JUDGMENT C.R. Sarma, J. 1. The appointment of the respondent No. 5 as the Assistant Teacher of the Anath Ashram L.P. School (hereinafter referred as the "school') against the retirement vacancy of Sri Krishna Bashak, has been challenged in this writ petition, by the petitioners. On 10.12.2009, an advertisement was made by the respondent No. 4, inviting candidature from qualified persons for a post of Assistant Teacher of the School. The last date for submission of application was 16.12.2009. In response to the said advertisement, the petitioners, the respondent No. 5 and others applied. This process was initiated to fill up the anticipated retirement vacancy of Sri Ranjit Kr. Deb, who was due to retire on 01.03.2010. 2. The Managing Committee of the School, in its meeting, held on 07.03.2010, constituted a Selection Committee for selecting the candidates and by its resolution, dated 25.04.2010, the Managing Committee of the School, i.e. the respondent No. 4, after receipt of the report of the Selection Committee, decided to call, those candidates, who have secured 30% and above marks in written examination, for oral interview and constituted an Interview Board of five members, for holding the oral interview. The Board, accordingly, after holding oral interview, prepared a penal of three candidates and placed the same before the respondent No. 4. The petitioners failed to qualify for the oral interview. 3. The respondent No. 4, on 19.09.2010, while accepting the penal of three candidates, which included the respondent No. 5 as the second selected candidate, in order of merit, took a decision to keep the said penal valid for one year, on the ground that another retirement vacancy was expected soon. Accordingly, the committee decided to move the Education Department seeking approval for appointment against two retirement vacancies. 4. Upon receipt of the approval, Smti Rinapaul, who stood first, in order of merit, was appointed against, the retirement vacancy of Sri Ranjit Kr. Deb and the respondent No. 5, who stood second in order of merit was appointed against the retirement vacancy of Sri Krishna Basak. As the said vacancy of Sri Krishna Basak was filled up by appointing the respondent No. 5, the petitioners have challenged her appointment, on the ground that the post was filled up without advertisement, inasmuch as the selection was made on the basis of the advertisement dated 10.12.2009, which was made for one post. As the said vacancy of Sri Krishna Basak was filled up by appointing the respondent No. 5, the petitioners have challenged her appointment, on the ground that the post was filled up without advertisement, inasmuch as the selection was made on the basis of the advertisement dated 10.12.2009, which was made for one post. Prayer has been made, in this writ petition, for cancellation of the said appointment and pass order for fresh advertisement. 5. The respondent No. 4 contested the petitioners' case by filing an affidavit-in-opposition. In its affidavit-in-opposition, the contesting respondent No. 4, stated, that the petitioners obtained 27 and 28 marks respectively in all the four papers out of 100 marks and as such they, having failed to obtain the qualifying marks 30 in written test, were not called for interview, that the Selection Committee selected 3 (three) candidates, including the respondent No. 5 (second), in order of merit, that the Managing Committee, i.e. respondent No. 4, as per prevailing, practice, decided to fill up another expected vacancy (retirement vacancy) arising due to retirement of Smti Krishna Basak w.e.f. 31.01.2011 and accordingly moved the Government for approval. It has also been averred that the School, being a Government aided school, could not afford to advertise the posts time and again. The contesting respondent denied the allegations, that by appointing the respondent No. 5, the petitioners were deprived of their right to participate in the selection process, inasmuch as they, after participating in the selection process, failed to qualify for selection. It has also been contended by the respondent No. 4 that no discrimination or favoritism has been done in appointing the respondent No. 5 and that the father of the respondent No. 5, who was the Head Master of the School, did not participate in the selection process, aforesaid. 6. The respondent No. 4, by filing an additional affidavit, submitted that advertisement for filling up another post has already been made on 20.07.2012 and 21.07.2012 allowing 15 (fifteen) days time for submission of applications and that the writ petitioners, despite getting another opportunity to offer their candidature have not applied in respect of the said advertisement. 