JUDGMENT Hon’ble Ashok Bhushan, J.—These four special appeals relate to selection and appointment on Class-IV post under the Chief Medical Officer, Sant Ravidas Nagar, Bhadohi held in the year 2002. The issues raised in these appeals being similar, they have been heard together and are being disposed of finally by this common judgment. 2. We have heard Sri N.K. Pandey and Sri Syed Farman Ahmad Naqvi for the appellants in Special Appeals No. 1247 of 2005 and 1172 of 2005 respectively. Sri J.N. Maurya, learned Standing Counsel has appeared for the respondents in the aforesaid appeals and for the appellants in Special Appeal Nos. 574 of 2010 and 575 of 2010. 3. The Appeal Nos. 1274 of 2005 and 1172 of 2005 have been filed against the judgment and order of learned Single Judge dated 3rd May, 2005 by which Writ Petition No. 13333 of 2003 (Rajesh Kumar Kanaujia and 26 others v. Chief Medical Officer and others) was dismissed. 4. From the array of the parties, it transpires that Smt. Munni Devi is appellant No. 27 in Special Appeal No. 1274 of 2005 and also is appellant in Special Appeal No. 1172 of 2007, but no issue regarding competence of the appeals having been raised before us, we proceed to decide the appeals of Munni Devi on merits. 5. Special Appeal No. 574 of 2010 has been filed by the State of U.P. against the judgment and order of learned Single Judge dated 1st November, 2006 allowing Writ Petition No. 1839 of 2003 (Mohan Singh v. State of U.P. and others) and Writ Petition No. 23840 of 2004 (Mohan Singh v. State of U.P. and others). Special Appeal No. 575 of 2010 has been filed by the State of U.P. against the judgment and order of learned Single Judge dated 15th December, 2006 allowing Writ Petition No. 8371 of 2005 (Rajesh Kumar v. Chief Medical Officer and others). 6. For deciding all these appeals, it is sufficient to note the facts in detail of Special Appeal No. 1274 of 2005 arising out of Writ Petition No. 13333 of 2003. In Writ Petition No. 13333 of 2003 (hereinafter referred to as the writ petition of Rajesh Kumar Kanaujia) counter and rejoinder affidavits were filed. 6. For deciding all these appeals, it is sufficient to note the facts in detail of Special Appeal No. 1274 of 2005 arising out of Writ Petition No. 13333 of 2003. In Writ Petition No. 13333 of 2003 (hereinafter referred to as the writ petition of Rajesh Kumar Kanaujia) counter and rejoinder affidavits were filed. From the pleadings of the parties in the writ petition of Rajesh Kumar Kanaujia as well as the materials brought on the record in appeal, following facts emerge : 7. The State Government issued a Government order dated 3rd July, 2002 directing all Heads of the Department, Commissioners and District Magistrates for taking steps for filling up the backlog vacancies of reserved category candidates to be filed by direct recruitment/promotion. The Government order noticed that due to various reasons backlog vacancies have arisen in reserved category posts, which may be filled up. It was clarified that in the backlog vacancies of reserved category 50% ceiling shall not apply. The Chief Secretary of the State issued a consequential letter dated 4th July, 2002 for filling the backlog vacancies on priority basis. Again Government order dated 17th April, 2003 was issued for filling up the backlog vacancies of reserved category. By letter dated 24th May, 2003 of the State Government, it was clarified that under the Government order dated 16th July, 2002 permission has been given for filling up the backlog vacancies of reserved category and not of general category. The Director General, Medical Health, State of U.P. issued circular dated 2nd September, 2002 to all the Chief Medical Officers in the State of U.P. to identify unfilled backlog vacancies of reserve category and initiate process for selection in accordance with the Group-D Service Rules, 1985 and also in accordance with the Government orders issued from time to time. All the Chief Medical Officers were directed to take steps regarding identification of backlog vacancies of reserved category within a period of one week. The Chief Medical Officer, Sant Ravidas Nagar, Bhadohi after receiving the letter dated 2nd September, 2002 from Director General, Medical Health, issued letter dated 3rd September, 2002 to all Incharge of Primary Health Centre, Community Health Centre, Deputy Chief Medical Officers, District Laprosy Officer, District Malaria Officer and Superintendent M.B.S. Hospital, Bhadohi to give information regarding vacant posts of Group-D in his office. The information was directed to be submitted on the same day. The information was directed to be submitted on the same day. Copy of the letter dated 3rd September, 2002 has been filed as Annexure-4 to Writ Petition No. 13333 of 2003 i.e., the writ petition of Rajesh Kumar Kanaujia. In response to the letter dated 3rd September, 2002 the Superintendent of Community Health Centre, Gopiganj informed that there are five vacant posts by letter dated 3rd September, 2002, the District Leprosy Officer vide letter dated 4th September, 2002 informed that there are five vacant posts, the Incharge, Primary Health Centre, Aurai informed that there are two vacant posts by letter dated 4th September, 2002, the Incharge, Primary Health Centre, Suriyawan by letter dated 4th September, 2002 informed that there are no vacant post, the Superintendent M.B.S. Government Hospital, Bhadohi vide his letter dated 4th September, 2002 informed that there are four vacant posts. The Chief Medical Officer issued advertisement dated 11th September, 2002 advertising nine vacancies of Class-IV, which was published in Hindi Daily Newspaper “Dainik Jagran” on 12th September, 2002. The advertisement mentioned in Clause-11 that number of vacancies can decrease/increase. By letter dated 13th September, 2002 the District Malaria Officer intimated two vacancies under him. By letter dated 14th September, 2002 the Deputy Chief Medical Officer, Gyanpur, Sant Ravidas Nagar, Bhadohi intimated three vacancies, the