1. Although the petitioner by means of this writ petition has prayed for setting aside and quashing of the appointment of the respondent No. 5 as Subject Teacher (Education) in the particular school, but the order of appointment as such has neither been enclosed nor put to challenge. 2. The facts materials for the purpose of disposal of the writ petition are that the petitioner who is an MA in Education with B.Ed. degree had been serving in the school called Jugijan Higher Secondary School, Nagaon for the period from 01.08.2006 to 04.09.2009 as honourary Subject Teacher in Education. Although she had applied for regular appointment against the said post pursuant to the advertisement dated 03.06.07 (Annexure-5) and duly appeared in the selection conducted by the selection committee, but she having not been appointed and instead the respondent No. 5 having been appointed, she has filed the instant writ petition. Be it stated here that the advertisement was published by the Director of Secondary Education, Assam for as many as 158 numbers of posts of Subject Teacher in different schools throughout the State one of which was for the post of Subject Teacher in Education in the school in which the petitioner had been serving as Honourary Teacher, namely Jugijan H.S. School. 3. Admittedly, the respondent No. 5 has been appointed as reserved category candidate (OBC). The two fold contentions of the petitioner is that taking into account the number of teachers working in the school and the reserved category teachers already available in the school, as per the 20 point Roster applicable to the case, the respondent No. 5 could not have been appointed against the particular Roster point. The second contention raised is that the petitioner having secured better marks than the respondent No. 5 in the selection, she ought to have been appointed instead of appointing respondent No. 5 in the name of reservation, more so when in the advertisement there was no indication that there would be reservation against the post. 4. In the counter affidavits filed by the respondents both official and private, i.e. the respondent No. 5, what has been contended is that as per the reservation policy of the State, the post in question being earmarked for OBC candidate and the respondent No. 5 belonging to the said category, has been appointed as he is more meritorious candidate amongst the OBC candidates. 5. 5. I have heard Mr. M.J. Quadir, learned counsel for the petitioner as well as Dr. Y.K. Phukan, learned Sr. counsel assisted by Ms. S. Borah, leanred counsel appearing for the respondent No. 5. I have also heard Mr. S.K. Sas, learned Standing counsel, Education Department. 6. Mr. Quadir, learned counsel for the petitioner highlighting the aforesaid two contentions and placing reliance on the decisions reported in (1) 2006 (1) GLT 190 (KK Rajesh Vs. Arunachal Pradesh and others); (2) (1998) 4 SCC 01 (Post Graduate Institute of Medical Education vs. Faculty Association) and (3) (1988) 2 SCC 214 (Dr. Chokadhar Paswan vs. State of Bihar) submitted that the respondents acted illegally in appointing the respondent No. 5 to the deprivation of the petitioner. 7. On the other hand, Mr. Y.K. Phukan, learned Sr. counsel appearing for the respondent No. 5 submitted that the appointing authority was duty bound to follow the reservation policy of the State and that the advertisement itself having mentioned that the reservation provision for appointment would be followed as per Rule, the respondent No. 5 has rightly been appointed as reserved category candidate (OBC) on the basis of the percentage of reservation applicable to the said category. 8. Mr. S.K. Das, learned Standing counsel, Education Department also made submission supporting the action of the official respondents in appointing the respondent No. 5 as a reserved category candidate (OBC). He has also produced the records pertaining to the case. 9. The fact that the petitioner had been serving as Honourary Teacher in the school for the period from 01.08 .06 to 04.09.09, that by itself cannot clothe the petitioner with any kind of right to get regular appointment which will have to be as per the provisions of recruitment rules. In the instant case, the rule that is applicable is Assam Secondary Education (Provincialised) Services Rules, 2003. A few provisions of the said rules which are considered relevant are quoted below: 2. Definition: (a) Act means the Assam Secondary Education (Provincialisation) Act, 1977. In the instant case, the rule that is applicable is Assam Secondary Education (Provincialised) Services Rules, 2003. A few provisions of the said rules which are considered relevant are quoted below: 2. Definition: (a) Act means the Assam Secondary Education (Provincialisation) Act, 1977. (b) Appointing authority means- (i) The Director of Secondary Education, Assam in respect of the cadres of Principal, Vice-Principal, Headmaster, Head Mistress, Assistant Headmaster, Assistant Head-Mistress, Post-Graduate Teacher, demonstrator mentioned in rules 3(1) (b) and 3(1) (b) (i) and (v) (ii) (c) Appointment means assignment of service issued by the appointing Authority to a person selected in accordance with the provisions of these rules; (d) (e) (f) (g) (h) School Selection Committee means the Committee as referred to under rule 8 (c) (i) District Approval Committee means the Committee as referred to under rule 8 (d) (j) (k) (l) (m) (n) (o) (p) (q) (r) (s) Service means the Assam Secondary Education (Provincialised) Service. (t) (u) (v) (w) Member means the member of the Service. 