Judgment : PRANAB KUMAR CHATTOPADHYAY, J. Principal question to be decided in this appeal is whether the High Court was justified in refusing to issue posting orders in favour of these 9 (Nine) appellants who have been selected and recommended by the Public Service Commission, West Bengal on the basis of the results of the West Bengal Judicial Service Examination, 2009 for the post of Civil Judge (Junior Division) and subsequently appointed by the Prescribed Appointing Authority namely, the Governor of West Bengal. The facts giving rise to the present appeal are briefly stated hereinafter. The vacancies for recruitment in West Bengal Judicial Service in the rank of Civil Judge (Junior Division)/Judicial Magistrate for the year, 2009 were reported by the Registrar (Judicial Service), High Court, Calcutta to the Secretary, Judicial Department, Government of West Bengal by the written communication dated 13th January, 2009 pursuant to the direction of the Hon’ble Supreme Court in the case of Malik Mazahar Sultan & Anr. Vs. U. P. Service Commission & Ors. The aforesaid written communication of the Registrar (Judicial Service), High Court, Calcutta dated 13th January, 2009 is set out hereunder :- From : Shri R. S. Dutta, Registrar (Judicial Service) High Court, Appellate Side, Calcutta. To Dated, Kolkata, the 13th January, 2009. The Secretary to the Govt. of West Bengal, Judicial Department, Writers’ Buildings, Kolkata – 700 001. Sub: Reporting of vacancies for recruitment in W.B.J.S. in the rank of Civil Judge (Jr. Divn.)/Judicial Magistrate for the year 2009 as per direction of the Hon’ble Supreme Court in Civil Appeal No. 1867 of 2006 (Malik Mazahar Sultan & Anr. Vs. U. P. Service Commission & Ors.Sir, With reference to above subject, I am directed to report the following vacancies in the rank of Civil Judge (Jr. Divn.)/J. M. for initiation of the process of recruitment as per the schedule in the above quoted judgment. Vs. U. P. Service Commission & Ors.Sir, With reference to above subject, I am directed to report the following vacancies in the rank of Civil Judge (Jr. Divn.)/J. M. for initiation of the process of recruitment as per the schedule in the above quoted judgment. Approved Cadre Strength……… 375 Working Strength (-) 349 (as on 01.01.2009) 26 Vacancies that may arise in 2009 due to Retirement of W.B.J.S. Officer (+) 26 10% of the total Cadre Strength (-) 37 Total Vacancy… 89 Note : In view of the decision of the Supreme Court in the case of Malik Mazahar Sultan & another vs. U. P. Service Commission & others, further 37 Officers, being 10 percent of the total cadre strength of Civil Judge (Junior Division)/Judicial Magistrate, should also be shown in the calculation table for the purpose of declaration of vacancy and additional 37 persons should be kept in the panel so that in the event of any death, voluntary retirement and resignation of the existing officers or unwillingness on the part of the selected candidates to join in the service, such vacancy can be filled up from those additional 37 persons. Yours faithfully, Sd/- Registrar (Judicial Service) The Secretary-in-Charge (Judicial Department), Govt. of West Bengal, however, requested the Public Service Commission, West Bengal by the written communication dated 16th January, 2009 to take appropriate steps for filling up 63 vacancies on the basis of the results of the West Bengal Judicial Service Examination, 2009. The Public Service Commission thereafter issued advertisement for holding West Bengal Judicial Service Examination, 2009. In the said advertisement Public Service Commission, West Bengal specifically mentioned about the available vacancies. The relevant extracts from the aforesaid advertisement issued by the Public Service Commission are set out hereunder :- “Vacancies : (a) The number of vacancies arising in 2009 –26 (General – 19, BC02, SC-03, ST-01 and PH-01). (b) The number of vacancies which may arise due to death, voluntary retirement, resignation or unwillingness to join the service by selected candidates – 37 (General-27, BC-03, SC-04, ST-02 and PH-01. ”In response to the aforesaid advertisement, the appellants herein duly applied to the West Bengal Public Service Commission in prescribed form within the prescribed time for participating in the West Bengal Judicial Service Examination, 2009. ”In response to the aforesaid advertisement, the appellants herein duly applied to the West Bengal Public Service Commission in prescribed form within the prescribed time for participating in the West Bengal Judicial Service Examination, 2009. All the appellants herein thereafter participated in the West Bengal Judicial Service Examination, 2009 and were declared as qualified candidates by the Public Service Commission, West Bengal on the basis of the results of the said West Bengal Judicial Service Examination, 2009. The Secretary, Public Service Commission by the written communication dated 30th November, 2009 informed the Secretary-in-Charge, Judicial Department, Govt. of West Bengal about the preparation of the select list of 114 qualified candidates on the basis of the results of the West Bengal Judicial Service Examination, 2009. The relevant extracts from the aforesaid written communication of the Secretary, Public Service Commission, West Bengal are set out hereunder :- “PUBLIC SERVICE COMMISSION, WEST BENGAL 161-A, S. P. Mukherjee Road, Calcutta – 700 026. From : Sri A. K. Bhattacharya, Secretary, Public Service Commission, West Bengal. To The Secretary-in-Charge to the Govt. of West Bengal, Judicial Department, Writers’ Buildings, Kolkata – 700 001. Subject : Allotment of qualified candidates on the results of the West Bengal Judicial Service Examination, 2009. Sir, I am directed to refer to the Judicial Department Letter No. 342 – J/JD/1M-01/07 dated 16.01.09 on the subject noted above and to state that the Commission has prepared a select list of 114 candidates (copy enclosed) qualified on the results of the West Bengal Judicial Service Examination, 2009. I am now to communicate below the names of 25 candidates as recommended by the Commission from the said select list against 25 out 26 clear vacancies (Genl. – 19, B.C. – 02, S. C.- 03, S.T.- 01 & P.H. – 01) as mentioned in clause (a) in your letter under reference. The names have been arranged in order of merit. Allotment of candidate against 1 P.H. vacancy could not be made for want of qualified PH candidate. ……………………………………………..” The Secretary-in-Charge, Judicial Department, Govt. – 19, B.C. – 02, S. C.- 03, S.T.