JUDGMENT By the Court.—Heard learned counsel for the parties. 2. Since the legal arguments advanced on this writ petition and the connected writ petition are same, both the writ petitions are being decided by this common judgment. 3. Writ petition No. 10246 of 2009, Mahendra Kumar and another v. State of U.P. and others has been preferred for directed against the U.P. Public Service Commission, Allahabad arrayed though its Chairman and the Secretary respondent Nos. 2 and 3 respectively for including the names of the petitioners in the final select list of U.P. Judicial Services Civil Judge (J.D.)Examination 2006 vacancies by declaring them selected against 355 for the said post. A further direction has been sought for directing respondent Nos. 1 and 4 i.e. the State of U.P. and the High Court of Judicature at Allahabad through its Registrar General respectively to appoint the petitioners on the post of Civil Judge (J.D.). 4. This case has been listed for hearing under the heading of ‘old caes’. No counter-affidavit has been filed by the Public Service Commission, therefore, inspite of time having been granted, the Court is constrained to decide this writ petition on merits without calling for a counter-affidavit. 5. The facts shorn in details are, that respondent No. 2-U.P.Public Service Commission published advertisement No. A-6/E-1/2006 in Employment News Dated 7th to 13th October, 2006 inviting applications from eligible candidates against 355 posts of Civil Judge (J.D.) for appearing in the examination for selection and appointment on the said posts. The petitioners applied for the post and appeared in the preliminary and main examinations 2006 for the post of Civil Judge (J.D.) was called for an interview. The petitioners belong to Schedule Caste category. The petitioner No. 1 obtained 441.37 marks whereas the petitioner No. 2 obtained 445.11 marks against the cut off marks of 448.48 on which the last candidate in the category was selected. 6. It appears that a news paper item was published in daily news paper (Amar Ujala) dated 7.10.2008 published from New Delhi alleging irregularities committed in the aforesaid examination particularly. “It was stated in the news paper that 27 out of every 1000 candidates have been selected for interview. The total numbers of candidates selected for interview are 1055. 6. It appears that a news paper item was published in daily news paper (Amar Ujala) dated 7.10.2008 published from New Delhi alleging irregularities committed in the aforesaid examination particularly. “It was stated in the news paper that 27 out of every 1000 candidates have been selected for interview. The total numbers of candidates selected for interview are 1055. It is further published in the news paper that from Roll No. 12001 to 17000 there only 23 candidates per thousand whereas from Roll No. 1 to 12001 and 17001 to 30000 there are 11 to 46 candidates per thousand. There are 23 to 69 candidates per thousand between Roll Nos. 30001 to 39000. There are only 8 candidates between Roll No. 12001 to 13000. There are 5 candidates from the Roll No. 1300 till 14000. There is only one candidate from 14001 to 15000 etc.” 7. Learned counsel for the petitioner submits that in the judgement rendered by the Hon’ble Apex Court in Civil Appeal No. 1867 of 2006 (Malik Majhar Sultan and another v. U.P. Public Service Commission and others) has issued a direction to all the States regarding laying down of the guidelines in appointment of the post of Civil Judge (J.D.) by direct recruitment to the effect that vacancy shall be calculated by including: “a. Existing vacancies. b. Future vacancies that may arise within one year due to retirement. c. Future vacancies that may arise due to promotion, death or otherwise, say 10% of the number of posts.” It was further held in the aforesaid judgment: “Select list be published in order of merit and should be double the number of vacancies notified.” “The select list prepared from all categories of officials shall be valid till the next select list is published. We further direct that ten percent of unforeseen vacancies would be in respect of sanctioned posts and not vacancies occurring in a particular year” 8. On the basis of the above learned counsel for the petitioners argued that for the reasons best known to the Commission the final result of the U.P. Judical Services Civil Judge (J.D.) Examination- 2006 was declared on 5.12.2008 only for 339 posts though 355 posts had been advertised. On the basis of the above learned counsel for the petitioners argued that for the reasons best known to the Commission the final result of the U.P. Judical Services Civil Judge (J.D.) Examination- 2006 was declared on 5.12.2008 only for 339 posts though 355 posts had been advertised. He submits that petitioner would have been selected had the commission applied the rational of the decision in Malik Majhar Sultan and another v. U.P. Public Service Commission and others (supra), by taking the existing vacancies as well as future vacancies likely to arise within a year, which had not been calculated by the Commission, as such, the entire selection list made by the it is illegal and violative of direction given by the Apex Court. 