6. The respondent No. 4, by filing an additional affidavit, submitted that advertisement for filling up another post has already been made on 20.07.2012 and 21.07.2012 allowing 15 (fifteen) days time for submission of applications and that the writ petitioners, despite getting another opportunity to offer their candidature have not applied in respect of the said advertisement. Therefore, it is submitted that the writ petitioners' claim that they have been deprived from participating in the selection process and to get a job is not sustainable and as such, they have no right to challenge the appointment of respondent No. 5. The respondent No. 4 has also expressed that it has no objection if the petitioners are permitted to apply for the said post within a reasonable time. 7. In their rejoinder, the writ petitioners, claiming their locus-standi stated that they have been deprived from participating in selection process for the second post, which was filled up without advertisement and that the appointment of the respondent No. 5 was arbitrary and illegal and that the same is liable to be quashed. 8. I have heard Mr. S.D. Upadhyaya, learned Counsel, appearing for the petitioners and Mr. V.K. Jindal, learned senior Counsel, assisted by Ms. Q.B. Lamare, learned Counsel, appearing for the respondent No. 4. 9. Mr. Upadhayay, learned Counsel, appearing for the petitioners, has submitted that only one post being advertised, inviting candidature for filling up the said post, the appointment of two persons was illegal and arbitrary and that the act, on the part of the respondent No. 4, has deprived the petitioners from applying for the 2nd post and thus, the constitutional mandate of equal opportunity has been denied to the petitioners. It is submitted that the father of the respondent No. 2, being the Head Master and Joint Secretary of the school, the act of selection and appointment of the respondent No. 4 was bias and prompted by favoritism. In view of the above, the petitioners have prayed for an order setting aside the impugned appointment of the respondent No. 5 and also for a direction to re-advertise the said post. 10. In support of his contention, the learned Counsel, appearing for the petitioners has relied on the following decisions: 1. Anupam Chowdhury Vs. State of Tripura & Ors., 2009 (3) GLT 60. 2. A.P. Public Service Commission, Hyderabad & Anr. Vs. 10. In support of his contention, the learned Counsel, appearing for the petitioners has relied on the following decisions: 1. Anupam Chowdhury Vs. State of Tripura & Ors., 2009 (3) GLT 60. 2. A.P. Public Service Commission, Hyderabad & Anr. Vs. B. Sarat Chandra & Ors., (1990) 2 SCC 669 . 3. State of Orissa & Anr. Vs. Rajkishore Nanda & Ors:, (2010) 6 SCC 777 4. State of Bihar Vs. Upendra Narayan Singh & Ors., (2009) 5 SCC 65 . 5. Rakhi Ray & Ors. Vs. High Court of Delhi & Ors., (2010) 2 SCC 637 . 6. State of Orissa & Anr. Vs. Mamata Mohanty, (2011) 3 SCC 436 . 11. Refuting the argument, advanced by Mr. Upadhyay, learned Counsel for the petitioners, Mr. Jindal, learned senior Counsel the respondent No. 5, has submitted that as the petitioners, who failed to qualify for the interview, have no locus-standi to challenge the selection and appointment of the respondent No. 5. 12. The learned senior Counsel has also submitted that though one post was advertised, the Managing Committee of the School, during the selection process, took notice that another post was going to fall vacant, very soon, due to retirement of one Smti Krishna Basak and as such, to avoid cost of repeated advertisement, inconvenience and save the time, took a policy decision to fill up the 2nd anticipated retirement vacancy also and accordingly with the approval of the Government, appointed the respondent No. 5 also. 13. As the respondent No. 5 has been rendering service w.e.f. the date of appointment, i.e. 11.07.2011, it is contended, by the learned senior Counsel, that cancellation of the appointment of respondent No. 5, at this stage, will cause much, prejudice to her and that her continuance in the service has not infringed any right of the petitioners, who foiled to qualify in the selection. 14. The learned Senior Counsel has submitted that, as the Managing Committee, considering the emergent situation and special circumstances, took a policy decision to fill up the 2nd retirement vacancy, after holding due selection process, no illegality or violation of natural justice or principle of equality has been done. 14. The learned Senior Counsel has submitted that, as the Managing Committee, considering the emergent situation and special circumstances, took a policy decision to fill up the 2nd retirement vacancy, after holding due selection process, no illegality or violation of natural justice or principle of equality has been done. It is further submitted, on behalf of the respondent No. 4, that refusal of petitioners, who failed to qualifying the written test, to apply in respect of the subsequent vacancy, without sufficient reason, indicates that they are, in fact, not interested to get the job, but to get the appointment of the respondent No. 5 cancelled. Therefore, it is contended that the appointment of respondent No. 5 has caused no prejudice to the petitioners, and as such they are not entitled to get any relief in equity. 15. The learned senior Counsel has placed reliance on the following decisions. (A) Gujarat State Dy. Executive Engineers Association Vs. State of Gujarat & Ors., 1994 Supp. (2) SCC 591. (B) State of Bihar & Ors. Vs. Secretariat Assistant Successful Examinees Union 1986 & Ors., (1994) 1 SCC 126 . (C) State of Punjab Vs. Raghbir Chand Sharma & Anr. (2002) SCC 113 (D) Prem Singh & Ors. Vs. Haryana State Electricity Board & Ors. with Shanti Prakash & Ors. Vs. Haryana State Electricity Board & Ors. with Haryana State Electricity & Ors. Vs. Satbir Singh Bura & Ors., (1996) 4 SCC 319 . 