- 01 & P.H. – 01) as mentioned in clause (a) in your letter under reference. The names have been arranged in order of merit. Allotment of candidate against 1 P.H. vacancy could not be made for want of qualified PH candidate. ……………………………………………..” The Secretary-in-Charge, Judicial Department, Govt. of West Bengal thereafter, under Memo dated 1st December, 2009 forwarded a copy of the aforesaid written communication dated 30th November, 2009 received from the Public Service Commission relating to the allotment of qualified candidates on the basis of the results of the West Bengal Judicial Service Examination, 2009 and a select list of the said examination to the High Court for information and necessary action. In the said letter, Secretary-in-Charge specifically informed the Registrar (Judicial Service), High Court, Calcutta to the effect that the Judicial Department is processing the cases of 25 candidates against the clear vacancies and that of two cases against the vacancies arising out of death and resignation of two Civil Judges (Junior Division) during 2009. The aforesaid written communication of the Secretary-in-Charge, Judicial Department dated 1st December, 2009 is set out hereunder : Government of West Bengal Judicial Department No. 7971 – J JD/1M – 01/09 Part – I From : Shri A. K. Roy, Secretary-in-Charge to the Govt. of West Bengal. To : The Registrar (Judicial Service) High Court, Calcutta. Sub: Allotment of qualified candidates on the results of the West Bengal Judicial Service Examination, 2009. Ref : Your letter no. 237A dt. 13.01.2009. Sir, With reference to above, I am to forward herewith a copy of letter no. A-176/PSC (A) dt. 30.11.09 along with a copy of Announcement no. 54B con. IIA received from P.S.C., W.B., so far as it relates to the allotment of qualified candidates on the results of the West Bengal Judicial Service Examination, 2009 and a select list of the said Examination for information and necessary action of the Hon’ble Court. In this connection it is worthwhile to mention that this Department is processing the cases of 25 (twenty five) candidates for clear vacancies and that of two cases against the vacancies arising out of death and resignation of two Civil Judges (Jr. Division) during 2009. It is requested to furnish vacancy report of Civil Judge (Jr. In this connection it is worthwhile to mention that this Department is processing the cases of 25 (twenty five) candidates for clear vacancies and that of two cases against the vacancies arising out of death and resignation of two Civil Judges (Jr. Division) during 2009. It is requested to furnish vacancy report of Civil Judge (Jr. Division) well ahead enabling this Department to report vacancy to the P.S.C., W.B. for the said Examination, 2010 as per schedule fixed by the Hon’ble Apex Court in the matter. Yours faithfully, Sd/-Secretary-in-Charge Thereafter on 25th January, 2010 a notification was issued by the Judicial Department, Govt. of West Bengal wherein it was mentioned that the Hon’ble Governor of West Bengal was pleased to appoint 25 candidates as Civil Judges (Junior Division) in the West Bengal Judicial Service on temporary basis and provisionally for a period of three months pending police verification report in terms of Rule 8 of the West Bengal Judicial (Condition of Service) Rules 2004. In the said notification it was also mentioned that the persons who were being appointed had been recommended by the Public Service Commission, West Bengal on the basis of the results of the West Bengal Judicial Service Examination, 2009. It would appear from the aforesaid notification dated 25th January, 2009 that the appellant Nos. 1 to 7 were placed under List A between the serial nos. 9 and 25 and the names of the appellant nos. 8 & 9 were placed under List B at serial nos. 1 and 2. At this juncture, the Registrar (Judicial Service), High Court, Calcutta by written communication dated 27th January, 2010 informed the Secretary-in-Charge, Judicial Department, Govt. of West Bengal to offer appoint letter in respect of the 18 candidates and to keep the remaining 9 candidates in the waiting list for consideration of vacancies, if any, arise due to death, voluntary retirement or resignation of the existing officers or in the event of unwillingness of the selected candidates (s) to join the service. In the said communication it was also specifically made clear that the candidates included in the panel shall have no right to appointment. In the said communication it was also specifically made clear that the candidates included in the panel shall have no right to appointment. The aforesaid written communication of the Registrar (Judicial Service), High Court, Calcutta dated 27th January, 2010 is set out hereunder :- IN THE HIGH COURT AT CALCUTTA APPELLATE SIDE No. 222-A From : Sri Raghunath Bhattacharya, Registrar (Judicial Service), High Court, Appellate Side, Calcutta. To : Sri Asim Kumar Roy, Secretary-in-Charge, Government of West Bengal, Judicial Department, Writers’ Buildings, Kolkata – 700 001. Sir, With reference to your letter bearing No. 7971-J/JD/1M-01- 09 Part-I, dated 01.02.2009, I am directed to ask you to offer Appointment Letter in respect of the 18 (Eighteen) candidates from out of the select list for the post of Civil Judge (Junior Division) against the existing 18 (Eighteen) vacancies and that the remaining 9 (Nine) candidates be kept in the waiting list for consideration of vacancy, if any, arising due to death, voluntary retirement and resignation of the existing officers, or in the event of unwillingness of the selected candidate (s) to join the service, as indicated in the High Court’s letter No. 237-A dated 13.01.2009. However, it shall be made clear that the candidates included in such panel shall have no right to appointment. I am further directed to inform that it has been resolved that the names of additional 36 (Thirty Six) successful candidates forwarded by the State Government to the High Court be kept in the panel for consideration for vacancy, if any, arising due to death, voluntary retirement and resignation of the existing officers, or in the event of unwillingness of the selected candidate (s) to join the service, as indicated in the High Court’s letter No. 237-A dated 13.01.2009. However, it shall be made clear that the candidates included in such panel shall have no right to appointment. Yours faithfully, Sd/- (Registrar (Judicial Service) The Secretary-in-Charge, Judicial Department, Govt. of West Bengal received the aforesaid written communication on 28th January, 2010. However, it shall be made clear that the candidates included in such panel shall have no right to appointment. Yours faithfully, Sd/- (Registrar (Judicial Service) The Secretary-in-Charge, Judicial