Judgment : The petitioners in these proceedings were all candidates for the posts of Civil Judge (Junior Division), who participated in a selection process undertaken in the year 2010. The advertisement inviting applications for these posts was issued by the Public Service Commission, West Bengal, numbered 3 of 2010, and date of issue was 6th March, 2010. In W.P. No. 8446 (W) of 2011, originally there were eleven petitioners. During pendency of hearing of these proceedings, three of them were given appointment and hence they withdrew from this litigation. Two other petitioners being the petitioner nos. 9 and 11 also subsequently chose not to prosecute the writ petition. Their names as petitioners thus were deleted by direction of this Court. The controversy in these two writ petitions revolve around interpretation of the expression “vacancy” as specified in the said advertisement, as the case of the petitioners is that the authorities did not fill up all the vacancies, as advertised. The specification relating to vacancies, which was advertised, reads:- “Vacancies: (a) The number of vacancies arising in 2010 due to retirement/promotion of W.B.J.S. officers – 35 (Unreserved – 23, BC – 02, SC – 03, ST – 02+04*=06, and PH – 01) *04 vacancies reserved for S.T. for the year 2008 are carried forward. (b) The number of vacancies which may arise due to death, voluntary retirement, resignation or unwillingness to join the service by selected candidates – 10 (Unreserved – 08, BC – 01, SC – 01).” Selection to the posts of Judicial Officers under the West Bengal Judicial Service is guided by the West Bengal Judicial (Conditions of Service), Rules, 2004. We are concerned in this proceeding with three provisions of the said Rules, and these are paragraphs 6, 8 and 9, which read:- “6. Cadre:- (1) the Judicial Officers other than District Judge of the service as mentioned in Part-I, shall include the following posts forming the cadre namely: (a) Civil Judge/Judicial Magistrate/Metropolitan Magistrate/Municipal Magistrate/Magistrate of the Juvenile Board: (b) Chief Metropolitan Magistrate/Additional Chief Metropolitan Magistrate/Chief Judicial Magistrate/Additional Chief Judicial Magistrate/Senior Civil Judge/Assistant Sessions Judge/Sub-Divisional Judicial Magistrate/Senior Municipal Magistrate/The Judge, Presidency Small Causes Court/The Registrar, District Judge’s Court. 8. 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. (2) the appointment to any of the posts as mentioned in clause (b) of sub-rule (1) of rule 6, shall be made by way of selection through promotion from the posts as mentioned in clause (a) of sub-rule (1) of rule 6, by the High Court, on the basis of merit-cum-seniority. Provided that the selection to the posts as mentioned in clause (b) of sub-rule (1) of rule 6, shall be made only on completion of six years service in the posts as mentioned in clause (a) of sub-rule (1) of rule 6, on the first day of January of the year in which selection is to be made. 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.” The substantive provisions relating to appointment are contained in the said Rules, whereas the manner in which such appointment are to be made is primarily guided by a judgment of the Hon’ble Supreme Court in the case of Malik Mazhar Sultan (3) and Another Vs. Uttar Pradesh Public Service Commission & Others [ 2008(17) SCC 703 ]. It has been directed by the Hon’ble Supreme Court, as it appears in paragraph 3 (three) of the said report:- “In this matter, by judgment and order dated 3-4-2006, it was observed that it is absolutely necessary to evolve a mechanism to speedily determine and fill vacancies of Judges at all levels. For this purpose, timely steps are required to be taken for determination of vacancies, issue of advertisement, conducting of examinations, interviews, declaration of final results and issue of orders of appointment. For this purpose, timely steps are required to be taken for determination of vacancies, issue of advertisement, conducting of examinations, interviews, declaration of final results and issue of orders of appointment. It was further directed that for all these above and other steps, it is necessary to provide to fix the time schedule so that the system works automatically and there is no delay in filling up of the vacancies. The dates for taking up these steps can be provided for on the pattern similar to filling up of vacancies in some other services. Adherence to strict time schedule can help in ensuring timely filling up of vacancies. In this view, all the State Governments, Union Territories and/or High Courts were directed to give suggestions regarding the time schedule to be fixed so that every