9. The next contention of the learned counsel for the petitioners is that the select list should be published in order of merit including double the number of vacancies notified, which is to be valid till the next select list is published but in the present case number of vacancies advertised were 355 and the result of only 339 vacancies was declared. The entire select list by the Commission is thus liable to be quashed. It is also stated that if the Commission would have declared a larger select list, the petitioner would have been selected, therefore declaration of result for lesser number of vacancies as advertised has affected his result and as even guidelines with regard to moderation as laid down in the case of Sanjai Kumar Singh v. U.P. Public Service Commission Allahabad and others, 2007(2) ALJ 247, have not been followed therefore the impugned selection of the candidates is arbitrary and illegal. 10. It has been emphatically argued that petitioners are brilliant students, and as such are bound to be selected and therefore, it would be in the interest of justice that an ad-interim direction be issued to respondent Nos. 2 and 3 to include the name of petitioners in the select list of U.P. Judicial Services Civil Judge (J.D.) Examination 2006 and that a further direction be issued to respondent No. 1 and 4 to appoint the petitioners on the post. 11. The admitted facts in the case are that 355 vacancies were advertised for appointment on the post of Civil Judge (J.D.) in the year 2006, but only 339 posts were filled up by the selected candidates. 11. The admitted facts in the case are that 355 vacancies were advertised for appointment on the post of Civil Judge (J.D.) in the year 2006, but only 339 posts were filled up by the selected candidates. According to the learned counsel for the High Court further posts could not be filled due to lack of qualified candidates. It is stated that, the relief sought by the petitioner is only based on the presumption that if all the advertised posts had been filled up, they being brilliant students would have certainly qualified. 12. It is not undisputed that all those who qualified in main examination have been issued appointment letters. If certain amount of vacancies remained unfilled as eligible candidates were not available for not having acquired the qualifying marks, the post ought to have been filled up by candidates down in the merit list. This proposition though is seemingly attractive but if applied would be quite dangerous to in the institution, where high standards of work is required to be performed. The post of Civil Judge (J.D.) is not a post, which can be equated with that of a class IV or class III employee but is a post on which the incumbent has to apply his mind in trying circumstances and shoulder a bundle of responsibilities and duties without fear or favour irrespective of situations or pressures. The incumbent of the said post has not only to be meritorious but also hard working. The petitioners are candidates, who could not have qualified for 355 vacancies cannot claim calling themselves to be brilliant students. 13. In our considered opinion, the writ petition having being filed merely on the basis of presumption and on the basis of news paper report is not maintainable. The reason is that news paper reports cannot be said to be taken authentic reports and any cause of action based on such report has to be justified by the petitioners before this Court to which they have failed to do so. The relief sought by them also cannot be granted by the High Court in exercise of power under Article 226 of the Constitution for the reason they have to first qualify and find place in the select list and then show that action of the respondent is arbitrary and illegal. The relief sought by them also cannot be granted by the High Court in exercise of power under Article 226 of the Constitution for the reason they have to first qualify and find place in the select list and then show that action of the respondent is arbitrary and illegal. It is only then the Court may consider the issuance of an order for their consideration but certainly the Court cannot direct the respondents to issue appointment letters to declare them successful or to straight away issue appointment letters to them. It is settled by a catena of decision by Apex Court that a candidate is not vested with any legal right merely of the qualified the merit list. It is the right of the respondents to fill up all the post or not in case desirable candidates are not available. In the instant case petitioners have failed to get aggregate number of marks even to qualify for 339 posts filled up : As regards decisions relied upon by the petitioners they are clearly distinguishable from the facts of this case for the reasons stated above. The orders to be issued by the Court are to be issues within the realm of law and legality and are not to be passed on the basis of presumption and assumption. 14. For all the reasons stated above, this writ petition alongwith the connected petition is dismissed. 15. No order as to costs. ——————