Department, Govt. of West Bengal received the aforesaid written communication on 28th January, 2010. Since the posting orders were not issued to the appellants herein even after being appointed by the prescribed appointing authority namely, the Governor of West Bengal pursuant to the selection and recommendation by the Public Service Commission, West Bengal on the basis of the results of the West Bengal Judicial Service Examination, 2009, a writ petition was filed before this High Court which was ultimately dismissed by the impugned judgment and order under appeal passed by a learned Judge of this court wherein the said learned Judge specifically held that the appellants herein have no right to be posted as Civil Judges (Junior Division)/Judicial Magistrates. Assailing the aforesaid judgment and order dated 18th May, 2011 passed by the learned Single Judge, instant appeal has been preferred. Mr. Shaktinath Mukherjee, learned senior counsel representing the appellants submitted that the posting orders in respect of the appellants should have been issued by the High Court, Calcutta immediately after receiving the communication with regard to their appointments by the Governor of West Bengal. Mr. Mukherjee submitted that the High Court has no authority to refuse posting orders to the appellants herein since they were duly appointed by the prescribed appointing authority under the Rules namely, the Governor of West Bengal pursuant to the selection made by the Public Service Commission, West Bengal and also on the basis of the recommendation of the said commission. Mr. Alok Ghosh representing the High Court, however, submitted that after completion of the selection process Govt. of West Bengal without ascertaining the actual position regarding available vacancies from the High Court Administration issued the notification in respect of the appointments of the 27 candidates in the rank of Civil Judge (Junior Division). Mr. Ghosh further submitted that if the posting orders are issued to the appellants herein then the sanctioned strength for the post of Civil Judge (Junior Division) would exceed. Mr. Ghosh specifically submitted before this court that the State Government before issuing the notification for appointment did not bother to consult the High Court in due compliance with the provisions of Rule 8 of the West Bengal Judicial (Conditions of Service) Rules 2004. Mr. Mr. Ghosh specifically submitted before this court that the State Government before issuing the notification for appointment did not bother to consult the High Court in due compliance with the provisions of Rule 8 of the West Bengal Judicial (Conditions of Service) Rules 2004. Mr. Ghosh also urged before this court that the appointment given to a candidate by the State Government cannot create any right in his favour to claim posting on the basis of such appointment. Mr. Ghosh also submitted that there was no clear vacancy for the year 2008 in the rank of Civil Judge (Junior Division) and only 49 anticipated vacancies were reported by the Registrar (Judicial Service), High Court to the Joint Secretary, Judicial Department, Govt. of West Bengal by the written communication dated 3rd April, 2008. Mr. Ghosh submitted that the Judicial Department, Govt. of West Bengal issued two notifications both dated 26th May, 2009 whereby appointments were given to total 51 candidates to the post of Civil Judge (Junior Division). Mr. Ghosh referred to the minutes of the meeting of the Administrative Committee of the High Court held on 28th October, 2009 and submitted that the High Court specifically passed a resolution in the aforesaid Administrative Committee meeting to the effect that mere sending a copy of the merit list to the High Court cannot be said to be proper consultation with the High Court in terms of the Rules. The learned counsel of the High Court submitted that in order to avoid any hardship to the candidates already appointed by the Government on the basis of the results of the West Bengal Judicial Service Examination, 2008, posting orders were issued to those 51 candidates as a result whereof the working strength in the rank of Civil Judge (Junior Division) became 357 out of total sanctioned strength of 375. Therefore according to Mr. Ghosh only 18 vacancies were available for appointment by the candidates selected for the year 2009. Mr. Ghosh submitted that in total disregard to the aforesaid resolution of the Administrative Committee of the High Court dated 28th October, 2009 and in gross violation of the Rules 8 and 9 of the West Bengal Judicial (Conditions of Service) Rules 2004, notification was issued by the State Government on 21st January, 2010 appointing 27 candidates as Civil Judge (Junior Division). Mr. Mr. Ghosh Submitted that in the aforesaid notification dated 21st January, 2010 it was wrongly recorded that the candidates in the List-A were for clear vacancies and those in the List-B were for the vacancy arising out of the resignation etc. Mr. Ghosh specifically submitted before this court that the posting orders cannot be issued in favour of the 9 appellants herein in view of the resolution passed by the Administrative Committee of the High Court in its meeting held on 6th December, 2010. Mr. Ghosh also submitted that the select list for the year 2009 has become invalid and steps have already been taken for filling up the vacancies available during the year 2010 on the basis of the results of the West Bengal Judicial Service Examination, 2010. Mr. Ghosh urged before this court that the recruitment process and appointment process are two different stages and no effective consultation was held between the Government and the High Court before appointment of the appellants herein. Mr. Ghosh submitted that the consultation with the High Court cannot mean consultation with the Chief Justice. Mr. Ghosh relied on a decision of the Supreme Court in the case of N. KannadasanVs. Ajoy Khose, reported in (2009) 7 SCC 1 . Mr. Ghosh further submitted that judicial direction for filling up the post of judicial officers is not proper. Mr. Ghosh relied on a decision of the Supreme Court in the case of Govt. of Orissa vs. Haraprasad Das & Ors., reported in (1998) 1 SCC 487 Para – 9. Mr. Ghosh also submitted that the selectees cannot claim appointment as a matter of right and relied on the decision of the Supreme Court in the case of State of U. P. & Ors. Vs. Raj Kumar Sharma & Ors., reported in (2006) 3 SCC 330 . Mr. Ghosh referred to the decision of the Supreme Court in the case of Madanlal Vs. State of J & K and Ors., reported in AIR 1995 SC 1088 and submitted that merit list gets exhausted