Judgment :- I.P. MUKERJI, J. BACK GROUND: This is a writ by an unsuccessful candidate in the selection process for recruitment of judicial officers in the West Bengal Judicial Service. He was unsuccessful in the selection process of 2007. Under Article 234 of the Constitution of India appointment of any person to the Judicial Service of a State shall be made by the Governor of the State according to rules made by him in consultation with the State Public Service Commission and the State High Court. The Public Service Commission West Bengal conducts the West Bengal Judicial Service Examination. On 17th February 2007, this Public Service Commission circulated information to prospective candidates about the holding of the West Bengal Judicial Service Examination 2007. The examination had three stages (i) preliminary examination (ii) final examination and (iii) personality test. It was announced that the preliminary examination would be held in Kolkata and Darjeeling in May 2007. The number of vacancies notified was 109. Eleven posts were reserved for Schedule Tribe candidates. According to the above advertisement, the application form was to be accompanied by inter alia attested copies of certificate of age, educational qualification, enrolment certificate of the Bar Council and so on. A Schedule Caste or Schedule Tribe candidate had to furnish attested copies of documents issued by a “competent authority”. The details of the certificate to be provided by a Schedule Caste or Schedule Tribe candidate were specified in another portion of the application form which said that the competent authority was the competent authority under the West Bengal SCs and STs (Identification) Act, 1994 and SCs/STs Welfare Department Order No. 261-TW/EC/MR-103/94 dated 6th April 1995. Such competent authority in the district was the Sub-Divisional Officer of the Sub-division concerned. The eligible qualification for taking this examination was a degree in law from a recognized university or institution, by a citizen of India who subsequently was enrolled as advocate in the roll of the Bar Council of a State or Union Territory of India on the date of advertisement for the examination. Age limit was between 23 years and 35 years on the date of the advertisement. The upper age limit was relaxable by 5 years in case of SC and ST candidates. Age limit was between 23 years and 35 years on the date of the advertisement. The upper age limit was relaxable by 5 years in case of SC and ST candidates. The whole foundation of the case of the writ petitioner is that although he was unsuccessful in the 2007 selection process where he was treated as a general candidate, had he been treated as a Schedule Tribe candidate he would have qualified. Therefore, he claims necessary writs and orders upon the respondents to appoint him on the footing that he was such candidate. FACTS : Now, I turn to the facts in more detail. At the time of filling up of the form for the concerned examination, the writ petitioner was unable to produce the necessary certificate of the Sub-Divisional Officer as required by the above Act and Rules certifying that he belonged to the Schedule Tribe. He did possess a certificate dated 8th January 2003 issued by the Director Backward Class Welfare, Government of West Bengal to such effect. According to the writ petitioner he had applied to the Sub-Divisional Officer, Barrackpore for issuance of such certificate on 11th April 2002 but on the date of his so submitting the application form for the said examination, such certificate was not available. I was told by counsel for all parties that an application form is issued free to inter alia Schedule Tribe candidates but general candidates have to pay Rs.200/- for it. When the writ petitioner could not produce a proper certificate issued by the Sub-Divisional Officer he was issued a form upon payment of Rs.200/-, which is issued to general category candidates. A most interesting situation arose when that particular application form was filled up by the writ petitioner candidate by putting a tick mark in the box with the letter ST over it. Such boxes are provided for in paragraph 4(a) of the application form for candidates to denote their community or ethnicity. More interestingly the next heading required the candidate to mention the particular tribe or sub-caste to which he or she belonged. On that heading which was 4(b) the writ petitioner mentioned ‘Gond’ of the State of West Bengal. In the box under the title “issuing authority” the writ petitioner stated “applied for”. More interestingly the next heading required the candidate to mention the particular tribe or sub-caste to which he or she belonged. On that heading which was 4(b) the writ petitioner mentioned ‘Gond’ of the State of West Bengal. In the box under the title “issuing