16. The learned Counsel, appearing for the respondents No. 1, 2, 3; and 5 have adopted the argument, placed by the learned senior Counsel for the respondent No. 4. 17. The undisputed facts are that one post was advertised and in response to the said advertisement, the petitioners, the respondent No. 5 and others applied and a panel of three selected candidates, in order of merit, was prepared. On the basis of the said selection, the candidate No. 1 and the respondent No. 5, who stood first and second in order of merit, were appointed against two retirement vacancies. Hence, the 2nd post being filled up, the petitioners, who failed to qualify in the written test, have challenged the appointment of respondent No. 5 on the ground that failure to advertise the said post and hold a separate selection process deprived the petitioners from applying for the second post. 18. Hence, the 2nd post being filled up, the petitioners, who failed to qualify in the written test, have challenged the appointment of respondent No. 5 on the ground that failure to advertise the said post and hold a separate selection process deprived the petitioners from applying for the second post. 18. It is settled principles of law that vacancies can't be filled up over and above the number of vacancies notified [Rakhi Paul & Ors. (supra)]. In the present case as the 2nd vacancy was filled up without advertisement, the challenge, put forward by the petitioners, cannot be treated as without any locus-standi. 19. That apart, when the illegality, in the selection of candidates, is alleged, the writ petition can not be thrown without examining as to whether any statutory requirement has been infringed in the selection process. In the case of Anupam Chakroborty & Ors. (supra), a learned Single Bench of this Court observed that Court would not refrain from interfering in a case, where glaring wrong is noticed, only on the ground of absence of locus-standi. Because, Court held, this is contrary to public interest and cause of justice would suffer if the Court did not interfere in the matter. 20. In view of the above, I am inclined to hold that the petitioners, who were also eligible to apply for the 2nd vacancy, if advertised, I have locus-standi to challenge the selection and appointment of the petitioners. 21. Now, the question to be determined is whether, in view of the advertisement (dated 10.12.2009) made for filling up one vacancy, the selection and appointment of respondent No. 5, against the second vacancy was illegal and liable to be set aside. 22. In Anupam Chakraborty & Ors. (supra), the qualification of the concerned candidates was in question. The Court observed that a public post was usurped by an undeserving person. The present case does not involve the question of qualification. Hence, the decision held in the said case does not help the petitioners. 23. In the case of Rakhi Ray & Ors. (supra) the Supreme Court observed:- 7. The Court observed that a public post was usurped by an undeserving person. The present case does not involve the question of qualification. Hence, the decision held in the said case does not help the petitioners. 23. In the case of Rakhi Ray & Ors. (supra) the Supreme Court observed:- 7. It is a settled legal proposition that vacancies cannot be filed up over and above the number of vacancies advertised as "the recruitment of the candidates in excess of the notified vacancies is a denial and deprivation of the constitutional right under Article 14 read with Article 16(1) of the Constitution", of those persons who acquired eligibility for the post in question in accordance with the statutory rules subsequent to the date of notification of vacancies. Filling up the vacancies over the notified vacancies is neither permissible nor desirable, for the reason, that it amounts to "improper exercise of power and only in a rare and exceptional circumstance and in emergent situation, such a rule can be deviated from and such a deviation is permissible only after adopting policy decision based on some rationale", otherwise the exercise would be arbitrary. Filling up of vacancies over the notified vacancies amounts to filling up of future vacancies and thus, is not permissible in law. (Vide Union of India Vs. Ishwar Singh Khatri, Gujrat State Dy. Executive Engineers' Assn. Vs. State or Gujrat, State of Bihar Vs. Secretariat Asstt. Successful Examinees Union 1986, Prem Singh Vs. Haryana SEB and Ashok Kumar Vs. Banking Service Recruitment Board). 