Superintendent, Community Health Centre, Bhadohi intimated eight vacancies. The Selection Committee was constituted to hold the selection. A letter dated 23rd September, 2002 was sent by the Chief Medical Officer to all the members of the Selection Committee informing that in addition to post advertised on 11th September, 2002 information regarding certain more posts has been made available with delay on which selection is also to be made. By letter dated 23rd September, 2002 the details of the vacancies (8 for women and 30 for men) was intimated, which included four posts of drivers (detail of the vacancies communicated to the Chief Medical Officer has been filed as Annexure-5 to the writ petition of Rajesh Kumar Kanaujia). The letter of the Chief Medical Officer dated 23rd September, 2002 alongwith detail of 38 vacancies has been filed as Annexure-9 to the writ petition of Rajesh Kumar Kanaujia. The selection committee prepared two select list titled as first select list containing 18 names and the second select list containing 18 names. The letter of the Chief Medical Officer dated 23rd September, 2002 alongwith detail of 38 vacancies has been filed as Annexure-9 to the writ petition of Rajesh Kumar Kanaujia. The selection committee prepared two select list titled as first select list containing 18 names and the second select list containing 18 names. The select lists have been filed as Annexure-10 to the writ petition of Rajesh Kumar Kanaujia. The Chief Medical Officer issued appointment letters to all the selected candidates on 26th September, 2002. The Class-IV employees, who were issued appointment letters, claimed to have joined on 27th September, 2002 or thereafter and also claim to be working on their respective posts. The Chief Medical Officer, Sant Ravidas Nagar issued letter dated 3rd January, 2003 to all the Incharges of the Primary Health Centres, Community Health Centre, Deputy Chief Medical Officers, District Leprosy Officer and District Malaria Officer that in last few days certain Class-IV employees have been irregularly appointed with regard to which high level inquiry is going on. It was also stated in the letter that State has taken a serious view of the matter and on being found guilty strict action shall be taken. The officers were directed that against the fictitiously appointed employees strict action shall be taken failing which responsibility shall be of theirs. In view of the letter issued by the Chief Medical Officer dated 3rd January, 2003 payment of salary of all Class-IV employees appointed on 26th September, 2002 was stopped. Writ Petition No. 13333 of 2003 was filed by Rajesh Kumar Kanaujia and 26 other Class-IV employees praying for following relief : “1. issue a writ, order or direction in the nature of certiorari calling for the records of the case, quashing the order dated 3.1.2003 passed by the Chief Medical Officer, Sant Ravidas Nagar, Bhadohi (Annexure-1); 2. issue a writ, order or direction in the nature of mandamus directing the respondents not to give effect to the order dated 3.1.2003 passed by Chief Medical Officer, Sant Ravidas Nagar Bhadohi and further pleased to direct the respondents specially Chief Medical Officer, Sant Ravi Das Nagar to release the petitioners salary w.e.f. 27.9.2002 against which they are continuously working till date; 3. issue a writ, order or direction in the nature of mandamus directing the respondents to permit the petitioners to sign in the attendance register;” 8. issue a writ, order or direction in the nature of mandamus directing the respondents to permit the petitioners to sign in the attendance register;” 8. Writ Petition No. 1839 of 2003 was filed by Mohan Singh praying for quashing the order dated 7th January, 2003 issued by the Medical Health Officer, Primary Health Centre, Aurai, district Sant Ravidas Nagar, Bhadohi and for a direction to the respondents to pay salary to the petitioner. Writ Petition No. 8371 of 2005 was filed by Rajesh Kumar praying for quashing the order dated 12th January, 2005 by which it was directed that payment of salary cannot be granted to Rajesh Kumar in view of the order dated 30th November, 2002 of the Director, Administration. A writ of mandamus was also claimed by Rajesh Kumar praying for a direction to pay salary as Class-IV employee from 27th September, 2002. 9. An interim mandamus was issued in the writ petition of Rajesh Kumar Kanaujia on 24th July, 2003. A counter-affidavit was filed in the said writ petition to which rejoinder affidavit was also filed but salary was not paid to the petitioners and the writ petition was ultimately dismissed by the learned Single Judge vide judgment and order dated 3rd May, 2005. The writ petitions of Mohan Singh (Writ Petition Nos. 1839 of 2003 and 23840 of 2004) have been allowed by judgment and order dated 1st November, 2006 and Writ Petition of Rajesh Kumar was allowed by judgment and order dated 15th December, 2006 against which two special appeals being Special Appeal Nos. 574 of 2010 and 575 of 2010 have been filed by the State. 10. Sri N.K. Pandey and Sri S.F.A. Naqvi, learned counsel for the appellants in appeals filed by the employees, contended that selection was made by the Chief Medical Officer to fill up the backlog vacancies of reserved category and the writ petitioners belong to reserved category, hence there was no error in the selection. It is submitted that although only nine vacancies were advertised vide advertisement dated 11th September, 2002 but there was a clause in the advertisement that the vacancies can be increased or decreased and before the selection could take place on 25th September, 2002, the Chief Medical Officer informed about the increase of the vacancies information of which was received with delay. Thus at the time of selection 38 vacancies were informed and as per Clause-11 of the advertisement selected list of 36 candidates was rightly prepared. It is submitted that salary was stopped by the order of the Chief Medical Officer dated 3rd January, 2003 only on