumar and Others, ; State of U.P. and Others Vs. Rajkumar Sharma and Others, ; and Ram Avtar Patwari and Others Vs. State of Haryana and Others, . 16. The enrolment list prepared under GR&CO does not come to an end as no tenure has been fixed for its survival. However, the select list prepared for regular selection of clerks in the District Court has a life of one year Under what circumstances, the enrolment list is being used as a reservoir to fill up the vacancies, on the post of Process Server, whenever it occurs in future. Thus, the list becomes immortal, i.e., it will have a life till it stands exhausted. More so, the question would arise as to whether on the date of occurrence of vacancy, whether enrolled candidate peons fulfil other eligibility criteria including that of maximum age for being appointed as process server. 17. It has been pointed out that the Orissa District and Subordinate Courts' Non-Judicial Staff Services (Method of Recruitment and Conditions of Service) Rules, 2008 have been enacted and they have been published in the Official Gazette on 30th December, 2008. In the said Rules, the post of Candidate Peon does not find place and mentioned any where. Further, the said Rules do not make any reference to the posts of Process Servers. But Rule 11(e) of the Rules, 2008 reads as under: 11(e). In the said Rules, the post of Candidate Peon does not find place and mentioned any where. Further, the said Rules do not make any reference to the posts of Process Servers. But Rule 11(e) of the Rules, 2008 reads as under: 11(e). 50% of the posts of Process Servers shall be made by promotion on the basis of Merit-cum-Seniority from amongst Peons/Orderlies and other Group-'D' employees who possess the requisite qualification and rest 50% of the posts shall be made by direct recruitment from open market who have had minimum VIII standard or equivalent qualification. 18. In view of the above, as the Rules do not provide the promotion of Candidate Peons, question of making promotion amongst them for the posts of Process Servers does not arise. 19. The GR&CO are merely the circulars issued by the High Court from time to time. Thus, the same are executive instructions issued by the High Court and cannot override the statutory rules framed under proviso to Article 309 of the Constitution. 20. A Constitution Bench of the Supreme Court, in B.N. Nagarajan and Others Vs. State of Mysore and Others has observed as under: It is hardly necessary to mention that if there is a statutory rule or an Act on the matter, the executive must abide by that Act or Rule and it cannot in exercise of its executive powers under Article 162 of the Constitution ignore or act contrary to that rule or the Act. 21. Similarly, another Constitution Bench of the Supreme Court in Sant Ram Sharma Vs. State of Rajasthan and Another has observed as under: It is true that the Government cannot amend or supersede statutory Rules by administrative instruction, but if the Rules are silent on any particular point, the Government can fill-up the gap and supplement the rule and issue instructions not inconsistent with the Rules already framed. 22. The law laid down above, has consistently been followed and it is settled proposition of law that an Authority cannot issue orders/office memorandum/executive instructions in contravention of the statutory Rules. However, instructions can be issued only to supplement the statutory rules but not to supplant it. Such instructions should be subservient to the statutory provisions. (Vide Commissioner of Income Tax, Gujarat Vs. A. Raman and Company, ; Union of India (UOI) and Others Vs. Majji Jangamayya and Others, ; The District Registrar, Palghat and Ors. However, instructions can be issued only to supplement the statutory rules but not to supplant it. Such instructions should be subservient to the statutory provisions. (Vide Commissioner of Income Tax, Gujarat Vs. A. Raman and Company, ; Union of India (UOI) and Others Vs. Majji Jangamayya and Others, ; The District Registrar, Palghat and Ors. v. M.B. Koyyakutty and Ors. AIR 1979 SC 1060 ; Ramendra Singh and Others Vs. Jagdish Prasad and Others, ; P.D. Aggarwal and Others Vs. State of U.P. and Others, ; Beopar Sahayak (P) Ltd. and Others Vs. Vishwa Nath and Others, ; Paluru Ramkrishnaiah and Others Vs. Union of India (UOI) and Another, ; Comptroller and Auditor General of India and others Vs. Mohan Lal Mehrotra and others, ; and C. Rangaswamaiah and Others Vs. Karnataka Lokayukta and Others, ). 23. The Constitution Bench of the Supreme Court, in Naga People's Movement of Human Rights v. Union of India. AIR 1998 SC 431 , held that the executive instructions are binding provided the same have been issued to fill up the gap between the statutory provisions and are not inconsistent with the said provisions. 