authority” the writ petitioner stated “applied for”. Now, while enclosing other documents with the application form, the writ petitioner enclosed the said certificate of the Director Backward Class Welfare, Government of West Bengal dated 8th January 2003 and submitted the application form to the examination conducting authorities. Now, if the said authorities had scrutinized the application form and declared it as defective upon intimation to the writ petitioner on the ground that the necessary certificate of the Sub-Divisional Officer was not enclosed as proof of his claim to be a member of the Schedule Tribe, it would have been an entirely different story. But what the authorities did was this. They accepted the application form together with the certificate. While working at their desks they classified the writ petitioner as a general candidate. The writ petitioner always thought that he was writing the examination as a Schedule Tribe candidate. Also, possibly, speculating whether he could succeed as a general candidate. If not, to immediately lodge his claim to be appointed as a Schedule Tribe candidate. The examination authorities treated the writ petitioner as a general candidate, without even informing him of this. It is because of this fault that the respondents have found themselves involved in this writ application from where it is very difficult for them to get out. The writ petitioner qualified in the examination, and was called for the personality test. The result was published on or about 19th March 2008. His rank was 86. He was treated as a general category candidate and rejected. Out of candidates for the eleven posts reserved for Schedule Tribe candidates the first candidate was one Leena Lama, whose rank was 137. Therefore, if the writ petitioner was treated as a Schedule Tribe candidate he would have stood first and been selected. It is urged on behalf of the writ petitioner that these posts for Schedule Tribe were not filled up in the 2007 examination and were carried forward to even 2010. Therefore, if the writ petitioner was treated as a Schedule Tribe candidate he would have stood first and been selected. It is urged on behalf of the writ petitioner that these posts for Schedule Tribe were not filled up in the 2007 examination and were carried forward to even 2010. So, if the writ petitioner is selected in the 2007 selection process no prejudice will be caused to any successful candidate or to any aspiring candidate. On 22nd September 2009, the Sub Divisional Officer, Barrackpore issued the necessary certificate, which was submitted by the petitioner to the Recruiting Authority. ARGUMENTS, DISCUSSION AND FINDINGS: Our constitution provides for reservation of posts for disadvantaged members of the community including members of the schedule tribe. Schedule Tribes are defined in article 366 (25) of the Constitution of India as such tribes or tribal communities or parts of or groups within such tribes or tribal communities who are schedule tribes under article 342 of the Constitution of India. Article 342 vests the president power, after consultation with the Governor of a State to specify by notification the tribes or tribal communities or groups within those tribes or communities who can be termed as schedule tribes. Constitution (Schedule Tribes) Order 1950 was promulgated in exercise of such power under article 342 (1) of the Constitution to identify schedule tribes. Such order was amended by the Schedule Castes and Schedule Tribes Orders (Amendment) Act, 1976 where the ‘gond’ tribe is identified and recognised as such schedule tribe in West Bengal. The legislature of West Bengal enacted the West Bengal Schedule Castes and Schedule Tribes (Identification Act 1994). The title of the Act states that it is to provide for the identification of the schedule castes and schedule tribes in West Bengal. Section 4 and 5 provide for a procedure for such identification. Section 4 says that a schedule tribe may be recognised by a certificate. Section 5 inter alia says that such certificate in the district may be issued by the Sub-Divisional Officer of the Sub-division concerned. In this particular service eleven posts were reserved for schedule tribe candidates in the 2007 selection process. Now, the question is how is a candidate to be considered as belonging to a schedule tribe? The recruiting authority must have some evidence before it to satisfy itself that a particular candidate belongs to that tribe. In this particular service eleven posts were reserved for schedule tribe candidates in the 2007 selection process. Now, the question is how is a candidate to be considered as belonging to a schedule tribe? The recruiting authority must have some evidence before it to satisfy itself that a particular candidate belongs to that tribe. Therefore, the