when all the vacancies are filled up. In the present case, according to Mr. Ghosh, all the vacancies for the year, 2009 have already been filled up and therefore, the appellants herein cannot have any right to claim posting orders in view of their position in the select list. Mr. In the present case, according to Mr. Ghosh, all the vacancies for the year, 2009 have already been filled up and therefore, the appellants herein cannot have any right to claim posting orders in view of their position in the select list. Mr. Ghosh also submitted that no writ can be issued on the basis of sympathy and in absence of legal right. Mr. Ghosh relied on a decision of the Supreme Court in the case of State of M. P. Vs. Sanjoy Kr. Pathak, reported in (2008) SCC 456 in this regard. Mr. Anindya Mitra, learned Advocate General appearing on behalf of the State Respondents submitted that for the purpose of appointment of Civil Judge (Junior Division), first step was to ascertain actual vacancies available for the year 2009. Referring to the written communication of the Registrar (Judicial Service) dated 13th January, 2009,Mr. Mitra submitted that the High Court intimated the vacancy available for appointment to the post of Civil Judge (Junior Division) is as follows :- “Total cadre strength 375 Less: Actual working strength 349 26 Vacancies arising in 2009 due to retirement 26 10% of total cadre strength 37 89” The above intimation of the High Court was clarified by the learned advocate of the High Court. Mr. Alok Ghosh who stated that only 63 vacancies were available for the year 2009. According to the learned advocate of the High Court, 26 vacancies which may arise due to retirement during the year 2009 were included in the 37 anticipated vacancy and therefore the said 27 vacancies arising out of the retirement in the year 2009 should not be calculated separately. Mr. Mitra, learned Advocate General submitted that the consensus was reached between the State Government and the Hon’ble High Court that the actual vacancies to be filled up in the year 2009 for the post of Civil Judge (Junior Division) would be 63 (26 actual vacancies and 37 anticipated vacancies). Public Service Commission was also intimated about the aforesaid actual vacancies for taking necessary steps. The learned Advocate General submitted that in the aforesaid manner consensus was reached between the High Court and the State Government at the very first stage with regard to the actual vacancies to be filled up for the year 2009. Public Service Commission was also intimated about the aforesaid actual vacancies for taking necessary steps. The learned Advocate General submitted that in the aforesaid manner consensus was reached between the High Court and the State Government at the very first stage with regard to the actual vacancies to be filled up for the year 2009. On 16th January, 2009 the State Government communicated to the Public Service Commission about the aforesaid 63 available vacancies to the post of Civil Judge (Junior Division). The Public Service Commission, West Bengal also issued public advertisements in several newspapers for holding West Bengal Judicial Service Examination, 2009 for filling up 26 clear vacancies and 37 anticipated vacancies in the year 2009. Thereafter the Public Service Examination conducted the West Bengal Judicial Service Examination, 2009. The selection committee was also constituted for holding the personality test or the West Bengal Judicial Service Examination, 2009 which comprised of a Sitting Judge of the High Court, representative of the Public Service Examination and the representative of the State Government. The learned Advocate General submitted that even at this stage of the process of selection, the High Court was duly conscious. The learned Advocate General further submitted that the selection committee published the names of 25 candidates in order of merit out of 26 clear vacancies and 36 candidates against the anticipated vacancies and the said select list was prepared by the Selection Committee of which a Sitting Judge of the High Court was a member. According to learned Advocate General there was consensus even at the stage of preparation of select list. The due date for publication of the select list was 1st November, 2009 as per the Supreme Court judgment in Malik Mazahar Sultan’s case, reported in (2008)17 SCC 703 and therefore, there was a delay of 30 days since the said select list was required to be published on 30th November, 2009. The learned Advocate General submitted that on 1st December, 2009 select list was forwarded by the State Government to the High Court for information and necessary action with a clear intimation that the State Government is processing the cases of 25 candidates against 26 clear vacancies and two cases against the available vacancies arising out of the death and resignation of two Civil Judges (Junior Division) in 2009. Thus, according to learned Advocate General, High Court was again consulted. Thus, according to learned Advocate General, High Court was again consulted. The learned Advocate General submitted that the High Court did not ask the State Government not to process the cases of 25 candidates for filling up the actual vacancies. Learned Advocate General also submitted that the State Government never received any intimation from the High Court that the number of actual vacancies would be less than 25 for the year 2009. Learned Advocate General submitted that the intimation dated 1st December, 2009 was given by the State Government to the High Court for information and also for the purpose of necessary consultation. According to the learned Advocate General, if the High Court took any different view regarding the actual number of vacancies to be filled up in the year 2009, it was for the High Court to inform the State Government accordingly. Mr. Mitra submitted that the due date for appointment to the post of Civil Judge (Junior Division) for the year 2009 was 1st December, 2009 in terms of Malik Mazahar Sultan’s case (supra). The learned Advocate General also submitted that on 21st January, 2010 the State Government issued appointment order on the basis that the High Court had no objection to the appointment of 25 persons to fill up the clear vacancies as recommended by the Public Service Commission. The State Government made the appointment of 25 persons against the 26 clear vacancies available for the year 2009 and two candidates against the anticipated vacancies arising out of resignation/death-in-harness. On the same day, i.e. on 21st January, 2009 the State Government communicated the notification