year vacancies that may occur are filled. This Court also requested Mr. Vijay Hansaria, Senior Advocate, to assist the Court.” Paragraph 7 of the said report stipulates the time schedule which is to be maintained for filling up of vacancies in various cadres. In respect of the cadre of Civil Judge (Junior Division) who are to be appointed by direct recruitment, mandate of the Hon’ble the Supreme Court is provided in sub-paragraph (D) of the said paragraph, which stipulates:- “D. For appointment to the posts of Civil Judge (Junior Division) by direct recruitment number of posts. Advertisement inviting Sl No. Description Date Number of vacancies to be notified by the 1. High Court.Vacancies 15th January to be calculated Including (a) Existing vacancies Future vacancies that (b) may Arise within one year due to etirement. Future vacancies that may that may arise (c) due to promotion, death or otherwise, say ten per cent of the 2. applications from 1st February eligible candidates. Last date for receipt of 3. 1st March application. Publication of list of eligible applicants. 4. 2nd April The list may be put on the website. Despatch/Issue of admit cards to 2nd 30th April 5. the eligible applicants. To Preliminary written examination Objective questions with 6. 15th May multiple Choice which can be scrutinised by Computer. Declaration of result 7. of preliminary written 15th June examination Result may be put on the website and also (a) published in the newspaper. the ratio of 1:10 of the availablevacancies to (b) the successful candidates be maintained. Final written 8. examination 15th July Subjective/Narrative. 15th May multiple Choice which can be scrutinised by Computer. Declaration of result 7. of preliminary written 15th June examination Result may be put on the website and also (a) published in the newspaper. the ratio of 1:10 of the availablevacancies to (b) the successful candidates be maintained. Final written 8. examination 15th July Subjective/Narrative. Declaration of result 9. of final written 30th August examination Result may be put on the website and also (a) published in the newspaper. The ratio of 1:3 of the available Vacancies to (b) the successful candidatesbe maintained. Dates of interview of the successful candidates may be put on the internet which can be (c) printed by the candidates and no separate intimation of the date of interview need be sent. 10. Viva Voce. 1stto Declaration of final select list and 11. communication of the appointing Authority Result may be put on the websiteand also (a) published in the newspaper. Select list be published in Order of merit and should be (b) double the number of vacancies notified. Issue of appointment 12. 15th October 1st November 1st December letter by the competent authority for all existing vacant posts as on date. Last date for joining. 13. 2nd January of the following year.” Apart from this direction, there are two other orders passed by the Hon’ble Supreme Court in the case of Malik Mazhar Sultan (supra), which case I shall henceforth referred to in its short form of the cause title, as MMS. On 24th March, 2009, it was directed, in IA no. 56 in connection with the said case : “ On 4th January, 2007, this Court had given certain directions regarding the selection and appointment of Members of subordinate judicial officers in various courts. In the tabular form, the number of vacancies are notified by the High Court/Public Service Commission. It was directed that the further vacancies that may arise due to elevation or death or otherwise, 10 per cent of the posts shall be notified and this is referred at P.16 of the order, it is further stated: “We further directed that ten per cent of unforeseen vacancies would be in respect of sanctioned posts and not vacancies occurring in a particular year”. It has been pointed out by the counsel appearing for the various High Courts that 10 per cent of the sanctioned posts are notified in some States. It has been pointed out by the counsel appearing for the various High Courts that 10 per cent of the sanctioned posts are notified in some States. A large number of posts are to be notified whereas there was corresponding number of vacancies to be filled if the candidates are selected in the select list. There may be an expectation for such candidates to get appointment and this creates unwanted litigation by the candidates and it is prayed that the existing vacancies alone be notified along with the anticipated vacancies that may arise in the next one year and some candidates also be included in the wait list prepared by the High Courts/PSCs. In suppression of the order passed by this Court on 4.1.2007, this Court direct that in future the High