24. Thus, it is settled law that executive instructions cannot amend or supersede the statutory rules or add something therein. The orders cannot be issued in contravention of the statutory rules for the reason that an administrative instruction is not a statutory rule nor does it have any force of law; while statutory Rules have full force of law as held by the Constitution Bench of the Supreme Court in The State of Uttar Pradesh and Others Vs. Babu Ram Upadhya, ; and State of Tamil Nadu Vs. Hind Stone and Others, . 25. Similar view has been reiterated in Union of India and Ors. v. Sh. Somasundaram Viswanath and Ors. AIR 1988 SC 2255 ; Union of India and another Vs. Amrik Singh and others, ; Union of India and Others Vs. Rakesh Kumar etc., ; Swapan Kumar Pal and Others etc. Vs. Samitabhar Chakraborthy and Others, ; Khet Singh Vs. Union of India (UOI), ; Laxminarayan R. Bhattad and Others Vs. State of Maharashtra and Another, ; D.D.A. and Others Vs. Joginder S. Monga and Others, ; ITW Signode India Ltd. Vs. Rakesh Kumar etc., ; Swapan Kumar Pal and Others etc. Vs. Samitabhar Chakraborthy and Others, ; Khet Singh Vs. Union of India (UOI), ; Laxminarayan R. Bhattad and Others Vs. State of Maharashtra and Another, ; D.D.A. and Others Vs. Joginder S. Monga and Others, ; ITW Signode India Ltd. Vs. Collector of Central Excise, ; Pahwa Chemicals (P) Ltd. v. Commissioner of Central Excise, New Delhi AIR 2005 SC 1532 ; Dilip Kumar Ghosh and Others Vs. Chairman and Others, ; and Punjab Water Supply and Sewerage Board v. Ranjodh Singh and Ors. AIR 2007 SC 1082 , and it has been observed that statutory rules create enforceable rights which cannot be taken away by issuing executive instructions. 26. In K.P. Sudhakaran and Another Vs. State of Kerala and Others the Apex Court held that where statutory rules govern the field, prior executive instructions cease to apply automatically. 27. A Constitution Bench of the Supreme Court in Secretary, State of Karnataka and Others Vs. Umadevi and Others held as under: ... It is recognised that no government order, notification, or circular can be substituted for the statutory rules framed under the authority of law. This is because, following any other course could be disastrous inasmuch as it will deprive the security of tenure and the right of equality conferred on civil servants under the constitutional scheme. It may even amount to negating the accepted service jurisprudence. Therefore, when statutory rules are framed under Article 309 of the Constitution which are exhaustive, the only fair means to adoptis to make appointments based on the rules so framed. 28. In Mahadeo Bhau Khilare (Mane) and Others Vs. State of Maharashtra and Others the Apex Court held that even the scheme framed by way of administrative instruction, in violation of statutory rules cannot be sustained. 29. Further, the G.R.& CO. had been enacted on 26th July, 1948, i.e. prior to the commencement of the Constitution of India by the Patna High Court which have also been adopted/followed by this Court. 30. In the said Rules, 2008, as explained hereinabove, there is no mention of the words 'Candidate Peon to fill up the vacancies of Process Servers or any other posts. had been enacted on 26th July, 1948, i.e. prior to the commencement of the Constitution of India by the Patna High Court which have also been adopted/followed by this Court. 30. In the said Rules, 2008, as explained hereinabove, there is no mention of the words 'Candidate Peon to fill up the vacancies of Process Servers or any other posts. Therefore, the relief sought by the Petitioner that he should be reinstated and absorbed as a Process Server cannot be granted as it would be tantamount to issue a direction to act in contravention of the statutory provisions. 31. It is the well settled proposition of law that the Court has no competence to issue a direction contrary to law. Nor the Court can direct an authority to act in contravention of the statutory provisions. (Vide State of Punjab and others Vs. Renuka Singla and others, ; State of U. P. and others Vs. Harish Chandra and others, ; Union of India and Another Vs. Kirloskar Pneumatic Company Limited, ; Vice-Chancellor, University of Allahabad and Others Vs. Dr Anand Prakash Mishra and Others, ; and Karnataka State Road Transport Corporation Vs. Ashrafulla Khan and Others, ). 32. The facts clearly reveal that Petitioner had been appointed without following the due procedure prescribed by law. His services were terminated in 1994 and he has approached this Court after expiry of seven years. The appointment of Process Server as prescribed under the Rules, 2008 has to be made by promotion to the extent of 50% of the vacancies from the category of employees mentioned under Rule 11(e) of the Rules, 2008, which does not include the Candidate Peons. Therefore, it is not permissible for the Court to issue any direction to any authority to act in contravention with the Rules. GR&CO do not have any statutory force and are merely the executive instructions. The appointment for the posts of Process Servers are to be made giving strict adherence to the provisions of the Rules, 2008. Thus the relief sought by the Petitioner cannot be granted. In view of the above, this petition lacks merit and is accordingly dismissed. Final Result : Dismissed