the ground that high level inquiry is going on in the matter. It is further submitted that Sri P.N. Shukla, Chief Medical Officer, who had conducted the selection was issued a charge-sheet in May, 2004, the inquiry was conducted and a report was submitted by the Director, Administration on 3rd November, 2004 exonerating Dr. P.N. Shukla, Chief Medical Officer from all the charges, which were with regard to illegality in the selection of Class-IV employees. The State Government vide its order dated 29th March, 2005 exonerated Dr. P.N. Shukla by terminating the disciplinary inquiry, who was retired by that time. It is submitted that when Dr. P.N. Shukla, who had conducted the selection, has been exonerated of the charges, no illegality in the selection was found and all the writ petitioners were entitled for salary. With regard to dismissal of the writ petition by the learned Single Judge vide judgment and order dated 3rd May, 2005 taking the view that Chief Medical Officer grossly erred in applying reservation to the posts, it is submitted that there was no material on the record to come to the conclusion that reservation was not properly applied. He has further submitted that the observation of the learned Single Judge that carried forward reserved vacancy cannot exceed 50% ceiling is incorrect. It is submitted that appointment of the petitioners having never been cancelled by any authority, they are entitled to be paid salary. 11. Learned Standing Counsel appearing for the respondents in the aforesaid appeal as well as for the appellants in Special Appeal No. 574 of 2010 and 575 of 2010, submitted that appointment was made much in excess to the number of vacancies advertised, hence the writ petitioners were not entitled for any relief. He submitted that only nine vacancies were advertised, hence no appointment could have been made over and above. He submitted that only nine vacancies were advertised, hence no appointment could have been made over and above. He supported the order of learned Single Judge dated 3rd May, 2005 dismissing the writ petition and challenging the order of learned Single Judge in writ petition of Mohan Singh and Rajesh Kumar, it is submitted that the judgment of learned Single Judge dated 3rd May, 2005 dismissing the writ petition of Rajesh Kumar Kanaujia having not been noticed, the judgments and order dated 1st November, 2006 and 15th December, 2006 deserve to be set-aside on this ground alone. He submits that mere fact that Dr. P.N. Shukla, Chief Medical Officer was exonerated in the disciplinary inquiry does not lead to conclusion that selection and appointment of the writ petitioners were valid. He submits that the State Government although earlier passed an order on 9th January, 2006 informing that in view of dropping of the disciplinary inquiry against Dr. P.N. Shukla, there is no justification for stopping the salary of Class-IV employees, but the said order was subsequently stayed by letter dated 20th January, 2006 noticing the fact that the claim with regard to payment of salary of those employees is pending in this Court. The Director General, Medical Health was directed to inform the State Government about the detail of the orders passed by the Court. 12. Sri N.K. Pandey placed reliance on the judgments of the Apex Court in the case of Prem Singh and others v. Haryana State Electricity Board and others, (1996) 4 SCC 319 and in the case of Virender S. Hooda and others v. State of Haryana and another, (1999) 3 SCC 696 . 13. We have heard the learned counsel for the parties and perused the record. 14. From the submissions of the learned counsel for the parties and pleadings on the record, following issues arise for consideration in these appeals : (i) Whether the appointment of 36 candidates could have been made when only 9 vacancies were advertised vide advertisement dated 11th September, 2002? (ii) Whether the vacancies which were intimated to Chief Medical Officer, Bhadohi in pursuance of his letter dated 3rd September, 2002 were backlog vacancies of reserved category, which could have been filled by special recruitment? (iii) Whether due to exoneration of Dr. (ii) Whether the vacancies which were intimated to Chief Medical Officer, Bhadohi in pursuance of his letter dated 3rd September, 2002 were backlog vacancies of reserved category, which could have been filled by special recruitment? (iii) Whether due to exoneration of Dr. P.N. Shukla from the charges pertaining to irregularity/illegality in the selection of Class-IV employees by order of the State Government dated 29th March, 2005, the appointment of the writ petitioners has to be treated as valid entitling them for payment of salary? 15. The first question to be considered is as to whether the appointment can be made in excess of the number of vacancies advertised. As noticed above, the Director General, Medical Health had issued a letter on 2nd September, 2002 to all the Chief Medical Officers to take steps for filling up the backlog vacancies of reserved category in pursuance of which Chief Medical Officer issued letter dated 3rd September, 2002 asking detail of vacant posts from his subordinates. The Director General, Medical Health in his letter dated 2nd September, 2002 has asked to submit details of vacancies within one week due to which reason the Chief Medical Officer issued advertisement on 11th September, 2002 by which date the details of all vacant posts under him were not even received as is clear from Annexure-5 to the writ petition of Rajesh Kumar Kanaujia. The details of certain vacancies were sent by letters dated 12th, 13th, and 14th September, 2002 as noticed above. It was due to this reason that Clause-11 was inserted in the advertisement that vacancies are subject to decrease or increase. 