Courts/PSCs shall notify the existing number of vacancies plus the anticipated vacancies for the next one year and some candidates also be included in the wait list. To this extent earlier order is modified. I.A. is disposed of accordingly.” On 3rd April, 2006, another order of the Supreme Court was passed in the same case, in which it was directed :- “All State Governments, Union Territories and/or High Courts are directed to provide for time schedule for the aforesaid purposes so that every year vacancies that may occur are timely filled. All State Governments, Union Territories and High Courts are directed to file within three months details of the time schedule so fixed and date from which time schedule so fixed would be operational”. The other order passed in the said case to which my attention has been drawn is the order passed on 8th October, 2010 by the Hon’ble Supreme Court. This order records filing of an affidavit by the administration of this Court and the content of the said affidavit has been reproduced in the order with consequential observation, which is reproduced below:- “According to the affidavit filed by the Calcutta High Court dated 9th September, 2010, the process of filling up of 90 vacancies of district Judges, 73 vacancies of Civil Judges (Senior Division) and of Civil Judges (Junior Division) is at an advance stage and the vacancies are likely to be filled up as per the schedule fixed by this Court. In light of the said affidavit, for the present, no further orders are called for.” As would be evident from the said advertisement, there were thirty five declared vacancies and ten vacancies were referred to as vacancies which may arise due to death, voluntary retirement, resignation or unwillingness to join the service by selected candidates. The petitioners participated in the selection process and their names appeared in the select list of eighty two candidates. In the select list, petitioners in W.P. No. 8446 (W) of 2011 were listed against serial number 16, 17, 18, 20, 21 and 23, whereas the petitioner in W.P. No. 565 of 2011 found her name against serial number 19 thereof. On that basis, the petitioners expected that they would be given appointment, but subsequently, it appears that the number of candidates who were appointed were scaled down to twenty three including the reserve categories, being schedule castes, schedule tribes, backward classes and physically handicapped candidates. This left out the petitioners and such exclusion forms the basic cause of action of these two writ petitions. Before I deal with the actual controversy, I shall refer to certain resolutions and also communications among the senor functionaries of the three authorities in whose coordination the selection process was conducted, being the administration of this Court, the State Government and the State Public Service Commission. These documents would reveal the manner in which vacancies were declared. The Administrative Committee of the High Court, in its meeting held on 13th January, 2010 considered the question of declaration of vacancies in the West Bengal Judicial Service (WBJS) in the rank of Civil Judge (Junior Division) in the year 2010. It was resolved by the Committee: “It is resolved that the number of vacancies to be notified for the year 2010 will be 54 (fifty four), i.e., 29 (twenty nine) anticipated vacancies plus 15 (fifteen) vacancies expected to arise on account of retirement in the year 2010 plus 10 (ten) unforeseen vacancies.” I have been apprised by Mr. Ghosh, learned Counsel representing the High Court Administration, being the main respondents in this matter that the said resolution was later approved by the Full Court. Thereafter, the Registrar, Judicial Service, High Court by a communication bearing no. Ghosh, learned Counsel representing the High Court Administration, being the main respondents in this matter that the said resolution was later approved by the Full Court. Thereafter, the Registrar, Judicial Service, High Court by a communication bearing no. 221-A dated 27th January, 2010 reported the said vacancies to the Secretary-in- Charge, Government of West Bengal in the following terms:- “Sir, With reference to the above subject, I am directed to report the following vacancies in the rank of Civil Judge (Junior Division)/Judicial Magistrate for initiation of the process of recruitment as per time schedule in the above quoted judgment. Anticipated vacancies -29 Vacancies expected to arise on account of retirement in the year 2010 -15 Unforeseen vacancies -10 54” At the initial stage itself, there was a dispute over the number of vacancies to be advertised and the Secretary-in-Charge, Government of West Bengal by a