C.A.V. ORDER I have heard learned counsel appearing for the petitioner, the respondent nos. 2 to 5 and have perused the records of this case. 2. Through this writ application the petitioner seeks quashing of memo no. 162/Estab/09 dated 15.6.2009, as contained in Annexure 6, by which the respondent no. 5, Dr. Lalit Sagar has been communicated that he has been appointed as Principal under Veer Kunwar Singh University, Ara and has been posted at Jag Jivan College, Ara and further for direction to the University concerned to appoint the petitioner on the post of Principal. 3. It is contended on behalf of the petitioner that private respondent, though having less marks than the petitioner and was placed below the petitioner in the selection list, has been appointed on the vacancy caused due to non joining of Dr. Satish Singh Chandra, who was appointed on the 7th vacancy under General Category. 4. Short facts which should be necessary for consideration of this case stand narrated as under: The Veer Kunwar Singh University had published advertisement inviting the candidates for appointment on 13 posts of Principal in different constituent colleges of the University vide Annexure 1 dated 11.9.2008. Seven posts were to be filled up from General Category, two posts were reserved for Most Backward Caste, two posts were reserved for Other Backward Caste and two posts were reserved for Scheduled Caste. The petitioner duly applied for his appointment under General Category and was called for interview on 9.6.2009. The selection list was prepared on the basis of marks obtained by the candidates. The chart as appended as Annexure 3 shows that the petitioner received 79.7 grand total marks in comparison to private respondent who was given 77.6 marks. Accordingly, a panel was prepared which is reflected from Annexure 4. In the panel the petitioner was placed at sl. No. 9 in General Category whereas the private respondent was placed at sl. No. 3 in the category reserved for Backward Caste. Dr. Satish Singh Chandra was placed at sl. No. 7 in the General Category whereas one Dr. Anil Kumar Singh was placed at sl. No. 8 in the General Category as well as sl. No. 1 in the Backward Category. No. 3 in the category reserved for Backward Caste. Dr. Satish Singh Chandra was placed at sl. No. 7 in the General Category whereas one Dr. Anil Kumar Singh was placed at sl. No. 8 in the General Category as well as sl. No. 1 in the Backward Category. Thereafter, vide notification as contained in Annexure 5 dated 12.6.2009 appointment was offered to the persons mentioned therein on the post of Principal in the services of Veer Kunwar Singh University, Ara and they were required to join on the posts reflected against their names. From the list it appears that about 13 persons were appointed. The list does not include either the petitioner or the respondent no. 5 in view of the fact that the petitioner was at sl. No. 9 in the General Category list whereas respondent no. 5 was at sl. No. 3 in the Backward Caste category and vacancy available in the Backward Caste Category was only two. 5. It appears from Annexure 5 that appointed persons were directed to submit their joining by 18th June, 2009. The person at sl. No. 8 of the General List and Sl. No. 1 in the Backward Caste Category, viz. Dr. Anil Kumar Singh joined on 13.6.2009 which would be apparent from Annexure 7 which is a provisional pay fixation order of Principals appointed vide Annexure 5. However, the selected person who was placed at sl. No. 7 in the General Category, viz., Dr. Satish Singh Chandra filed an application which is contained as Annexure 10 to the reply filed on behalf of the petitioner to the counter affidavit of the respondent University. He had informed the Vice Chancellor that in view of his selection on the post of Principal, Magadh University, Bodh-Gaya, he would not joined as Principal in Veer Kunwar Singh University, Ara. Thereafter, impugned notification dated 15.6.2009 as contained in Annexure 6 was issued under the orders of the Vice Chancellor appointing Dr. Lalit Sagar, i.e., respondent no. 5 in place of Dr. Satish Singh Chandra. 6. Mr. Thereafter, impugned notification dated 15.6.2009 as contained in Annexure 6 was issued under the orders of the Vice Chancellor appointing Dr. Lalit Sagar, i.e., respondent no. 5 in place of Dr. Satish Singh Chandra. 