16. The above question was considered by the Apex Court in Prem Singh’s. In the said case 62 posts were advertised against which 137 candidates were appointed. In the said case 85 more posts had become available after the date of advertisement on which appointments were also made as 13 posts became vacant because of retirement, 12 posts became vacant because of death and 60 new posts were created of Junior Engineer. After considering the earlier judgments on the issues, following was laid down by the Apex Court in paragraphs 25 and 26 of the said judgment : “25. After considering the earlier judgments on the issues, following was laid down by the Apex Court in paragraphs 25 and 26 of the said judgment : “25. From the above discussion of the case law it becomes clear that the selection process by way of requisition and advertisement can by started for clear vacancies and also for anticipated vacancies but not for future vacancies If the requisition and advertisement are for certain number of posts only the State cannot make more appointments than the number of posts advertised, even though it might have prepared a select list of more candidates. The State can deviate from the advertisement and make appointments on posts falling vacant thereafter in exceptional circumstances only or in an emergent situation and that too by taking a policy decision in that behalf. Even when filling up of more posts than advertised is challenged the Court may not, while exercising its extra-ordinary jurisdiction, invalidate the excess appointments and may mould the relief in such a manner as to strike a just balance between the interest of the State and the interest of persons seeking public employment. What relief should be granted in such cases would depend upon the facts and circumstances of each case. 26. In the present case, as against the 62 advertised posts the Board made appointments on 138 posts. The selection process was started for 62 clear vacancies and at that time anticipated vacancies were not taken into account. Therefore, strictly speaking, the Board was not justified in making more than 62 appointments pursuant to the advertisement published on 2.11.1991 and the selection process which followed thereafter. But as the Board could have taken into account not only the actual vacancies but also vacancies which were likely to arise because of retirement etc. by the time the selection process was completed it would not be just and equitable to invalidate all the appointments made on posts in excess of 62. However, the appointments which were made against future vacancies - in this case on posts which were newly created - must be regarded as invalid. As stated earlier, after the selection process had started 13 posts had become vacant because of retirement and 12 because of deaths. The vacancies which were likely to arise as a result of retirement could have been reasonably anticipated by the Board. As stated earlier, after the selection process had started 13 posts had become vacant because of retirement and 12 because of deaths. The vacancies which were likely to arise as a result of retirement could have been reasonably anticipated by the Board. The Board through oversight had not taken them into consideration while a requisition was made for filling up 62 posts. Even with respect to the appointments made against vacancies which arose because of deaths, a lenient view can be taken and on consideration of expediency and equity they need not be quashed. Therefore, in view of the special facts and circumstances of this case we do not think it proper to invalidate the appointments made on those 25 additional posts. But the appointments made by the Board on posts beyond 87 are held invalid. Though the High Court was right in the view It has taken. we modify its order to the aforesaid extent. These appeals are allowed accordingly. No order as to costs.” 17. The appointment made to additional 25 posts which fell vacant due to retirement and death was not invalidated in special facts and circumstances of the case. However, the appointment on post beyond 87 was held to be invalid. The Apex Court in the above case laid down that if advertisement has been issued for a particular number of posts, the State cannot make more appointment than number of posts advertised. However, in exceptional circumstances or in emergent situation that too by taking a policy decision more posts than advertised can be filled. 18. The Apex Court judgment in Virender S. Hooda’s case (supra) laid down that on the basis of two circulars that vacancies arising within six months from the date of receipt of recommendation of the Commission are to be filled up by waiting list. Relying on the circulars, it was held that candidates in the waiting list had right of consideration. Following was laid down in paragraphs 3 and 5 of the said judgment : 3. ..... Therefore, the appellants case ought to have been considered when some of the vacancies arose by reason of non-appointment of some of the candidates. Therefore, the Government ought to nave considered the case of the appellants as per the rank obtained by them and the appellants had to be appointed if they came within the range of selection. ..... Therefore, the appellants case ought to have been considered when some of the vacancies arose by reason of non-appointment of some of the candidates. Therefore, the Government ought to nave considered the case of the appellants as per the rank obtained by them and the appellants had to be appointed if they came within the range of selection. Thus when these vacancies arise within the period of six months from the date of previous selection the circulars are attracted and hence the view of the High Court that vacancies arose after selection process commenced has no relevance and is contrary to the declared policy of the Government in the matter to fill up such posts from the waiting list.” 5. Therefore, we have no hesitation in directing the respondents to consider the cases of the appellants for appointment to posts of Haryana Public Service (Executive Brach). However, it is made clear that the appellants shall be fitted to the post ranking below to those who had been selected alongwith the appellants at the time of recruitment made pursuant to result declared on June 19, 1992. The appellants will be fitted in appropriate posts and they will accord appropriate scale of pay by giving them the benefit of increments, if any, but they will not be entitled to any monetary benefits for the period for which they have been kept out of employment. Let such action be taken by the Government expeditiously but not later than a period of three months.” 