communication dated 1st February, 2010 against Memorandum no. 4880-J/ M-01/09 had apprised the High Court Administration:- “Sir, With reference to above I am to state that in pursuance of vacancy report in the post of Civil Judge (Jr. Divn.) for the year, 2009 as received from the Hon’ble Court necessary reporting was made to the P.S.C., West Bengal and on receipt of allotment of candidates on the result of the relevant Examination, 2009, the cases of 27 candidates were processed for issuing appointment as such in their favour with due intimation to the Hon’ble Court. Necessary notification under No. 313-J dated 21.01.2010 appointing the 27 (twenty seven) candidates as Civil Judge (Jr. Divn.) on provisionally and temporary basis for a period of three months was issued after observing necessary formalities and in pursuance of the schedules fixed by the Hon’ble Apex Court read with a petition filed by the Govt. before the Apex Court for granting time to complete the appointment procedure by 1st February, 2010. As anticipated/expected vacancies report in the judicial service for the year, 2010 as received from the Hon’ble Court as (29+15) = 44. The P.S.C., West Bengal is being reported for (44-9) = 35 vacancies keeping aside 9 subsequent vacancies for 9 candidates already appointed as such for the year, 2009. Ten vacancies arising out due to death/voluntary retirement/resignation etc. As anticipated/expected vacancies report in the judicial service for the year, 2010 as received from the Hon’ble Court as (29+15) = 44. The P.S.C., West Bengal is being reported for (44-9) = 35 vacancies keeping aside 9 subsequent vacancies for 9 candidates already appointed as such for the year, 2009. Ten vacancies arising out due to death/voluntary retirement/resignation etc. are also being reported to the P.S.C., West Bengal.” On 1st February, 2010, the Secretary-in-Charge to the Government of West Bengal, Judicial Department, requested the Secretary, Public Service Commission, West Bengal to take appropriate steps for filling up the vacancies. This communication reads:- “Sir, I am directed to forward herewith in the prescribed proforma an estimate of vacancies to be filled up on the results of the W.B.J.S. Examination, 2010. The vacancies will be as follows:- a) Anticipated/Expected that may arise due to promotion/retirement 35 b) Vacancies which may arise due To death resignation/voluntary/ retirement/unwillingness to join 10 I am further directed to say that the appointment of the vacancies amongst the different categories will be as follows:- as (a) above as (b) above (i) Unreserved – 23 08 (ii) S.C. (10%) – 03 01 (iii) S.T. (5%) – 02+04 NIL (iv) B.C. (7%) –02 01 (v) P.H. (3%) – 01 NIL *04 vacancies reserved for S.T.for the year 2008 are carried forward. Total - 35 10 As per order of the Hon’ble Apex Court in Malik Mazhar Sultan (SLP 22523/05) cases the next examination will have to be conducted as per schedule. The vacancies as reported by the Hon’ble High Court, Calcutta vide NO. 221-A dated 27.01.10 read with 222- A dated 27.01.2010 have been reproduced above and in the format as well. Accordingly I am to request you to take appropriate action in the matter. Yours faithfully, Secretary-in-Charge” It was after this communication the examination procedure was conducted and result of such examination was published. In the meantime, another notification was issued by the High Court Administration on 30th March, 2010 bearing no. 3193-RJS. This notification reads:- “No.3193-R(JS) The 30th March, 2010 It is notified for general information that seventy three (73) vacant posts of civil Judge (Senior Division) in the West Bengal Judicial Service will be filled up by promotion on merit-cum-seniority basis from the Judicial Officers in the cadre of Civil Judge (Junior Division) having six (6) years service as on 01.01.2010. This notification reads:- “No.3193-R(JS) The 30th March, 2010 It is notified for general information that seventy three (73) vacant posts of civil Judge (Senior Division) in the West Bengal Judicial Service will be filled up by promotion on merit-cum-seniority basis from the Judicial Officers in the cadre of Civil Judge (Junior Division) having six (6) years service as on 01.01.2010. Further details will follow in due course in our website – www.calsuttahighcourt.nic.in.” So far as the present proceedings are concerned, the implication of this notification is, as per the submission of learned Counsel for the High Court Administration, that the posts which were being filled up through the selection process referred to in the earlier part of this judgment related to vacancies arising on account of promotion of the Civil Judges (Junior Division) to the said