6. Mr. Basant Kumar Choudhary, learned senior counsel appearing for the petitioner has submitted that from conjoint reading of Annexure 4 and Annexure 5 it would appear that seven persons from top were offered appointment on the post of unreserved post as from Annexure 4 it is quite apparent that only seven posts for General Category were available that would definitely mean that Dr. Satish Singh Chandra at sl. No. 7 was appointed under General Category and Dr. Anil Kumar Singh who was at sl. No. 8, who belonged to Backward Caste Category was appointed on the first post reserved for Backward Caste Category. On second which was reserved for Backward Caste Category Dr. Navin Kumar was appointed and was placed at sl. No. 9 in Annexure 5. The aforesaid Dr. Anil Kumar Singh joined on 13.6.2009 as a Backward Caste candidate. Thereafter, on 15.6.2009 Dr. Satish Singh Chandra had written Annexure 10 informing that he would not join as Principal in Veer Kunwar Singh University, Ara. In the aforesaid background it has been contended that, due to non joining of a candidate, a vacancy was created in unreserved category, thus, that should have been filled up by unreserved or General Category candidate next in the list. The petitioner being next to Dr. Satish Singh Chandra in the merit list, as Dr. Anil Kumar Singh, who was placed at Sl. No. 8 had already joined on the vacancy reserved for OBC, should have been appointed. However, a person much below to him in the merit list, i.e., respondent no. 5 has been given appointment vide Annexure 6. Thus, it is contended that the said notification should be quashed and direction should be given to appoint the petitioner. 7. A counter affidavit, two supplementary counter affidavits have been filed on behalf of the University. Counter affidavit as well as a rejoinder to the supplementary counter affidavit have been filed on behalf of the respondent no. 5. A Reply to the counter affidavit has also been filed on behalf of the petitioner. 8. The stand of the University in the counter affidavit is that after non joining of Dr. Counter affidavit as well as a rejoinder to the supplementary counter affidavit have been filed on behalf of the respondent no. 5. A Reply to the counter affidavit has also been filed on behalf of the petitioner. 8. The stand of the University in the counter affidavit is that after non joining of Dr. Satish Singh Chandra that post became vacant and it was filled up by a candidate of unreserved category, namely, Dr. Anil Kumar Singh because he had secured more marks than the petitioner. Due to appointment of Dr. Anil Kumar Singh under General Category as stated above, one post of reserved category remained vacant and on that vacant post Dr. Lalit Sagar who was at sl. No. 3 of such category was appointed. However, at the same time it has also been stated that Dr. Anil Kumar Singh was shifted from Backward Caste Category to General Category as he was having higher marks than the petitioner, thus, one reserved post became vacant and that had led to the appointment of Dr. Lalit Sagar on the post under reserved category. 9. On such assertions having been made on behalf of the University, it was directed vide order dated 7.3.2013 to produce the order under which the claimed decision regarding shifting of Dr. Anil Kumar Singh to General Category was taken by the competent authority. Thereafter, a supplementary counter affidavit was filed stating that the order recorded in margin of the application dated 15.6.2009 filed by Dr. Satish Singh Chandra informing the Vice Chancellor that he would not be joining, is the only order available on record having been passed for the concerned purpose. 10. Learned counsel appearing for the respondent no. 5 has stated in his rejoinder that such order is not the complete order rather the complete order is one which has been appended with his rejoinder which also shows further endorsement dated 15.6.2009. From the aforesaid document it appears that on 15.6.2009 following endorsement has been made. “R Pl. notify the next person in the pannel in place of Dr. Satish Singh Chandra immediately. Sd/- 15.6.09” Further it has been endorsed by the concerned competent authority as follows: “S.O.I.(Estab) As per orders. Sd/- 15.6.09” 11. It is submitted that aforesaid endorsement were made by the Vice Chancellor and the Registrar of the University. 12. “R Pl. notify the next person in the pannel in place of Dr. Satish Singh Chandra immediately. Sd/- 15.6.09” Further it has been endorsed by the concerned competent authority as follows: “S.O.I.(Estab) As per orders. Sd/- 15.6.09” 11. It is submitted that aforesaid endorsement were made by the Vice Chancellor and the Registrar of the University. 