West Bengal Schedule Castes and Schedule Tribes (Identification Act 1994) was enacted where inter alia the Sub Divisional officer was given power to issue a certificate authenticating the fact that a particular candidate belonged to the schedule tribe, as classified by the Constitution (Schedule Tribes) Order 1950 amended by the Schedule Castes and Schedule Tribes Orders (Amendment) Act 1976. Now, this is the evidence which was required by the recruiting authority to satisfy itself whether a particular candidate belongs to that tribe or not. The writ petitioner claims to belong to the ‘gond’ tribe which is recognised as a schedule tribe under the above order. But the above certification under the 1994 Act was required to satisfy the above recruiting authorities that the writ petitioner actually belonged to such tribe. The Supreme Court in the case of Kumari Madhuri Patil and another – v – Additional Commissioner, Tribal Development and others reported in A.I.R. 1995 SC 94 cited by learned Counsel for the petitioner laid down detailed norms for identification inter alia of members of the schedule tribes and for issuance of necessary certificate by the appropriate authorities certifying such claim. In that case the Supreme Court was also faced with the problem of dealing with false claims of belonging to a particular disadvantaged community and the need for ensuring that there was no dishonesty in such claim for the purpose of gaining employment. In that decision the Supreme Court issued detailed directives for verification of such claims including cancellation of certificates issued on the basis of dishonest claims. However, it was observed that in some cases where a candidate claimed to be a member of a particular disadvantaged community and asserted his or her right to admission in an institution on the strength of belonging to such community, but was unable till the last date to provide the necessary evidence in support of such claim, the concerned institution might admit the student provisionally, subject to the candidate furnishing the required certificate later. The Supreme Court in that case dealt with admission to an educational institution. But the principles evolved in that decision extend to provisional employment in the field of public employment also subject to production of the necessary certificate. In the judgment delivered by K. Ramaswamy, J, in Kumari Madhuri Patil and another – v – Additional Commissioner, Tribal Development and others reported in A.I.R. 1995 SC 94 (Supra), being the judgment of the court, it was said : “10. In case of any delay in finalising the proceedings, and in the meanwhile the last date for admission into an educational institution or appointment to an office or post, is getting expired, the candidate be admitted by the Principal or such other authority competent in that behalf or appointed on the basis of the social status certificate already issued or an affidavit duly sworn by the parent/guardian/candidate before the competent officer or non-official and such admission or appointment should be only provisional, subject to the result of the inquiry by the Scrutiny Committee.” If a person belongs to a particular tribe, he is a member of that tribe from the time of his birth. If that particular tribe is recognised as a schedule tribe at the time he seeks employment, he fulfils the eligibility criteria,, because the eligibility requirement is belonging to a particular tribe for whom certain member of posts are reserved. The certificates which are issued or have to be produced at the time of entrance to an educational institution or gaining public employment are the evidence which the educational or recruiting authority requires for satisfying itself that a particular candidate belongs to a particular tribe. For example, if a particular employment specifies that persons born before 1970 would only be eligible for a particular employment then a person born on 1st January 1967 does qualify. The birth certificate may be called for by the recruitment authority for the purpose of establishing such claim. Similar is the case here where a candidate is required to produce a certificate by the Block Development Officer to certify that the candidate belongs to the schedule tribe. The Delhi High Court in the case of Tej Pal Singh and Ors. – v – Government of NCT of Delhi and ors. Similar is the case here where a candidate is required to produce a certificate by the Block Development Officer to certify that the candidate belongs to the schedule tribe. The Delhi High Court in the case of Tej Pal Singh and Ors. – v – Government of NCT of Delhi and ors. decided on 24th December 1999 had said that a certificate issued by the competent authority is only an affirmation of fact which is already in existence. In this particular case