seventy three vacancies. The actual notification on promotion however was issued on 30th September, 2010 under Memorandum no. 5733-J/ JD/4J-03/09. This notification records the names of seventy two judicial officers who at that point of time were in the cadre of Civil Judge (Junior Division)/Judicial Magistrates and the notification records that the Governor had been pleased to appoint them on promotion to the cadre of Civil Judge/Senior Division/CJM /SEJM. The vacancies which were sought to be filled up in pursuance of advertisement no. 3/10 were not filled up in the year 2010 as no appointment was given during that year in respect of these vacancies. The Administrative Committee of the High Court in its meeting on 12th January, 2011 considered the actual number of vacancies for the year, 2010 in the cadre of Civil Judge (Junior Division)/Judicial Magistrate of West Bengal Judicial Service and the agenda on that issue was disposed of in the following manner:- “1. It is resolved that the actual vacancy being (22+1) = 23 only (inclusive all) which can be filled up from amongst the allotted candidates of West Bengal Judicial Service Examination, 2010 after offering them due appointment by the Judicial Department, Government of West Bengal.” After adoption of the aforesaid resolution, I am apprised by Mr. Ghosh, that the Full Court had confirmed the same and the said fact was communicated by the Registrar, Judicial Service to the State Government. Ghosh, that the Full Court had confirmed the same and the said fact was communicated by the Registrar, Judicial Service to the State Government. On that basis, it appears that appointment letters were issued to twenty two candidates against the vacancies which occurred by virtue of promotion of the first twenty two candidates from the promotion list contained in the notification dated 30th September, 2010. The respondents have proceeded to fill up rest of the vacancies through an independent selection process which was initiated in the year 2011, by publication of another advertisement by the Commission, being advertisement no. 4/11. The petitioners’ case is that they should have been given letters of appointment after being placed in the select list, after their names were serialized in order of merit within the thirty five declared vacancies, even taking into account the candidates from the reserved categories. Mr. Bhattacharjee, learned Counsel appearing for the petitioners in support of his submissions have relied primarily on three judgments, apart from different directives issued by the Hon’ble Supreme Court on in the case of Malik Mazhar Sultan (supra). These are three unreported judgment of this Court, being the judgment of an Hon’ble Division Bench in the case of Manabendranath Ghosh & Ors. Vs. The Hon’ble High Court at Calcutta & Ors. (APOT No. 260 Of 2011, G.A. 1805/2011) delivered on 12th September, 2011, as also two Single Bench judgments in the cases of W.P. No. 10918(W) of 2011 Elisiya Mary Lakra Vs. The State of West Bengal & Ors. decided on 11th July, 2012 and W.P. No. 16485 of 2002 Kazi Abdul Hasem VS. State of West Bengal & Ors. decided on 16th May, 2003. Submission of Mr. Bhattacharya is that the actual number of vacancies would be the number of vacancies which were advertised and it is not open to the State Government or the High Court Administration to reduce the number of vacancies after the select list is published. In this regard he has relied on the judgment of this Court in the case of Manabendra Nath Ghosh & Ors. (supra). He has also taken me through a written response of the Judicial Department of the Government of West Bengal to an application filed on behalf of the petitioner in W.P. No. 565 of 2011 under the Right to Information Act, 2005. (supra). He has also taken me through a written response of the Judicial Department of the Government of West Bengal to an application filed on behalf of the petitioner in W.P. No. 565 of 2011 under the Right to Information Act, 2005. In this, reply it has been disclosed that the Commission was informed that for the year 2010, twenty three vacancies were against unreserved category, three against Scheduled Castes, six against Schedules Tribes, two against OBC and one against Physically Handicapped category and these were referred to in the reply as actual vacancies. Copy of this reply, given under memorandum no. 261-J/XIV/J15P(R)-34/11 dated 6th April, 2011 was produced before me at the time of hearing. To negate the contention of the High Court Administration that the number of vacancies occurring in the year 2010 were twenty two, he has referred to the judgment of this Court in the case of Elisiya Mary Lakra (supra). In that proceeding, the