19. A recent judgment of the Apex Court in the case of State of Orissa and another v. Rajkishore Nanda and others, (2010) 6 SCC 777 had considered the said issue. In the said case advertisement was issued to fill up 15 posts of Junior Clerk. The respondents applied pursuant to the advertisement. By the time selection process could be completed, the number of vacancy increased from 15 to 33 and as per the requirement of the Rules merit list of 66 candidates was published. The respondents whose names appeared in the merit list approached the Tribunal. The Tribunal issued direction to give appointment to the candidates whose names were included in the select list. The State filed a writ petition in which order of Tribunal was modified by the High Court permitting consideration of those candidates who had approached the Tribunal. The respondents whose names appeared in the merit list approached the Tribunal. The Tribunal issued direction to give appointment to the candidates whose names were included in the select list. The State filed a writ petition in which order of Tribunal was modified by the High Court permitting consideration of those candidates who had approached the Tribunal. Against the order of High Court, State filed an appeal before the Apex Court. The Apex Court after referring to earlier judgments, laid down following in paragraph 11 : “11. It is a settled legal proposition that vacancies cannot be filled up over and above the number of vacancies advertised as “the recruitment of the candidates in excess of the notified vacancies is a denial and deprivation of the constitutional right under Article 14 read with Article 16(1) of the Constitution”, of those persons who acquired eligibility for the post in question in accordance with the statutory Rules subsequent to the date of notification of vacancies. Filling up the vacancies over the notified vacancies is neither permissible nor desirable, for the reason, that it amounts to “improper exercise of power and only in a rare and exceptional circumstance and in emergent situation, such a Rule can be deviated and such a deviation is permissible only after adopting policy decision based on some rational”, otherwise the exercise would be arbitrary. Filling up of vacancies over the notified vacancies amounts to filling up of future vacancies and thus, not permissible in law. (Vide 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 976 ; Surinder Singh and others v. State of Punjab and others, AIR 1998 SC 18 ; and Rakhi Ray and others v. High Court of Delhi, AIR 2010 SC 932 ).” 20. The recent judgment of the Apex Court dated 3rd June, 2010 in Civil Appeal No. 5987 of 2007 (Public Service Commission, Uttaranchal v. Mamta Bisht and others) is relevant to be noted. In the aforesaid case the Public Service Commission, Uttaranchal advertised 35 posts of Civil Judge (Junior Division) with a stipulation that number of vacancies may be increased or decreased. In the aforesaid case the Public Service Commission, Uttaranchal advertised 35 posts of Civil Judge (Junior Division) with a stipulation that number of vacancies may be increased or decreased. Instead of filling 35 vacancies, recommendation to fill up 42 vacancies has been made. The decision has been taken in this regard prior to declaration of the result. In facts of the aforesaid case, the Apex Court observed that although it is settled legal proposition that the vacancies over and above the number of vacancies advertised cannot be filled up but in the aforesaid case since the advertisement itself made it clear that the vacancies could be increased or decreased and before completion of the selection process, decision had been taken to fill up 42 instead of 35 vacancies, the same was not in interfered with. Following was laid down by the Apex Court in paragraph 6 of the said judgment : “6. It is settled legal proposition that vacancies over and above the number of vacancies advertised cannot be filled up. Once all the vacancies are filled up, the selection process comes to an end. In case a selected candidate after joining resigns or dies, the vacancy, so occurred cannot be filled up from the panel, which stood already exhausted. (Vide Rakhi Ray and others v. The High Court of Delhi and others, AIR 2010 SC 932 ). However, in the instant case, the advertisement itself made it clear that the vacancies could be increased and decreased and before completion of the selection process, a decision had been taken to fill up 42 instead of 35 vacancies and reservation policy had been implemented accordingly.” 21. From the above, it is clear that as a normal Rule the filling of only advertised vacancies is to be valid which can be deviated in exceptional circumstances after adopting policy decision based on some rational. From the above judgments, it is clear that normal Rule is that vacancies in over and above the vacancies advertised cannot be filled up and the same is subject to exception in certain cases. 22. The present is a case which falls in the category of exceptional circumstances. The present is a case where the vacancies were intimated to the Chief Medical Officer much before the selection dated 25th September, 2002 in response to his letter dated 3rd September, 2009 asking for detail of the vacant posts. 