regarding appointment of 27 candidates provisionally for three months to the High Court. It has been submitted on behalf of the State respondents that the select list was prepared in consultation with the Sitting Judge of the High Court and the same was duly published by the Public Service Commission. The learned Advocate General submitted that the Public Service Commission, West Bengal forwarded the list of qualified candidates to the State Government and the said list was published for the general information under Rule 9 of the West Bengal Judicial (Conditions of Service) Rules 2004. The learned Advocate General submitted that the Public Service Commission, West Bengal forwarded the list of qualified candidates to the State Government and the said list was published for the general information under Rule 9 of the West Bengal Judicial (Conditions of Service) Rules 2004. The learned Advocate General categorically submitted that neither the Public Service Commission nor the State Government or the High Court had any discretion in the matter of appointment since appointment was made in order of merit from the select list. Learned Advocate General further submitted that the issuance of appointment order by the Judicial Department was a mere ministerial work. The learned Advocate General submitted that the order of appointment as notified on 21st January, 2010 is in compliance with Rule 8 as also Rule 9 (2) of the West Bengal Judicial (Conditions of Service) Rules 2004 and the State Government has not done anything wrong in issuing the order of appointment under the aforesaid notification dated 21st January, 2010. It has been submitted by the learned Advocate General that the Registrar (Judicial Service), High Court, Calcutta by the written communication dated 27th January, 2010 asked the State Government to appointment 18 candidates only knowing fully well that the appointment of 25 officers against 26 clear vacancies and two officers against the anticipated vacancies on account of death/resignation had already been made by the State Government. The learned Advocate General submitted that the minutes of the meeting of the Administrative Committee of the High Court dated 13th January, 2010 was enclosed with the aforesaid letter dated 27th January, 2010 and thus for the first time the same was disclosed to the State Government. The learned Advocate General further submitted that the State Government did not know earlier that the Administrative Committee of the High Court had decided in favour of 18 candidates only. Learned Advocate General also submitted that in the aforesaid letter dated 27th January, 2010 no attempt was made to demonstrate that the appointment of 27 candidates as per notification dated 21st January, 2010 was made without consultation with the High Court. The learned Advocate General submitted that out of the aforesaid list of 27 (25 + 2) candidates mentioned in the appointment order dated 21st January, 2010, the High Court issued posting orders in favour of 18 candidates on 31st March, 2010. The learned Advocate General submitted that out of the aforesaid list of 27 (25 + 2) candidates mentioned in the appointment order dated 21st January, 2010, the High Court issued posting orders in favour of 18 candidates on 31st March, 2010. According to the learned Advocate General, aforesaid posting orders in favour of 18 candidates could not have been issued by the High Court if it was really felt by the High Court that the appointment order dated 21st January, 2010 was made without consulting the High Court. The learned Advocate General specifically urged before this Court that if the High Court really felt that the appointment was made without consultation with the High Court then the High Court would not have made any appointment whatsoever out of the aforesaid appointment order dated 21st January, 2010 and would not have resorted to absorption. The learned Advocate General discussed the reasons for the present anomalous situation. The learned Advocate General submitted that undisputedly, 26 clear vacancies were available to the post of Civil Judge (Junior Division) for the year 2009 when the selection process was started on 13th January, 2010. According to the learned Advocate General, difficulty was created because on 28th October, 2009 Administrative Committee of the High Court passed a resolution for giving posting to the 51 candidates who were selected out of the 2008 Judicial Service Examination. Learned Advocate General specifically submitted that the aforesaid resolution of the Administrative Committee for absorbing 51 candidates selected out of the Judicial Service Examination held on 2008 against the vacancies available for 2009 is the real cause for the present anomalous situation. Learned Advocate General submitted that significantly, the High Court even after October, 2009 did not inform either the Public Service Commission or the State Government during the process for recruitment for the year 2009 about the availability of 18 candidates only. The select list was published on 30th November, 2009 by the Public Service Commission in consultation with the High Court representative and the Government representative. The select list was forwarded to the High Court on 1st December, 2009. The learned Advocate General also submitted that the High Court did not point out either the Public Service Commission or the State Government that instead of 27 (25 + 2) candidates, the vacancies should be filled up for only 18 candidates. The select list was forwarded to the High Court on 1st December, 2009. The learned Advocate General also submitted that the High Court did not point out either the Public Service Commission or the State Government that instead of 27 (25 + 2) candidates, the vacancies should be filled up for only 18 candidates. It has been submitted by the learned Advocate General that after finalization and publication of the select list, there is hardly any scope for any further consultation inasmuch as under Rule 9 (2) appointments have to be made in order of merit out the select list and there is no discretion left with anybody in the matter of issuance of the formal order of appointment. The learned Advocate General referred to and relied on a decision of the High Court in the case of Hindustan Zinc Ltd. Vs. A. P. Electricity Board & Ors., reported in AIR 1991 SC 1473 , in support of his argument. In the aforesaid case the revision of tariff was effected without consulting the Consultation Council. The Hon’ble Supreme Court held that revision of tariff was a question of policy under Section 78A of the Indian Electricity Supply Act. The