petitioner’s name had appeared in the select list and she was a candidate from the Scheduled Tribe category. Her name was subsequently deleted, but by virtue of direction of this Court given in that judgment, she was appointed even after the twenty three vacancies were filled up. He also referred to the direction of the Hon’ble Supreme Court dated 24th March, 2009 by which the High Courts and the Commission have been required to notify the existing vacancies and the anticipated vacancies. Drawing reference to the notification dated 30th September, 2010, he submitted that there were seventy two vacancies for the year 2010 and it was well within the legal capacity of the State Government and the High Court Administration to accommodate all the petitioners as their names appeared high up in the select list. Citing the judgment of the Supreme Court reported in [ (2008) 17 SCC 703 ] he submitted that the select list was to contain double the number of vacancies notified. In the instant case, as names of eighty two candidates appeared in the select list, actual vacancy should have been forty-one at least. Main contention of the petitioners thus is that after select list is published on the basis of declared number of vacancies,, the number of vacancies cannot be reduced. To establish that there were thirty five vacancies, Mr. In the instant case, as names of eighty two candidates appeared in the select list, actual vacancy should have been forty-one at least. Main contention of the petitioners thus is that after select list is published on the basis of declared number of vacancies,, the number of vacancies cannot be reduced. To establish that there were thirty five vacancies, Mr. Bhattacharya has referred to various supporting materials which I have relied on in the earlier part of the judgment, from which, he submitted, it ought to be inferred that there were actually thirty five vacancies. Mr. Ghosh, on the other hand, has argued that the number of vacancies advertised were in reality anticipated vacancies. The actual number of vacancies could be found out later on depending on the number of officers who could actually be given promotion and posting and on that basis only the Administrative Committee’s recommendation was made on 13th January, 2011. According to him, the petitioners did not have any vested legal right to maintain the writ petition as empanelment or position in a select list cannot confer any right of appointment to a candidate. On this point he relied on five decisions of the Hon’ble Supreme Court in the cases of Food Corporation of India Vs. Anu Lodh & Ors., (2005) 3 SCC 618 , Government of Orissa Vs. Haraprasad Das & Ors., (1998) 1 SCC 487 , State of U.P. & Ors. Vs. Raj Kumar Sharma, (2006) 3 SCC 330 , Madan Lal & Ors. Vs. The State of Jammu & Kashmir & Ors., AIR 1995 SC 1088 and Shankarsan Dash Vs. Union of India, AIR 1995 SC 1612 and also an unreported judgment of this Court in the case of FMA No. 60 of 2010 (Dibyendu Das Vs. The Hon’ble High Court at Calcutta) delivered on 11th March, 2011. Relying on the judgment of the Supreme Court in the case of Prafulla Kumar Swain Vs. Prakash Chandra Mishra & Ors., [(1993) supp. 3 SCC 181], he sought to distinguish between recruitment and appointment in respect of a given post. He contended that till actual act of posting takes place, in a promotional post, there can be no appointment to the post left vacant by such promotion. Prakash Chandra Mishra & Ors., [(1993) supp. 3 SCC 181], he sought to distinguish between recruitment and appointment in respect of a given post. He contended that till actual act of posting takes place, in a promotional post, there can be no appointment to the post left vacant by such promotion. Referring to the judgment of the Supreme Court in the case of Malik Majahar Sultan (supra), he submitted that the said direction itself specifies that the vacancies to be advertised are to be anticipated vacancies as three categories of vacancies have been referred to in serial no. (i) of paragraph 7D of the report. On the question of maintainability of the writ petition, I accept the proposition of law laid down by the Supreme Court in the different authorities cited on behalf of the respondents. These are all binding precedents so far as this Court is concerned. Mere empanelment cannot give rise to a vested legal right for a candidate to seek appointment in the post for which a merit list or select list is published. But in the event there is arbitrary or mala fide departure from a select list to deprive a candidate from being appointed, then on this limited ground in my opinion the Court can interfere and scrutinize the action of an appointing authority. For instance, if