22. The present is a case which falls in the category of exceptional circumstances. The present is a case where the vacancies were intimated to the Chief Medical Officer much before the selection dated 25th September, 2002 in response to his letter dated 3rd September, 2009 asking for detail of the vacant posts. The Chief Medical Officer without waiting for information from his subordinate offices issued advertisement on 11th September, 2002 due to the reason that Director General, Medical Health on 2nd September, 2002 has written all the Chief Medical Officers to post him about the action taken for filling up of backlog vacancies of reserved category within one week. The advertised was published in the newspaper on 12th September, 2002 and within three days of the said publication all information was completed which was communicated by the Chief Medical Officer vide letter dated 23rd September, 2002 to the members of the Selection Committee as well as to the Director General, Medical Health. Thus the vacancies for which selection was made were existing at the relevant time but could not be advertised since advertisement was issued in hurry without waiting for all information to be compiled with. The Clause-11 in the advertisement that vacancies are likely to increase or decrease was consciously included since the Chief Medical Officer was well aware of the fact that all information regarding vacancies from his subordinates was not yet received. The Chief Medical Officer being the appointing authority of Class-IV employees, after receiving the detail of vacancies, took a decision to fill up all the vacant posts which was communicated to the Selection Committee on 23rd September, 2002. Thus there was clear decision before the selection that selection be made against all the vacant posts, hence we are of the view that on this ground alone the selection and appointment of the candidates over and above 9 vacancies could not be held to be illegal. 23. Now the second issue is taken up for consideration. The selection which has been undertaken by the Chief Medical Officer was in pursuance of the Government orders permitting holding of special recruitment for filling up the backlog vacancies of reserved category. 24. 23. Now the second issue is taken up for consideration. The selection which has been undertaken by the Chief Medical Officer was in pursuance of the Government orders permitting holding of special recruitment for filling up the backlog vacancies of reserved category. 24. The Uttar Pradesh Public Services (Reservation For Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 (hereinafter referred to as the 1994 Act) has been enacted by the State Government to provide for reservation in public services and posts in favour of the persons belonging to the scheduled castes, scheduled tribes and other backward classes of citizens and for matter connected therewith or incidental thereto. Section 3(1) of the 1994 Act provides for percentage of vacancies which shall be reserved at the stage of the direct recruitment. Sub-Section (2) of Section 3 provides for special recruitment for any unfilled vacancy of reserved category. Section 3(1) to 3(3) are quoted below : “3. Section 3(1) of the 1994 Act provides for percentage of vacancies which shall be reserved at the stage of the direct recruitment. Sub-Section (2) of Section 3 provides for special recruitment for any unfilled vacancy of reserved category. Section 3(1) to 3(3) are quoted below : “3. Reservation in favour of Scheduled Castes, Scheduled Tribes and Other Backward Classes.—[(1) In public services and posts, there shall be reservation at the stage of direct recruitment, the following percentage of vacancies to which recruitments are to be made in accordance with the roster referred to in sub-section (5) in favour of the persons belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes of citizens,- (a) in the case of Scheduled Castes Twenty-one per cent; (b) in the case of Scheduled Tribes Two per cent; (c) in case of Other Backward Class Classes of citizens Twenty-seven per cent; Provided that the reservation under clause (c) shall not apply to the category of Other Backward Classes of citizens specified in Schedule II: Provided further that reservation of vacancies for all categories of persons shall not exceed in any year of recruitment fifty per cent of the total vacancies of that year as also fifty per cent of the cadre strength of the service to which the recruitment is to be made; (2) If, in respect of any year of recruitment any vacancy reserved for any category of persons under sub-section (1) remains unfilled, such vacancy shall be carried forward and be filled through special recruitment in that very year or in succeeding year or years of recruitment as a separate class of vacancy and such class of vacancy shall not be considered together with the vacancies of the year of recruitment in which it is filled and also for the purpose of determining the ceiling of fifty per cent reservation of the total vacancies of that year notwithstanding anything to the contrary contained in sub-section (1);] [(3) Where a suitable candidate belonging to the Scheduled Tribes or Scheduled Casts, as the case may be, is not available in a recruitment either under sub-section (1) or sub-section (2) the vacancy reserved for him may be filled in such recruitment, from amongst the suitable candidates belonging to the Scheduled Castes or Scheduled Tribes, as the case may be, and as soon as a vacancy earmarked in the losses referred to in sub-section (5) for the Scheduled Castes or Scheduled Tribes, as the case may be, arises such person belonging to Scheduled Castes or Scheduled Tribes, as the case may be, shall be adjusted against such vacancy of his own category.]” The term “year of recruitment” has been defined in Section 2(d) of the 1994 Act, which is to the following effect:- “2(d). “Year of recruitment” in relation to a vacancy means a period of twelve months commencing on the first of July of a year within which the process of direct recruitment against such vacancy is initiated.” Sub-Section (2) of Section 3 of the 1994 Act which is relevant in the present case provides that if in respect of any year of recruitment any vacancy reserved for any category or person remains unfilled, such vacancy shall be carried forward and be filled through special recruitment. Sub-Section (2) of Section 3 thus clearly contemplates that special recruitment shall be made when in any year of recruitment any vacancy of reserved category remains unfilled. The condition precedent for holding special recruitment thus is remaining unfilled vacancy of reserved category in a year of recruitment. The learned Single Judge in the writ petition of Rajesh Kumar Kanaujia has taken the view that none of those vacancies were offered in any recruitment earlier, hence they could not be treated as backlog vacancy. This was the main reason for dismissing the writ petition of Rajesh Kumar Kanaujia by the learned Single Judge. 