12. In view of above, the law can be summarized to the effect that any appointment made beyond the number of vacancies advertised is without jurisdiction, being violative of Articles 14 and 16(1) of the Constitution of India, thus, a nullity, inexecutable and unenforceable in law. In case the vacancies notified stand filled up, the process of selection made comes to an end. Waiting list, etc. cannot be used as a reservoir, to fill up the vacancy which comes into existence after the issuance of notification/advertisement. The unexhausted select list/waiting list becomes meaningless and cannot be pressed in service any more. As referred by the Supreme Court in the case of 'Reka Ray' (supra) in Surinder Singh Vs. State of Punjab (1997) 8 SCC 488 , the Supreme Court observed:- 14. ...'9. The unexhausted select list/waiting list becomes meaningless and cannot be pressed in service any more. As referred by the Supreme Court in the case of 'Reka Ray' (supra) in Surinder Singh Vs. State of Punjab (1997) 8 SCC 488 , the Supreme Court observed:- 14. ...'9. A waiting list prepared in an examination conducted by the Commission does not furnish a source of recruitment. It is operative only for the contingency that if any of the selected candidates does not join then the person from the waiting list may be pushed up and be appointed in the vacancy so caused or if there is some extreme exigency the Government may as a matter of policy decision pick up persons in order of merit from the waiting list. But the view taken by the High Court that since the vacancies have not been worked out properly, therefore, the candidates from the waiting list were liable to be appointed does not appear to be sound. This practice, may result in depriving those candidates who become eligible for competing for the vacancies available in future. If the waiting list in one examination was to operate as an infinite stock for appointments, there is a danger that the State Government may resort to the device of not holding an examination for years together and pick up candidates for waiting list as and when required. The constitutional discipline requires that this Court should not permit such improper exercise of power which may result in creating a vested interest and perpetrate waiting list for the candidates of one examination at the cost of entire set of fresh candidates either from the open or even from service. 24. A person whose name appears in the select list does not acquire any indefeasible right of appointment, Empanelment at the best is a condition of eligibility for the purpose of appointment and by itself does not amount to selection or create a vested right to be appointed. The vacancies have to be filled up as per the statutory rules and in conformity with the constitutional mandate. In the instant case, once 13 notified vacancies were filled up, the selection process came to an end, thus there could be no scope of any further appointment. The vacancies have to be filled up as per the statutory rules and in conformity with the constitutional mandate. In the instant case, once 13 notified vacancies were filled up, the selection process came to an end, thus there could be no scope of any further appointment. From the Rakhi Ray (supra) it can be understood that though, only the notified vacancies are to be filled, in rare and exceptional circumstances and in emergent situation, after taking a policy decision more vacancies than the notified numbers can be filled up. Therefore, appointment in such situation is not bad. As observed by the Supreme Court, the selection process comes to an end once the notified vacancies are filled up and thereafter no scope remains for any further appointment. 24. In the case of A.P. Public Service Commission, Hyderabad (supra), the Supreme Court laid down the stages which include the selection process. In the said case, while deciding the date of attaining the minimum qualifying age, on the first day of July of the year, in which 'Selection' was held, the Supreme Court observed that the term "Selection" does not imply only the final selection. The Supreme Court observed that the selection process begins with the issuance of advertisement and continue with preparation of the select list for appointment and that it consist of various steps like inviting applications, scrutiny, rejection of defective application, conducting the examination, interview, preparation of list of successful candidates for appointment. The Court, also observed that the date to attain minimum or maximum age must be specific and determinate as on a particular date for candidate to apply and for receiving agency to scrutinize applications. Therefore, the selection process starts from the date of advertisement and ends with the final selection of the candidates. 25. In the case of State of Orissa & Anr. (supra) it has been held that select list can't be used as a reservoir for appointment in subsequent vacancies i.e. vacancies beyond the number of notified vacancies can't be filled up except in a rare and exceptional circumstances and in emergent situation, that too when policy decision is taken. Therefore, it appears that, though, normally only the notified vacancies are to be filled up, in exceptional, emergent and rare situation more vacancies, than the notified vacancies, can be filled up by taking a policy decision. 26. Therefore, it appears that, though, normally only the notified vacancies are to be filled up, in exceptional, emergent and rare situation more vacancies, than the notified vacancies, can be filled up by taking a policy decision. 