the person whose name appears on the top position in the merit list is bypassed and appointment is given to an individual appearing below him in the select list, then it is open to the Court to enquire into the reason for such departure from maintaining the serial in the select list in order of merit. Main case of the petitioners is that they have a vested legal right for appointment because their position in the select list comes within the vacancy declaration and they cannot be deprived from being appointed. Referring to the directives of the Supreme Court in the case of Malik Majahar Sultan (supra) it has been argued that the 2010 vacancies were sought to be filled up by inserting fresh advertisement and this is impermissible. Referring to the directives of the Supreme Court in the case of Malik Majahar Sultan (supra) it has been argued that the 2010 vacancies were sought to be filled up by inserting fresh advertisement and this is impermissible. One fact is clear to this Court that the manner in which the selection process was conducted, projection to the applicants or candidates was that there were actually thirty five vacancies and at no point of time the candidates had knowledge about the fact that these were anticipated or expected vacancies. But the questions to be addressed in these proceedings are twofold. The first is as to whether there were actually thirty five vacancies or not and secondly, whether it was permissible for the appointing authority in this case under the Rules to disclose anticipated vacancies only, without specifying the character of such vacancies. On the first question this Court has to rely on the disclosure made on behalf of the respondents on how many vacancies actually occurred in the year 2010. There is no other way for this Court to count or compute such vacancies on the basis of disclosed materials. The petitioners have also not been able to demonstrate from any of the materials disclosed that actually thirty five vacancies were available at the material point of time, available for appointment. The resolution of the Administrative Committee in the meeting held on 13th January, 2011 refers to twenty three vacancies occurring in the year 2010. These vacancies have been explained by Mr. Ghosh as vacancies on the basis of promotion of the first set of names appearing in the list contained in the notification dated 30th September, 2010. On this point it was submitted by Mr. Ghosh that vacancy does not occur immediately on issue of the order of promotion, as unless the concerned officer is released from his subsisting post, the authorities do not have the scope of appointing any person in that post. In the light of this fact, this Court accepts the stand of the High Court administration that there were actually twenty three vacancies that occurred in the year 2010 in the cadre of Civil Judge (Junior Division) or Judicial Magistrates under the West Bengal Judicial Service. Learned counsel for the petitioners, however, wanted their appointment to be made against further vacancies on the basis of subsequent promotions from the said list of 30th September, 2010. Learned counsel for the petitioners, however, wanted their appointment to be made against further vacancies on the basis of subsequent promotions from the said list of 30th September, 2010. In support of this submission, the Division Bench judgment of this Court in the case of Manabendra Nath Ghosh (supra) and the decision in the case of Elisiya Mary Lakra (supra) were relied upon. In the case of Manabendra Nath Ghosh (supra), the individual candidates who had approached this Court had been issued appointment letters but were not given posting. It was at that point of time and in that perspective they had approached this Court. The Division Bench also found that the legitimate vacancies to which they could seek appointment were diverted to carry forward vacancies of the preceding year, and in that context they were directed to be given posting. Thus there were clear vacancies in that case and the petitioners therein had been able to demonstrate that there was illegal diversion of vacancies occurring in a particular year. Mr. Bhattacharya’s contention is that there is not much distinction between being given the appointment letter and being placed in the select list. I am unable to accept this argument. While being given an appointment letter confers a candidate with an additional degree, if rights of an individual can be notionally quantified. In the event there is actual mistake in giving such appointment, such appointment may be revoked. In both situations, mistake or fraud can defeat the right which a candidate may claim on the basis of which they are given