25. Sri N.K. Pandey, learned counsel appearing in the appeal of Rajesh Kumar Kanaujia submitted that there was no material on the writ petition on the basis of which the above finding could be recorded by the learned Single Judge. He submits that no issue was raised with regard to vacancies not being backlog or not belonging to reserved category. In writ petition of Rajesh Kumar Kanaujia the writ petitioners themselves have brought on the record details pertaining to vacancies, letters of the Chief Medical Officer and his subordinates. We again refer to the said letters to examine the contentions. Letter dated 3rd September, 2002 written by the Chief Medical Officer, Bhadohi has been filed as Annexure-4 to the writ petition. The information, which was called for by the Chief Medical Officer from his subordinates, is as follows : “mijksDr fo"k;d vki voxr djkus dk d"V djsa fd vkids ;gkWa prqFkZ Js.kh deZpkjh ds iq:"k@efgyk ds dqy fdrus in fjDr gSaA ;g lwpuk vki fuEu izk:i ij cukdj vkt gh bl dk;kZy; esa miyC/k djkuk lqfuf’pr djsaA” dze la[;k in uke fjDr inksa dh la[;k 1 2 3 eq[; fpfdRlk vf/kdkjh larjfonkl uxj HknksghA” In response to the aforesaid query, the vacancies were intimated by the subordinates of the Chief Medical Officer. It is sufficient to refer to the letter dated 3rd September, 2002 of the Superintendent, Community Health Centre, Gopiganj. The information pertaining to Class-IV employee in Community Health Centre, Gopiganj was as follows: “dk;kZy; v/kh{kd lk0 Lok0 dsUnz xksihxat] la0j0nk0 uxj Hknksgh] p0 Js.kh ls lpwuk dz0la0 inuke LohÑr inksa dk;Zjr fjDr lkekU; fiNMh vuq0 vuq0 tu vU; dh l[;k tkfr tkfr tkfr 1 okMZ Cok; 4 4 fuy 1 1 1 & 2 Lohij 2 2 x & & & 2 3 Lohizsl 2 2 fuy & & & 1 4 okMZ vk;k 2 2 x 2 & & & 5 dqd 1 x 1 & & & & 6 /kksch 1 x 1 & & & & 7 Dyhuj & & & & & & & 8 fHk’rh & & & & & & & 9 MkdZ:e 1 1 & 1 & & & vflLVsaV 10 ,p0ih0 ]]]] 2 1 1 1 & & & 11 nkbZ 3 2 1 1 & 1 & 12 okgu pkyd 2 1 1 & 1 & & 13 pkSdhnkj 1 1 x & & & & ;ksx 21 14 05 06 02 02 03 g0 Superintendent C.H.C. Gopiganj, S.R.D. Nagar.” 26. There is also on record the letter dated 23rd September, 2002 of the Chief Medical Officer sent to the members of the Selection Committee giving details of vacant posts, which indicates that all vacant Class-IV post of different nature have been clubbed and consolidated statement has been prepared giving total number of vacancies as 38. From the aforesaid letter, it is clear that the letter of the Chief Medical Officer even did not ask the details of backlog vacancy belonging to reserved category. Even if it is assumed that letter intended to give information of the back log or reserved category, in the information supplied from 3rd September, 2002 to 14th September, 2002 to the Chief Medical Officer, there are no details as to out of vacant posts how many posts are of reserved category and how many posts are backlog. The details, as noticed from the writ petition of Rajesh Kumar Kanaujia clearly indicates that neither the Chief Medical Officer nor the subordinates who sent information of vacancy, were alive to the question as to whether the vacancies are backlog vacancy of reserved category or not. 27. The details, as noticed from the writ petition of Rajesh Kumar Kanaujia clearly indicates that neither the Chief Medical Officer nor the subordinates who sent information of vacancy, were alive to the question as to whether the vacancies are backlog vacancy of reserved category or not. 27. The special recruitment, as observed above, can be undertaken only for backlog vacancies of reserved category. The backlog vacancy of reserved category are those vacancies which have been once advertised and offered for recruitment. Thus unless the Chief Medical Officer was satisfied that the vacancies were once advertised for direct recruitment and could not be filled up, the special recruitment was impermissible. Thus the submission of learned counsel for the appellant-writ petitioners that there were no materials on the record of writ petition cannot be accepted. 28. It is relevant to note that writ petitioners have come up in the writ petition praying for mandamus to the respondents to make payment of salary. The Court before issuing any mandamus has to satisfy that selection and appointment has been made in accordance with the relevant Rules and the 1994 Act. The State Government issued Government order letter dated 3rd July, 2002 pursuant to which the Director General, Medical Health issued directions on 2nd September, 2002 for identifying backlog vacancies belonging to reserved category. Thus the first obligation on the Chief Medical Officer was to identify the backlog vacancies for which special recruitment could have been made. The advertisement, which has been issued, clearly indicates that recruitment is a special recruitment for filling up the backlog vacancies. Thus the question as to whether the vacancies to be filled in fell in the reserved category and they were earlier advertised was the very foundation for undertaking the special recruitment. The Chief Medical Officer has not adverted to the aforesaid facts and he proceeded to compile all vacant posts intimated by subordinate officers and treated them to be backlog vacancies of the reserved category without there being any basis. 29. From the materials brought on the record, it is clear that neither the Chief Medical Officer even on subsequent stage or the State Government have adverted to the aforesaid issues or taken any decision. 