26. In the case of State of Orissa & Anr. (supra), advertisement was made for filling up 15 (fifteen) nos. of posts of Junior Clerks. Before the selection process could be completed, the number of vacancies were increased from 15 to 33 and accordingly, merit list of 66 (sixty six) Nos. of candidates was published. The appointments were made on the basis of the said post. The respondents, whose names, appeared in the merit list, were not offered appointment being much below in the merit list, filed application before the Tribunal praying for a direction to the State from offering them appointment. The Tribunal, vide its judgment and order, dated 07.04.2000, directed that all the appointments were to be offered to all the candidates till the entire list exhausted. 27. Being aggrieved, the State preferred a writ petition against the common judgment and order of the Tribunal before the High Court of Orissa. The High Court modified the order of the Tribunal and issued direction to the appellants to offer appointment to those persons, who had approached the Tribunal. 28. Being aggrieved, appeal was preferred before the Supreme Court. On behalf of the appellant, it was contended that no vacancy be filled up over and above the number of vacancy advertised and that, once the advertised vacancies, are filled up, the selection process stands exhausted and that the selection process comes to an end. The Supreme Court, referring to the cases of Prem Singh Vs. Haryana SEB (1996) 4 SCC 319 , State of Bihar Vs. Secretariat Assistant Successful Examinees Union 1986 (1994) 1 SCC 126 , Rakhi Ray Vs. High Court of Delhi reported in 2010(2) SCC 637 , observed that filling up of vacancies beyond the notified vacancy is neither permissible nor desirable, for the reason, that it amounts to improper exercise of power. The Supreme Court further observed that only in rare and exceptional circumstances and in emergent situation, such a rule can be deviated from and such deviation is permissible only after adoption of policy decision based, on a some rational. 29. The Supreme Court further observed that only in rare and exceptional circumstances and in emergent situation, such a rule can be deviated from and such deviation is permissible only after adoption of policy decision based, on a some rational. 29. The Supreme Court further observed that the authority, though advertised 15 vacancies, had taken a decision to fill up 33 vacancies and thus; prepared a select list of 66 (sixty six) persons. The authority had taken a decision to fill up 33 (thirty three) vacancies. In the above referred case, the Supreme Court observed that in the fact situation, selection process would come to an end automatically whenever 33 (thirty three) candidates are appointed and that though the appellant had prepared a list double the number of vacancy determined, that would to create any vested right in favour of the respondents. 30. In view of the above decision of the Supreme Court, understood that in rare and exceptional circumstances and in emergent situation, if the authority takes a policy decision, vacancies more than the advertised vacancies can be filled up after taking a policy decision and the selection process comes to end as soon as candidates are appointed against the vacancies decided to be filled up. 31. In the case of State of Bihar (supra), the Supreme Court observed that in view of equality clause enshrined in Article 16 of the Constitution every appointment to the public Office, should be made by open advertisement so as to enable the eligible persons to compete for the selection on merit. 32. In the case of Mamata Mahanti (supra), the Supreme Court has observed that once the Court comes to the conclusion, that a wrong order has been passed, it becomes a solemn duty of the Court to rectify mistake rather than perpetuate the same. It has also been observed by the Supreme Court that a person employed in violation of provisions of rule is not entitled to any relief including salary. 33. In the case of State of Bihar & Ors. Vs. Secretarial Assistant Successful Examinees, 1986 (supra), advertisement was made in 1985 for the post of Assistants, following vacant posts of year 1985 and 1986. Number of vacancies as then existing was announced on August 25, 1987. The examination was held in November, 1987 and the result was published only in 1990. Vs. Secretarial Assistant Successful Examinees, 1986 (supra), advertisement was made in 1985 for the post of Assistants, following vacant posts of year 1985 and 1986. Number of vacancies as then existing was announced on August 25, 1987. The examination was held in November, 1987 and the result was published only in 1990. Thereafter, out of successful candidates, 309 candidates were given appointments and the rest empanelled candidates were made to wait till release of further vacancies. Since, vacancies available till December 31, 1988, were not disclosed or communicated to the Board, no further appointment could be made. The empanelled candidates approached, the Patna High Court and the High Court directed to appoint them on the vacancy available, on the day of publication of the result as well as vacancies arising up to 1991 from the list of selected candidates, who were empanelled after declaration of the result in 1990. The State of Bihar challenged the High, Court's order before Supreme Court. The Supreme Court observed that the direction made by the High Court for appointment of the empanelled candidates against the vacancy till 1991 was not proper. Expressing unhappiness about the leisurely manner in which the matter was treated by the State, the Supreme Court observed that there was no justification for holding examination of 2 (two) years after publication of the advertisement and declaring the results almost after 3 (three) years, after holding the examination. 