the writ petitioner had applied on 11th April 2002 to the Sub-Divisional Officer, Barrackpore for issue of such certificate. There is no dispute regarding that. That application was kept pending for years. However, on 8th January 2003 the Director, Backward Class Welfare, West Bengal issued such a certificate that the writ petitioner belonged to the ‘gond’ tribe. The petitioner submitted such certificate, with the application form. The Public Service Commission did not reject his application, nor call for any explanation. They simply kept quiet. He wrote the examination, appeared in the personality test and secured a rank of 86 in the selection. As this particular candidate had declared in the application form that he was a schedule tribe candidate and had some evidence to show that he belonged to that tribe, although he could not produce the necessary certificate, he falls squarely within the principles of the case of Kumari Madhuri Patil and another – v – Additional Commissioner, Tribal Development and others (supra) where the Supreme Court has said that such candidates ought to have been taken provisionally subject to production of the necessary certificate. In fact on 22nd September 2009 the Sub-Divisional Officer, Barrackpore issued the necessary certificate. Therefore, the exact procedure which was required to be followed by the above Supreme Court judgment in Kumari Madhuri Patil and another – v – Additional Commissioner, Tribal Development and others (supra) has been followed by the writ petitioner. But I am afraid the respondents have not exercised their discretion properly as ought to have been done in the facts and circumstances of the case. Although, the writ petitioner was not selected, he had a right to be selected. But I am afraid the respondents have not exercised their discretion properly as ought to have been done in the facts and circumstances of the case. Although, the writ petitioner was not selected, he had a right to be selected. The principles enumerated in that case have been held not to be mere guidelines but binding law which have been followed subsequently by two judges and three judges benches of the Supreme Court, (see G.M., Indian Bank – v – R. Rani & Anr reported in JT 2008(1) SC 88. cited by the petitioner) In Purushottam –v- Chairman M.S.E.B. and another reported in (1999) 6 SCC 49 , also cited by the petitioner the Supreme Court said: “……..The right of the appellant to be appointed against the post to which he has been selected cannot be taken away on the pretext that the said panel has in the meantime expired and the post has already been filled up by somebody else. Usurpation of the post by somebody else is not on account of any defect on the part of the appellant, but on the erroneous decision of the employer himself. In that view of the matter, the appellant’s right to be appointed to the post has been illegally taken away by the employer. We, therefore, set aside the impugned order and judgment of the High Court and direct the Maharashtra State Electricity Board to appoint the appellant to the post for which he was duly selected within two months from today. We make it clear that appointment would be prospective in nature.” But it must be noted in this case that the vacancies for schedule tribe candidates were not filled up in that year, nor in subsequent years and are still shown as carried forward and vacant. Therefore, if the writ petitioner is appointed it cannot be said that he would be displacing some other appointed candidate. There is no question, in my opinion, of expiry of the life of the panel, in this case. In the facts and circumstances, although technically the selection process is over and a new selection process has been or may be undertaken, the writ petitioner should not be subject to a fresh examination or personality test as on the basis of materials discussed above he had a clear right to be appointed in the 2007 recruitment process. In the facts and circumstances, although technically the selection process is over and a new selection process has been or may be undertaken, the writ petitioner should not be subject to a fresh examination or personality test as on the basis of materials discussed above he had a clear right to be appointed in the 2007 recruitment process. It has been emphasized by the Supreme Court in a number of decisions that a recruiting authority should adhere to a cutoff date for possessing the necessary qualifications. Such cutoff date has to be specified in the rules for selection or in the advertisement for the post. In the absence of mention of the cutoff date in the rules or in the advertisement the cutoff date for possessing qualification has to be the date of filing of the application. On such cutoff date the candidate should have the qualification prescribed. [see Ashok