3. Class and Cadres- (1) The service inprovincialised School shall consist of the teaching and non-teaching staff. The teaching staff shall consist of the following classes and cadres: (a) Class-II (Senior)- It shall include the cadres of (i) Principal; (ii) Vice-Principal; (iii) Post-Graduate Teacher (iv) Head Master/Head Mistress/Superintendent; (b) Class -II (Junior) - it shall include the cadres of (i) Assistant Head Master/Asstt. Head Mistress/Asstt. Superintendent; (ii) Graduate Teacher, Hindi teacher having Bachelor Degree, Classical teacher (Sankrit/Arabic, Assamese Language teacher; (iii) Senior Classical teacher without general Degree (iv) Junior teacher/Junior Classical teacher/Junior Hindi Teacher/Music teacher (v) Demonstrator (vi) Craft teacher 7. Recruitment to the post of Post-Graduate Teacher of Provincialised Higher Secondary School and Selection Procedure- (a) (b) (c) (d) (e) After approval of the State Level Approval Committee the Director of Secondary Education, Assam shall appoint the candidates observing all formalities; (f) (g) The validity of the select list shall not exceed beyond one year from the date of publication. 10. From the aforesaid provision of the Rules what is seen is that the post of Post Graduate Teacher is in the category of Class-II (Senior). Under Rule- 3, on the commencement of the Rules, the strength of service and the kind of post therein shall be as mentioned in Schedule-III appended to the Rules. 10. From the aforesaid provision of the Rules what is seen is that the post of Post Graduate Teacher is in the category of Class-II (Senior). Under Rule- 3, on the commencement of the Rules, the strength of service and the kind of post therein shall be as mentioned in Schedule-III appended to the Rules. Under Schedule- III, the post of Headmaster, Vice-Principal and Post Graduate Teacher have been clubbed together as Grade-II cadre mentioning the number of posts in each category. So far as the cadre strength of Post Graduate Teacher is concerned, same at the commencement of the Rules was 5498 . 11. According to the petitioner, since in the school in question there were already four Post Graduate teachers including that of an OBC teacher and an SC Teacher, as per the Roster point, the 5th post could not have been given to the respondent No. 5. Referring to the Office Memorandum dated 20.12.05 laying down the methodology of the operation of the Roster for OBC and MOBC candidate in the matter of direct recruitment, it is the stand of the petitioner that the vacancy in question being the 5th one in the school, should have been filled up through the petitioner as a general category candidate and not through an OBC candidate, i.e. the respondent No. 5. 12. As per the above Roster point indicated in the said Office Memorandum, the second vacancy is reserved for OBC/MOBC and the 5th vacancy is unreserved. To answer this plea of the petitioner, suffice is to say that the plea is wholly misconceived to projected that reservation would apply school wise. The advertisement for 158 posts was a composite one and not for the particular school alone. That apart, as noticed above, it is not school wise cadre of Post Graduate Teacher, but under Rule- III, the said posts are in a composite cadre, which is Class-II (Senior). The cadre strength of Post Graduate Teacher as a whole has also been noticed above. Thus, it cannot be said that the Roster will have to be operated school wise and not on the basis of total cadre strength. 13. The cadre strength of Post Graduate Teacher as a whole has also been noticed above. Thus, it cannot be said that the Roster will have to be operated school wise and not on the basis of total cadre strength. 13. Apart from the above, unless it is shown that the existing OBC candidate working in the school which is said to be Post Graduate Teacher in Economics, was appointed as an OBC candidate, the petitioner cannot jump to the conclusion that the 5th vacancy will have to be provided to a general category candidate. In this connection, the categorical stand of the respondent Nos. 3 and 4, i.e. the school Managing Committee and the Selection Board will clinch the issue. In the affidavit in opposition filed by the said two respondents, it has been categorically stated in paragraph-6 that the Post Graduate Teachers were not appointed applying the reservation policy, but they were appointed on the basis of their merit without following any reservation policy. The services of the earlier incumbents had been provincialised at the time of provincialisation of the school and none of the teachers had been appointed following the reservation policy. 