34. While issuing certain directions to the State, the judgment of the High Court was modified by setting aside that part of the judgment, which directed the filling up of all the vacancies of 1989, 1990 and 1991 from out of list of the candidates, who appeared in the examination held in 1987. Therefore, it is found that though the advertisement was made in 1985, on the basis of the vacancies upto year 1985 and 1986, the Supreme Court approved the filling up of the vacancies upto 1988 from the panel of the selected candidates. 35. In the case of Gujrat State Dy. Executive Engineers Association (supra), the Supreme Court observed that once the selected candidates join and no vacancy arises due to resignation etc. 35. In the case of Gujrat State Dy. Executive Engineers Association (supra), the Supreme Court observed that once the selected candidates join and no vacancy arises due to resignation etc. or for any other reason within the period the list is to operate under the rules or within reasonable period where no specific period is provided, then candidate from the waiting list has no right to claim appointment to any future vacancy, which may arise unless the selection was held for it. 36. From the above observation, it appears that vacancies, arising out of the resignation or due to any other reason within the period the list remains operative can be filled up from the waiting list. In the above cited case, appointments of the direct recruits was made from the waiting list. Noticing the said fact, the Supreme Court observed that the entire appointments of direct recruits from the waiting list was not proper. However, as the appointed persons were working for about 5 (five) years, the Supreme Court opined that quashing of their appointment at that stage would be unjust and harsh. Therefore, while refraining from quashing the appointment, the Supreme Court observed that waiting list for 1 (one) year can not furnish source of recruitment for future years, except in very exceptional cases. 37. In the case of State of Punjab (supra), the question regarding appointment of Advocate General came up before the Court. In the said case, the State of Punjab invited applications for the post of Advocate General. The Committee prepared a panel of candidates placing respondent at serial No. 3. The first in the panel was appointed and he joined the service and resigned after one month. The second candidate declined to join. Then the State filled up the post by promotion from the lower post. The third candidate approached the Court and learned Single Judge of the High Court allowed the writ petition. The Division Bench, on appeal, dismissed the State's appeal. Allowing the appeal, preferred by the State, the Supreme Court observed that panel ceased to exist and outlive its utility after appointment of the first candidate. 38. In the case of Prem Singh & Ors. The Division Bench, on appeal, dismissed the State's appeal. Allowing the appeal, preferred by the State, the Supreme Court observed that panel ceased to exist and outlive its utility after appointment of the first candidate. 38. In the case of Prem Singh & Ors. (supra), which has been referred in the case of Rakhi (supra), the Supreme Court, referring to the case of State of Bihar (supra), State of Gujrat (supra) and a catena of decisions of the Supreme Court, observed that selection process by way of requisition or advertisement can be started for clear vacancies and also for anticipated vacancies but not for future vacancies. It has also been held that State cannot make more appointments than the number of posts advertised. The Supreme Court further observed that the State can deviate from the advertisement and make appointment on posts falling vacant, thereafter, in exceptional circumstances only or in emergent situation and that too by taking policy decision in that behalf. The Supreme Court further observed: even when filling up of more post than advertised is challenged, the Court may not, while exercising its extraordinary jurisdiction, invalidate, the excess appointments and may mould the relief in such a manner as to strike a balance between the interest of the State and the interest of persons seeking public employment. What relief should be granted in such a case would depend upon facts and circumstances of its case. 39. In the above referred case, against 62 (sixty two) advertised post, the Board made appointment on 138 Posts. At the time of initiating the selection process, which started with 62 (sixty two) clear vacancies, the anticipated vacancies were not taken into account. 