Kumar Sonkar – v-Union of India & Ors. reported in (2007)4 SCC 54 and Shankar K. Mandal and Ors. – v – State of Bihar and Ors. reported in (2003)9 SCC 519 ]. Braj Kishore Prasad and etc. etc. – v – State of Bihar and others, (a Full Bench of Patna High Court) reported in 1999 (2) SLR 444 and Bhupinderpal Singh and others – v- State of Punjab and others reported in AIR 2000 SC 2011 . These decisions have been cited on behalf of the respondents. I do not know how these decisions can help them. The writ petitioner was born into a schedule tribe family and belongs to that community. Therefore, he possesses the necessary qualification on the cutoff date, whatever that cutoff date may be taken as. Although, he had applied much earlier for issuance of a schedule tribe certificate, the issuance of such certificate was delayed as a result of which he did not possess the certificate on the date of submitting the application. Nevertheless, he had mentioned in the form that he belonged to the schedule tribe and had annexed the certificate of the Director, Backward Class Welfare Government of West Bengal as stated above in support of his claim. Further, he had obtained the required certificate on 22nd September 2009. Therefore, on the principle mentioned in paragraph 10 of the judgment in Kumari Madhuri Patil – v – Additional Commissioner, (Supra) he should have been provisionally admitted. Further, he had obtained the required certificate on 22nd September 2009. Therefore, on the principle mentioned in paragraph 10 of the judgment in Kumari Madhuri Patil – v – Additional Commissioner, (Supra) he should have been provisionally admitted. Two general authorities of the Supreme Court have been cited by learned counsel for the respondents being State of U.P. & Ors. – v – Raj Kumar Sharma reported in (2006)3 SCC 330 and Jammu & Kashmir Public Service Commission and ors – v – Dr. Narinder Mohan & Ors. reported in (1994) 2 SCC 630 that selectees cannot claim appointment as a matter of right. Mere inclusion in a panel does not create any right, even if vacancies remain unfulfilled. Here the court was dealing with cases where the recruitment or appointing authority had a discretion to fill up the posts advertised for or to keep some posts vacant. Such authority does have the discretion, it was held. But in this case the authority has chosen to fill up the posts and a right to such post has arisen as a result of the exercise of the recruiting authority to fill up such posts in the selection process in question. In Madan Lal & Ors. –v – State of Jammu & Kashmir & Ors. reported in AIR 1995 SC 1088 cited by the respondents selection was made for the post of munsifs. A panel was prepared containing a merit list and waiting list of selected candidates. The life of the panel was one year or till existing vacancies were filled up. The Supreme Court held that the life of the panel was exhausted upon filling up of vacancies or expiry of one year, whichever was earlier. Thereafter, a fresh selection had to be undertaken for vacancies. The facts of this case are totally different in as much as the writ petitioner claims appointment in the existing vacancies and from the list published for them and not for a future vacancy from the existing list. Therefore, this case cited by the respondents is totally out of place. The decision in Civil Appeal No. 1867 of 2006 Malik Mazhar Sultan and anr. – v – U.P. Public Service Commission & ors. decided by the Supreme Court on 4th January 2007 also cited by the respondents contain general directions by the Hon’ble Supreme Court for judicial appointments. Therefore, this case cited by the respondents is totally out of place. The decision in Civil Appeal No. 1867 of 2006 Malik Mazhar Sultan and anr. – v – U.P. Public Service Commission & ors. decided by the Supreme Court on 4th January 2007 also cited by the respondents contain general directions by the Hon’ble Supreme Court for judicial appointments. Therefore, I allow this writ application by passing the following orders: (a) I direct the respondents jointly and severally to appoint the writ petitioner as a judicial officer in the West Bengal Judicial Service on the basis of his performance in the West Bengal Judicial Service Examination, 2007 forthwith within a period of four weeks from the date of communication of this order. (b) Notified vacancies for Schedule Tribe candidates in such service should be reduced by one immediately. Urgent certified photocopy of this judgment and order, if applied for, to be provided upon complying with all formalities. Later: Although, Mr. Ghosh prays for stay of operation of the order, I am of the view, considering the gravity of the matter that my decision should be tested in appeal. Therefore, I stay the operation of this order for a period of four weeks from date.