30. The third issue relates to exoneration of Dr. P.N. Shukla in the disciplinary inquiry. The disciplinary inquiry was initiated against Dr. 29. From the materials brought on the record, it is clear that neither the Chief Medical Officer even on subsequent stage or the State Government have adverted to the aforesaid issues or taken any decision. 30. The third issue relates to exoneration of Dr. P.N. Shukla in the disciplinary inquiry. The disciplinary inquiry was initiated against Dr. P.N. Shukla, the then Chief Medical Officer alleging irregularity and illegality in the selection. The State Government has exonerated the Chief Medical Officer from the charges. The exoneration of Dr. P.N. Shukla, Chief Medical Officer from the charges and holding that no misconduct was committed by the Chief Medical Officer (Dr. P.N. Shukla) cannot be treated to be affirmation of the process of selection and appointment made by Dr. P.N. Shukla. Dr. P.N. Shukla may not be found guilty of misconduct but mere exoneration from misconduct cannot be treated to be affirmation of the selection process undertaken by him. 31. The order of the State Government dated 9th January, 2006 has been referred to by Sri N.K. Pandey, appearing for the appellant-writ petitioner, by which the State Government took the view that Dr. P.N. Shukla having been exonerated, the salary to the Class-IV employees could be paid but the said order was immediately stayed by order dated 20th January, 2006 after coming to know that the dispute regarding payment of salary is pending consideration in this Court. On 20th January, 2006 on which date the order was issued by the State Government, the judgment of learned Single Judge dated 3rd May, 2005 was already delivered dismissing the writ petition of Rajesh Kumar Kanaujia and the matter was pending in the appeal. It has been submitted before us that since writ petition filed by Rajesh Kumar and Mohan Singh have been allowed by learned Single Judge on 1st November, 2006 and 15th December, 2006 respectively, they are getting salary. The judgment of the learned Single Judge in Writ Petition No. 8371 of 2005 (Rajesh Kumar v. Chief Medical Officer) by which the writ petition was allowed, it was specifically observed by the learned Single Judge that the Court has not at all gone to the validity of the appointment and it is always open to the respondents to see as to whether appointment have been validly made or not. Following observations were made by the learned Single Judge in last paragraph of the judgment : “As proceedings against Dr. P.N. Shukla has been dropped and no action has been taken against him, and no other enquiry qua appointment is being undertaken as such in the grab of the said inquiry salary of the petitioner cannot be permitted to be stopped. This Court has not at all gone into the question of validity of the appointment of petitioner and it is always open to respondents to see, as to whether appointment have been validly made or not.” 32. It is to be noted that judgment in Rajesh Kumar Kanaujia’s case which pertained to the same selection was delivered on 3rd May, 2005 but when the writ petition of Mohan Singh and Rajesh Kumar was heard this was not pointed out by the State that writ petition of the selected candidates of the same selection has already been dismissed. The orders of the learned Single Judge dated 1st November, 2007 and 15th December, 2006 were delivered without noticing the judgment dated 3rd May, 2005 in the writ petition of Rajesh Kumar Kanaujia. 33. It has been submitted before us that Rajesh Kumar and Mohan Singh have been getting salary in view of the final judgment delivered in their writ petition but in writ petition of Rajesh Kumar Kanaujia and others the payment of salary was not made in view of the fact that counter-affidavit was filed after issuance of interim mandamus. The question as to whether the special recruitment could have been held for filling up the backlog vacancies of reserved category goes to very root of the matter and from the materials brought on the record it does not appear that the Chief Medical Officer had adverted to the very issue which was asked to be identified by him by the Government order dated 3rd July, 2002 and the letter of the Director General, Medical Health dated 2nd September, 2002. It is thus necessary that the said issue be gone into and thereafter a decision be taken with regard to validity of the appointment and payment of salary to the candidates appointment on 26th September, 2003. 34. It is thus necessary that the said issue be gone into and thereafter a decision be taken with regard to validity of the appointment and payment of salary to the candidates appointment on 26th September, 2003. 34. In facts of the present case, ends of justice be served in directing the State Government to consider the issue, as noted above, and thereafter take an appropriate decision with regard to validity of appointment and payment of salary to the writ petitioners. We permit the writ petitioners to submit a representation before the State Government alongwith a certified copy of this judgment within four weeks from today. The State Government shall consider the representation of the writ petitioners, the record of the Chief Medical Officer pertaining to the selection in question and the reports, if any, and take appropriate decision with regard to validity of the appointment and payment of salary to the writ petitioners expeditiously preferably within a period of three months from the date a certified copy of this judgment alongwith the representation is received by the State Government. We make it clear that those writ petitioners, who has been receiving their salary, shall be paid their salary till a decision is taken by the State Government as indicated above. The judgment of learned Single Judges impugned in these appeals are modified to the above extent. 35. With the aforesaid directions, all the special appeals are disposed of. —————