40. In view of the above, the Supreme Court observed- therefore, strictly speaking, the board was not justified in making more than 62 appointments pursuant to the advertisement published on 02.11.1991 and the selection process which followed thereafter; But as the board could have taken into account not only the actual vacancies but also the vacancies which were likely to arise because of retirement etc. by the time the selection process was completed it would not be just and equitable to invalidate all the appointments made on post in excess of 62. However, appointments which were made against future vacancy, in this case, on posts which were newly created must be regarded as invalid. 41. by the time the selection process was completed it would not be just and equitable to invalidate all the appointments made on post in excess of 62. However, appointments which were made against future vacancy, in this case, on posts which were newly created must be regarded as invalid. 41. With the above observation, the Supreme Court refused to interfere with the excess appointment made against the vacancies arising due to retirement and death. 42. In view of the above decision, there is no difficulty in understanding that anticipated vacancy, arising due to retirement or out of death, during the selection process, can be filled up even if the authority concerned, due to oversight, failed to take note of such vacancies, at the time of advertisement. 43. In the light of the above decision and the principles laid down therein, this Court is required to examine as to whether the appointment of petitioner No. 5 was in respect of an anticipated vacancy, arising during the selection process. It has already been noticed that the selection process starts from the date of advertisement and ends with the appointment of the selected candidate(s). 44. As discussed above, in the cases of Rakhi (supra) and Prem Singh (supra), it has been clearly held by the Supreme Court that in, special circumstances, if the authority takes a policy decision; vacancy over and above the number of notified vacancy can be filled up, if such vacancy arises as anticipated vacancy during the selection process. 45. Admittedly, the petitioner No. 5, who secured second position in order of merit in the selection process, was appointed against the retirement vacancy of Shri Krishna Basak. The post held by Sri Krishna Basak had fallen vacant w.e.f. 01.02.2011 due to her retirement. There is no dispute that the advertisement was made to fill up one anticipated vacancy against the post held by Sri Ranjit Kr. Deb, who was due to retire and the said advertisement was made on 10.12.2009. Therefore, the school authority, inadvertently failed to take note of the said anticipated vacancy, likely to fall vacant, due to retirement of Smti Krishna Basak, w.e.f. 01.02.2011 while making the advertisement of the post held Sri Ranjit Kr. Deb. 46. Deb, who was due to retire and the said advertisement was made on 10.12.2009. Therefore, the school authority, inadvertently failed to take note of the said anticipated vacancy, likely to fall vacant, due to retirement of Smti Krishna Basak, w.e.f. 01.02.2011 while making the advertisement of the post held Sri Ranjit Kr. Deb. 46. In view of expected retirement of Smti Krishna Basak aforesaid, the Managing Committee of the School, vide resolution, taken in its meeting, held on 19.07.2010, took note that another vacancy was expected soon and therefore, the Committee, while accepting the panel, prepared by the Selection Committee, resolved to fill up the said second vacancy also from the select list and decided to obtain approval from the higher authority for appointment of candidates from the panel according to the merit. The names of the first two candidates, namely, Shri Rina Paul and the respondent No. 5 Smti Mousumi Dutta were sent to the Deputy Inspector of Schools on 04.02.2011 seeking necessary approval for appointment against retirement vacancy of Shri Ranjit Kr. Deb and Sri Krishna Basak respectively. 47. Admittedly, the post held by Sri Krishna Basak had fallen vacant on 01.02.2011 and the recommendation for appointment of respondent No. 5 was made on 04.02.2011, i.e. after the said post had fallen vacant. Accordingly, the Deputy Inspector of Schools, on the recommendation of respondent No. 4, i.e. Managing Committee of the School approved the appointment of respondent No. 5 by his order dated 11.07.2011. On the date of such approval, the select list became final for appointment. 48. In their affidavit-in-opposition, the respondent No. 4, at paragraph 5 (viii) clearly stated that in order to fill up another expected vacancy, arising due to retirement of Sri Krishna Basak w.e.f. 31.01.2011, the Committee decided to keep the panel of the select list as per prevailing; norms and practice and authorized the Secretary of the Managing Committee to take necessary steps for appointment of candidates from the penal, after obtaining approval from the Education Department. 49. At paragraph 6 of the affidavit, it has been stated that the School, being a Government aided school, could not afford to advertise the posts time and again and as such, decided to appoint from the said select list. 50. 