question arose whether the failure of board to consult with Consultation Council rendered revision of tariff invalid. It was held that the consequence of no consultation was not provided and the nature of function of the Consultation Council and its advice being only persuasive, it cannot be said that the revision of tariff without seeking advice of the Consultation Council rendered the revision of tariff itself invalid. From the available records it is clear that initially on behalf of the High Court by the written communication dated 13th January, 2009 Registrar (Judicial Service) informed the Judicial Department, Govt. of West Bengal for initiating the process of recruitment in respect of 89 vacant posts and subsequently, the State Government by the written communication dated 16th January, 2009 informed the Public Service Commission, West Bengal for taking appropriate steps for filling up 63 vacancies only. The learned Advocate General has rightly submitted that only 63 vacancies were available in the year 2009 out of which 26 were clear vacancies and 37 were anticipated vacancies. The aforesaid position was accepted by the High Court. The learned Advocate General has rightly submitted that only 63 vacancies were available in the year 2009 out of which 26 were clear vacancies and 37 were anticipated vacancies. The aforesaid position was accepted by the High Court. Learned Advocate representing the High Court specifically admitted before us that 26 clear vacancies and 37 anticipated vacancies were available for the year 2009 and the State Government has rightly reported the Public Service Commission for filling up 63 vacancies out of which 26 were actual clear vacancies and 37 were anticipated vacancies. The actual number of vacancies to be filled up for the year 2009 was initially assessed by the High Court and reported to the Judicial Department, Govt. of West Bengal by the Registrar (Judicial Service) pursuant to the direction of the High Court which has been specifically mentioned by the Registrar (Judicial Service) in the aforesaid written communication dated 13th January, 2009. The learned advocate representing the High Court Administration however, admitted that only 63 vacancies were available for the year 2009 and there was no dispute with the State Government in this regard since the State Government also by the written communication dated 16th January, 2009 requested the Public Service Commission to take appropriate steps for filling up 26 clear vacancies and 37 anticipated vacancies i.e. 63 total vacancies. Therefore, the consensus was reached between the State Government and the High Court in assessing the actual vacancies to be filled up in the rank of Civil Judge (Junior Division) in the year 2009. It may be mentioned herein that 42 officers were promoted in the year 2009 as a result whereof further 42 posts were made available in the year 2009 which were required to be filled up by the candidates selected for the year 2009. The Registrar General of the High Court filed an affidavit before the learned Single Judge in connection with the writ petition wherein the aforesaid fact regarding promotion of 42 officers have been admitted. The relevant extracts from the affidavit filed by the Registrar General, High Court, Calcutta are set out hereunder :- “It is on record that the working strength as on 1st January, 2009 was 349. Since one Officer joined the post, the working strength became 350. In the meantime by a Notification bearing No. 2888 – A dated 22nd May, 2009, 42 officers in the rank of Civil Judge (Jr. Since one Officer joined the post, the working strength became 350. In the meantime by a Notification bearing No. 2888 – A dated 22nd May, 2009, 42 officers in the rank of Civil Judge (Jr. Division) were appointed to the post of Civil Judge (Sr. Division) on promotion. Therefore, as on 22nd May, 2009 working strength became 308 (i.e. 349 + 1 – 42 = 308). It has been mentioned in the minutes of the meeting of the Administrative Committee of the High Court held on 28th October, 2009 that there was no effective consultation with the High Court before issuance of the appointment orders to the candidates even though the appointments have been made in terms of the merit determined by the West Bengal Public Service Commission. In the said resolution, Administrative Committee also recorded “in order to avoid any hardship to the candidates already appointed, let the matter be placed before the Transfer Committee for giving the posting.” On 28th October, 2009 or in the subsequent resolution dated 13th January, 2010 neither any decision was taken nor any indication was given that vacancies of 2009 were diverted for appointment of the candidates of 2008. It does not appear from the records that there was any consultation for accommodating the candidates selected in the year 2008 against the available vacancies for the year 2009. The Registrar (Judicial Service) in the written communication dated 13th January, 2009 specifically mentioned against the heading “Sub” as hereunder:- “Reporting of vacancies for recruitment in W.B.J.S. in the rank of Civil Judge (Jr. Division)/Judicial Magistrate for the year 2009 as per direction of the Hon’ble Supreme Court in Civil Appeal No. 1867 of 2006 (Malik Mazahar Sultan & Anr. Vs. U. P. Service Commission & Ors.)” The said Registrar (Judicial Service) in the first paragraph of the aforesaid letter stated :- “With reference to above subject, I am directed to report the following vacancies in the rank of Civil Judge (Jr. Division)/J. M. for initiation of the process of recruitment as per the schedule in the above quoted Judgement.” Therefore, while finalizing the vacancies, High Court was not only consulted by the State Government but as a matter of fact the High Court initiated the process of recruitment by reporting the number of vacancies available for recruitment in the rank of Civil Judge (Junior Division)/Judicial Magistrate for the year 2009. There was no dispute that the recruitment for the year 2009 was undertaken by the Public Service Commission in view of the reporting of the vacancies by the High Court itself. It is further not in dispute that under the West Bengal Civil Service (Judicial) Rules 1951 as amended from time to time, a sitting Judge of the High Court nominated by the Chief Justice shall be one of the members of the Selection Committee and his opinion shall not be disregarded unless there are strong and cogent reasons for not accepting the opinion. Rule 8 (1) of the West Bengal Judicial (Conditions of Service) Rules 2004 provides :- “8. Appointment (I) The appointment to any of the posts