14. The above particular stand of the said two respondents has not been denied by the petitioner in his affidavit in reply. Thus, even if the contention of the petitioner that reservation Roster will have be applied school wise is accepted, although not acceptable, then also it cannot be said that the 5th vacancy in the school will have to be provided to a general category candidate. As noticed above, the second Roster point is meant for OBC/MOBC and if the earlier incumbents were not appointed following the reservation policy then certainly the said Roster point will have to be carried forward and applied on availability of the OBC category candidate which in the instant case, is the respondent No. 5. 15. The records produced by Mr. S.K. Das, learned Standing counsel, Education Department indicates drawing of composite merit list by the State Level Approval Committee indicating the category to which the candidates belong to. On perusal of the said merit list what is seen is that the respondent No. 5 was recommended for appointment as a reserved category candidate, i.e. OBC. The records produced by Mr. S.K. Das, learned Standing counsel, Education Department indicates drawing of composite merit list by the State Level Approval Committee indicating the category to which the candidates belong to. On perusal of the said merit list what is seen is that the respondent No. 5 was recommended for appointment as a reserved category candidate, i.e. OBC. It is on this count, although the petitioner a general category candidate had secured 147.95 marks in the selection, could not be appointed on the basis of percentage of marks, as the reservation and Roster point fell due for an OBC candidate. Consequently, the respondent No. 5 who had secured 146.53 marks in the selection was appointed. 16. The decisions on which the learned counsel for the petitioner has placed reliance are totally out of context. In K.K. Rajesh (supra), the deprivation of the petitioner who had topped the select list against a single vacancy was interfered with as there could not have been any reservation against a single post. The instant case is not of a single cadre post as per the own case of the petitioner. 17. Similar view was expressed in Faculty Association (supra). It was held that reservation cannot be applied through Roster or otherwise against a single cadre post as the same would mean 100% reservation. 18. In Dr. Chokadhar Paswan (supra) referring to the provision of the particular circular where it was found that 50 point Roster was to be applied to the post belonging to the same cadre, but the particular post not belonging to the said cadre was grouped together for the purpose of implementing 50 point Roster, the Apex Court held that reservation could not have been applied. It is not understood as to how this case could come to aid to the case of the petitioner. 19. The petitioner has only harped on the Roster point without referring to the total cadre strength and the percentage of reservation applicable. In R.K. Sabharwal vs. State of Punjab (1995) 2 SCC 745 , it was held that percentage of reservation is to be worked out in relation to the number of posts, which form cadre strength. The concept of vacancy is not relevant in operating the percentage of reservation. The Govt. In R.K. Sabharwal vs. State of Punjab (1995) 2 SCC 745 , it was held that percentage of reservation is to be worked out in relation to the number of posts, which form cadre strength. The concept of vacancy is not relevant in operating the percentage of reservation. The Govt. has to apply the cadre strength as a unit in the operation of Roster in order to ascertain as to whether a given class/group is adequately represented in service. The cadre strength as a unit also ensures that the reservation remains within 50% limit, is not violated. Further, the Roster is to be on the basis of the post specified and not vacancy-based. In paragraph-6 of the judgment, it was observed that the cadre strength is always measured by the number of posts comprising the cadre. Right to be considered for appointment can only be claimed in respect of a post in a cadre. As a consequence, the percentage of reservation has to be worked out in relation to the number of posts which form the cadre strength. The concept of vacancy has no relevance in operating the percentage of reservation. 20. At the beginning of this judgment it has been noted that although the prayer of the petitioner is to set aside and quash the appointment of the respondent No. 5 and to appoint him to the post of Post Graduate Teacher, but there is no challenge to the appointment order as such by which the respondent No. 5 was appointed. As has been held by the Apex Court in Surinder Singh Vs. Central Govt. reported in AIR 1986 SC 2166 and also in (2001) 9 SCC 344 (Hindustan Petroleum Corporation Ltd. vs. Sunita Mehta) there being no formal challenge to the order in question, same cannot be set aside. 21. In the instant writ petition the petitioner has not put any formal challenge to the order of appointment to the respondent No. 5. In such a situation, even otherwise also the order appointing the respondent No. 5 which does not form part of the writ petition, cannot be set aside and quashed. However, this aspect of the matter need not detain us in view of the above finding on merit of the case. 22. For all the aforesaid reasons, the writ petition is dismissed. However, there shall be no order as to costs.