49. At paragraph 6 of the affidavit, it has been stated that the School, being a Government aided school, could not afford to advertise the posts time and again and as such, decided to appoint from the said select list. 50. From the above, it appears that the post, given to the respondent No. 5 had fallen vacant before sending the names of the first candidate and the respondent No. 5 to the authority for approval towards their appointment Therefore, it is found that the said post had fallen vacant before the end of the selection process, i.e. appointment of the selected candidates. 51. It is also found that, in order to fill up the second post, the Managing Committee, which failed to take note of the said anticipated vacancy, took a resolution, i.e. policy decision to fill up the said vacancy also from the penal, prepared by the Selection Committee. 52. In view of the above, it is found that the appointment of respondent No. 5 was made under special circumstances, after taking a policy decision. This being the position, the appointment of respondent No. 5 is covered by the principles, laid down in the cases of Rakhi (supra) and Prem Singh (supra). 53. Further, from the record, it appears that the petitioners also participated in the said selection process and they filed to qualify in the written test for the oral interview, inasmuch as they could not secure the minimum qualifying marks. Therefore, it is not a case that the petitioners were not given opportunity to participate in the selection process. 54. By filing an additional affidavit, the respondent No. 4 has stated that another vacancy of the post of Assistant Teacher has already fallen vacant, for which advertisement has been made in "Shillong Times" and "Meghalaya Guardian" on 21.07.2012 and 20.07.2012 respectively. 55. It has also been stated that though the last date for submission of application in respect of the said advertisement was 06.8.2012, the petitioners failed to apply, in response to the said advertisement. 56. In the said affidavit, the respondent No. 4 has contended that, in view of the said advertisement, the petitioners got sufficient opportunity to participate in the selection process for another post and their failure to offer their candidature indicates that they are not interested for the job. 56. In the said affidavit, the respondent No. 4 has contended that, in view of the said advertisement, the petitioners got sufficient opportunity to participate in the selection process for another post and their failure to offer their candidature indicates that they are not interested for the job. However, it has been contended by the respondent No. 4 that the School Authority has no objection, if the petitioners, apply for the said post within a reasonable period, subject to permission form the Court. 57. In view of the said statement, made by respondent No. 4, it is clearly found that the petitioners got sufficient opportunity to participate in the selection process, but for the reasons, best known to them, they failed to apply in response to the second advertisement. Their failure to response to the second advertisement, indicates that no prejudice, has been caused to them by giving appointment to the respondent No. 5, who stood second in order of merit. 58. Admittedly, the respondent No. 5 has been rendering service after her appointment, on the basis of merit, cancellation of her appointment, at this stage, despite being harsh, would cause much prejudice to her. Further, in the event of such decision, the school also will face much hardship and inconvenience. As the petitioners have declined to apply in response to the second advertisement, the cancellation of the appointment of respondent No. 5 will not serve any purpose to the benefit of the petitioners, except causing hardship to the respondent Nos. 4 and 5. 59. There is no dispute that, in normal course, only the notified vacancy can be filled up and any appointment in excess to the number of vacancy notified is illegal. However, as held in the cases of Rakhi (supra) and Prem Singh (supra) there can be deviation from such rule in rare and exceptional circumstances only after adopting policy decision based on some rational. 60. In the present case, the Managing Committee, considering the inconvenience in advertising the second post, which had fallen vacant during the process of selection, took a policy decision to fill up the second anticipated vacancy also from the penal of the select list. Therefore, the appointment of respondent No. 5 is permissible. 61. In view of the above, considering entire aspect of the matter., I find no force in this writ petition warranting interference with the appointment of respondent No. 5. Therefore, the appointment of respondent No. 5 is permissible. 61. In view of the above, considering entire aspect of the matter., I find no force in this writ petition warranting interference with the appointment of respondent No. 5. However, the petitioners may apply against the second advertisement within a period of 10 (ten) days from this order or before the date of holding selection test/ examination, either written or oral, whichever is earlier, if so advised. 62. With the above observations, this writ petition stands dismissed. No costs. Petition dismissed