as mentioned in clause (a) of sub-rule (1) of rule 6, shall be made by the Governor in accordance with the West Bengal Civil Service (Judicial) Recruitment Rules, published with this Department notification no. 1713-J, dated 31st March, 1951, as subsequently amended, after consultation with the High Court and the Commission.” The selection of candidates was made with the active participation of a Sitting Judge of the High Court nominated by the Chief Justice. The panel of successful candidates was prepared and forwarded to the State Government by the Public Service Commission and the State Government also forwarded the said select list to the High Court. There is no dispute that in terms of Article 234 of the Constitution and under Rule 8 of the West Bengal Judicial (Conditions of Service) Rules 2004 consultations with the Public Service Commission, West Bengal and the High Court are necessary for the appointments to the posts of Civil Judge (Junior Division)/Judicial Magistrate. Under Rule 9 of the aforesaid Rules 2004 appointments are to be made from the list of candidates recommended by the Public Service Commission. Going through the provisions of West Bengal Judicial (Conditions of Service) Rules 2004 we do not find any further scope for consultation either with Public Service Commission or with the High Court after preparation and submission of the select list. Neither the Public Service Commission, West Bengal nor the High Court, Calcutta can claim any right of consultation contrary to the scheme and provisions of Article 234 and Rule 8 of the West Bengal Judicial (Conditions of Service) Rules, 2004. Neither the Public Service Commission, West Bengal nor the High Court, Calcutta can claim any right of consultation contrary to the scheme and provisions of Article 234 and Rule 8 of the West Bengal Judicial (Conditions of Service) Rules, 2004. In terms of the aforesaid Rules of 2004, a recruitment process should be undertaken on the basis of determination of available vacancies and reporting thereof for initiation of recruitment process which has also been approved by the Hon’ble Supreme Court in the case of Malik Mazahar Sultan (supra). After preparation of the select list by the Public Service Commission on the basis of the results of the West Bengal Judicial Service Examination conducted by the said commission and forwarding the same to the State Government, neither the State Government nor the High Court nor even Public Service Commission can have any role to play except to act in accordance with the Rules particularly the Rule 9. Rule 9 contemplates appointment by the State Government and such power to appoint assigned to the State Government is obviously required to be exercised in accordance with the Rules. It cannot be disputed that the Administrative Committee of the High Court acted contrary to the Rules in order to accommodate the ineligible candidates against clear vacancies and 42 promotional vacancies in the year 2009 which could be filled up only by the recruits of 2009. The learned Advocate General has rightly submitted before us that for the purpose of appointment to the post of Civil Judge (Junior Division) High Court was consulted at every stage right from finalization of the vacancies till the processing of the cases of the candidates selected and recommended by the Public Service Commission for the year 2009 for appointment against the declared clear vacancies. The learned Single Judge while deciding the writ petition has totally ignored the relevant issues. The learned Single Judge unfortunately failed to appreciate that the High Court by the notification dated 22nd May, 2009 promoted 42 officers in the rank of Civil Judge (Junior Division) to the post of Civil Judge (Senior Division) and thus, the total number of clear vacancies in the year 2009 enhanced from 26 to 68. Two other vacancies arose during the said year in the rank of Civil Judge (Junior Division) on account of the death of Asit Kr. Two other vacancies arose during the said year in the rank of Civil Judge (Junior Division) on account of the death of Asit Kr. Dey (ii) on 07/08/2009 and due to resignation of Judicial Officer Basra Adil Rizqi on 20/08/2009. So, the clear vacancies in the rank of Civil Judge (Junior Division) for the year 2009 cannot be less than 68 + 2 = 70. The learned Single Judge should have appreciated that the candidates selected against the declared vacancies could not be denied the benefit of appointment. The learned Single Judge should have also appreciated that all the available vacancies in the rank of Civil Judge (Junior Division)/Judicial Magistrate for the year 2009 were not filled up by the candidates selected and recommended by the Public Service Commission, West Bengal on the basis of the results of the West Bengal Judicial Service Examination, 2009 as the 2008 candidates, whose appointments were disputed, were accommodated. The learned Single Judge erroneously declared the claims of the appellants herein to be illegal merely because the substantial part of the available vacancies of 2009 were illegally diverted to accommodate 2008 candidates ignoring the need to accommodate the successful candidates from the select list of 2009 prepared and forwarded by the Public Service Commission who suffered for no fault of their own. Rule 9 of the West Bengal Judicial (Conditions of Service) Rules, 2004. “9. LIST OF CANDIDATE RECOMMENDED BY COMMISSION:- (1) The Commission shall, on the basis of the examination conducted by it, forward to the Government a list of qualified candidates in order of merit and such list shall be published for the general information. Rule 9 of the West Bengal Judicial (Conditions of Service) Rules, 2004. “9. LIST OF CANDIDATE RECOMMENDED BY COMMISSION:- (1) The Commission shall, on the basis of the examination conducted by it, forward to the Government a list of qualified candidates in order of merit and such list shall be published for the general information. (2) Subject to any other provision of these rules, each of such candidates shall be considered for appointment to the available vacant posts as mentioned in clause (a) of sub-rule (1) of rule 6, in the order in which their names appear in the merit list.” It is clearly a patent illegality that the select list duly prepared and recommended by the Pubic Service Commission for filling up the posts which were admittedly vacant at the commencement of the year 2009 and those which fell vacant during the year 2009, disappeared to the utter dismay of the selected candidates and the appellants herein being duly selected and recommended by the Public Service Commission and