appointment or placed in the select list. But that is not the distinguishing factor so far as the petitioners in these two proceedings are concerned vis-à-vis the writ petitioners in the case of Manabendra Nath Ghosh (supra). In that case, the writ petitioners had been able to establish that there were vacancies for the year in question which were diverted. In these two proceedings, such diversions of posts have not been established. In the case of Elisiya Mary Lakra (supra) Mr. Ghosh concedes that she was given appointment beyond the twenty three vacancies. She was however the fifth candidate from the Scheduled Tribe category and even taking twenty three vacancies to be the actual vacancies, she would have been qualified for appointment as she was the fifth candidate from that category, following the roster point in the select list. Ghosh concedes that she was given appointment beyond the twenty three vacancies. She was however the fifth candidate from the Scheduled Tribe category and even taking twenty three vacancies to be the actual vacancies, she would have been qualified for appointment as she was the fifth candidate from that category, following the roster point in the select list. By ignoring her claim, illegality was committed by the respondents, as held by this Court, and in that perspective appointment was given. While it is a question that requires examination as to whether it is permissible to give appointment beyond the total number of vacancies, in exceptional circumstances Law Courts can direct creation of supernumerary posts. But on facts also, the case of Elisiya Mary Lakra (supra) can be distinguished in relation to the cases of the petitioners, as her entitlement was established as per the admitted number of vacancies relating to the very same selection process, from the Scheduled Tribe category. In the case of Kazi Abdul Hasem (supra), direction was given by this Court to publish the name of all successful candidates and on computation, the Court came to a finding that the vacancies which were being filled up were less than the number of vacancies which were required to be filled up as per the selection process in question. In this case, the actual vacancies were for twenty three. Thus I do not think the ratio of the judgment of the case of Kazi Abdul Hasem (supra) is applicable in the facts of these two petitions. The other authority which was referred to was a judgment of the Hon’ble Supreme Court in the case of Rakhi Roy Vs, High Court of Delhi, ( AIR 2010 SC 932 ). In this judgment, it has been held that vacancies cannot be filled up over and above the number of vacancies advertised. But ratio of this judgment is not directly applicable in the facts of these two writ petitions. I shall now deal with the legal position as to whether the requirement under the law is to advertise the actual appointable vacancies or anticipated vacancies. In clause 9 of 2004 Rules, the Public Service Commission has been vested with the power to forward to the State Government a list of candidates in order of merit and such list is required to be published for general information. In clause 9 of 2004 Rules, the Public Service Commission has been vested with the power to forward to the State Government a list of candidates in order of merit and such list is required to be published for general information. Each of the candidates are to be considered for appointment to the available vacant posts in the cadre. There is necessity of publishing existing vacancies, as directed in the direction of the Hon’ble Supreme Court in the order of 24th March 2009 in the case of Malik Majahar Sultan. In the instant case, however, the petitioners were all along made to believe that the actual vacancies are thirty five till the Administrative Committee of the High Court decided the actual number of vacancies in its meeting of 13th January 2011. Such projection may have created legitimate expectation on the part of the petitioners that they would be given appointment but the principle of legitimate or reasonable expectation without the support of substantive legal foundation cannot entitle one to relief. As I am satisfied that vacancy for the year 2010 was actually 23, I am unable to grant any relief to the petitioners. Error of this nature was considered in the case of Kazi Abdul Hasen (supra) and was found not to invalidate the entire selection process. The writ petitions in these circumstances, shall stand dismissed. The application being G.A. 543 of 2012 shall also stand disposed of. There shall, however be, no order as to costs. Urgent photostat certified copy of this order be given to the learned Advocate for the parties, if applied for, on usual undertakings.