subsequently, appointed by the prescribed appointing authority namely, the Governor of West Bengal were denied posting orders by the High Court ignoring the fact that the vacant posts available during the year 2009 could not be filled up by the candidates of the previous year. The plea that a selected candidate has no right to get an appointment has no application in the instant case since the appellants herein have been duly appointed by the competent appointing authority in strict compliance with the Rules. The decisions cited by the learned counsel of the High Court have no manner of application in the facts of the present case. The High Court cannot refuse posting orders to the duly appointed candidates of the year 2009. The issue regarding non-availability of the vacant posts to accommodate the appellants herein being the duly selected and appointed candidates of 2009 is the creation of the High Court. The High Court sought to deprive the rightful and legitimate claims of the appellants herein in order to accommodate the candidates of 2008 whose appointments are very much disputed. The issue regarding non-availability of the vacant posts to accommodate the appellants herein being the duly selected and appointed candidates of 2009 is the creation of the High Court. The High Court sought to deprive the rightful and legitimate claims of the appellants herein in order to accommodate the candidates of 2008 whose appointments are very much disputed. The appellants were unfortunately denied posting orders by the High Court on the ground of non-availability of the vacant posts although the High Court pursuant to its erroneous decision issued posting orders to 51 candidates of the year 2008 in order to minimize their hardship ignoring the fact that the appellants herein have been selected and recommended by the Public Service Commission and subsequently, appointed by the Government of West Bengal against the declared vacant posts for the year 2009. Undisputedly, the High Court by its erroneous decision, deprived the appellants herein of their rightful and legitimate claim. It is most unfortunate and if not ridiculous to suggest that a candidate even after being duly selected and recommended by the Public Service Commission against the declared vacancies and subsequently, appointed by the prescribed appointing authority namely, the Governor of West Bengal is not entitled to a posting order. The then Minister-in-Charge, Judicial Department, Government of West Bengal had shown his concern for the ill-fated appellants who were denied posting orders by the High Court in spite of being appointed by the Governor of West Bengal. The aforesaid concern shown by the then Minister-in-Charge cannot be regarded as unwarranted interference with the Administration of the High Court as has been erroneously observed by the learned Single Judge. We, however, do not find any wrong with the written communication of the then Minister-in-Charge, Judicial Department to the Chief Justice of this Court in order to resolve the problems due to non-issuance of the posting orders in favour of the appellants herein. We also cannot overlook the fact that the Administrative Committee of the High Court refused to issue posting orders in favour of the 9 appellants herein without giving any opportunity of hearing although the said 9 appellants were duly appointed by the competent appointing authority namely, the Governor of West Bengal. We also cannot overlook the fact that the Administrative Committee of the High Court refused to issue posting orders in favour of the 9 appellants herein without giving any opportunity of hearing although the said 9 appellants were duly appointed by the competent appointing authority namely, the Governor of West Bengal. The High Court by taking the aforesaid unfortunate decision regarding non-issuance of the posting orders to the appellants herein have violated the principle of natural justice and procedural justice as enshrined under Articles 14 and 16 of the Constitution of India since the affected parties namely the appellants herein were not heard by the High Court before taking the aforesaid decision which seriously prejudiced the interests of the appellants herein. The learned single Judge also failed to take note of the aforesaid important factor while deciding the writ petition filed by the appellants herein. For the reasons discussed hereinabove, we are satisfied that the High Court was duly consulted in terms of Rule 8 of the West Bengal Judicial (Conditions of Service) Rules, 2004 for the purpose of appointing the selected and recommended candidates of the Public Service Commission including the appellants herein on the basis of the results of the West Bengal Judicial Service Examination, 2009 and therefore, the High Court cannot refuse to issue posting orders to the appellants herein. In the aforesaid circumstances, the impugned judgment and order under appeal passed by the learned Single Judge cannot be sustained and the same is accordingly set aside. The respondent nos. 1 to 3 herein are directed to issue posting orders in favour of the appellants herein without any further delay but positively within a period of 3 weeks from date against the vacant posts available at this moment. If necessary, the High Court will ask the State Government to create required number of supernumerary posts for accommodating the 9 appellants herein. Needless to mention that if supernumerary posts are required to be created for accommodating the appellants in terms of this order for a period of few months then such posts can be adjusted against the future available vacancies which have not yet been advertised for recruitment by the Public Service Commission. With the aforesaid directions, this appeal stands allowed. Needless to mention that if supernumerary posts are required to be created for accommodating the appellants in terms of this order for a period of few months then such posts can be adjusted against the future available vacancies which have not yet been advertised for recruitment by the Public Service Commission. With the aforesaid directions, this appeal stands allowed. Since the appeal has been decided in presence of the learned counsel of the Interveners namely, the applicants in the application being G.A. No. 1805 of 2011 filed in connection with the instant appeal, we are of the opinion that no formal order is required to be passed imp leading the said applicants as parties to the appeal. Accordingly the aforesaid application is also disposed of without any further direction. In the facts of the present case, there will be however, no order as to costs.