12. Upon appreciation of rival contention it appears that following issues emerge for determination in this case: (I) Whether Dr. Anil Kumar Singh was appointed on the unreserved category or appointed under the category reserved for Backward Caste? (ii) Whether there could have been any shifting of Dr. Anil Kumar Singh from Backward Caste Category to General Category after refusal of Dr. Satish Singh Chandra to join the last post at sl. No. 7 of the General Category? (iii) Whether the vacancy which has cropped up after refusal of Dr. Satish Singh Chandra to join as Principal, should have been filled up from unreserved (General Category) or from the Backward Caste Category? (iv) Whether the petitioner should have been appointed or appointment of respondent no. 5 is legal and valid? 13. In view of the fact that all the aforesaid issues are related and intertwined, they are being considered together. 14. Learned counsel appearing for the respondent no. 5 has submitted that Dr. Anil Kumar Singh who was senior to the petitioner in the merit list has been appointed on the post of General Category due to refusal of one of the General Category who has been appointed. However, his appointment has not been challenged by the petitioner, therefore, no relief should be granted to the petitioner in the absence of that. It has next been contended on behalf of the respondent no. 5 that even assuming that Dr. Anil Kumar Singh was appointed on Backward Caste Category, the moment the post again became vacant in General Category after non joining of Dr. Satish Singh Chandra, that ought to have been filled up by appointing Dr. Anil Kumar Singh in the General Category itself as he was above the petitioner in the merit list which had eventually been done. Thus, due to his shifting in unreserved category, a post became available under Backward Caste Category which was filled up by appointing the respondent no. 5. Learned counsel for the respondent no. Anil Kumar Singh in the General Category itself as he was above the petitioner in the merit list which had eventually been done. Thus, due to his shifting in unreserved category, a post became available under Backward Caste Category which was filled up by appointing the respondent no. 5. Learned counsel for the respondent no. 5 has placed reliance upon a decision of the Apex Court rendered in Union of India Versus Ramesh Ram and others [(2010) 7 Supreme Court Cases 234] to impress upon this Court that when a candidate from the merit list gets adjusted from the reserved category to general pool, the same creates corresponding vacancies in the reserved category if such candidate is there in both the lists. 15. Learned counsel appearing for the petitioner also places reliance upon the same judgment of the Apex Court. It has urged on behalf of the petitioner that since Dr. Anil Kumar Singh was in both lists, i.e., general as well as Backward Caste Category but was adjusted in the reserved category as he could not be appointed in unreserved category, that would create a vacancy in the General Category only if any person from that list does not join. 16. This Court had also called for the original records of the entire proceeding of the selection. Though the University has taken a stand that Dr. Anil Kumar Singh, was initially appointed on the post reserved for Backward Caste Category, however, was shifted later on in unreserved or general category due creation of vacancy on refusal of Dr. Satish Singh Chandra to join, thus, a post under Backward Caste Category became vacant due to such shifting and upon that the respondent no. 5 has been appointed, however, it is absolutely unanswered by the private respondent or by the University that as to how Dr. Anil Kumar Singh still remained in the panel even after his joining against the vacancy available for OBC so that such shifting could have been done subsequently. The stand of the respondent no. 5 that Dr. Anil Kumar Singh, who was above the petitioner in the merit list, was appointed against the General Category itself has no legs to stand in view of the fact that only seven vacancies were there in the General Category, which would be apparent from Annexure 1, and seven candidates starting from Dr. Janeshwar Singh and ending at sl. Anil Kumar Singh, who was above the petitioner in the merit list, was appointed against the General Category itself has no legs to stand in view of the fact that only seven vacancies were there in the General Category, which would be apparent from Annexure 1, and seven candidates starting from Dr. Janeshwar Singh and ending at sl. No. 7 Dr. Satish Singh Chandra were already given offer of appointment vide Annexure 4 as well as notification as contained in Annexure 5. It is further apparent that Dr. Anil Kumar Singh who was at sl. No. 8 in the merit list as well as Dr. Navin Kumar were appointed against the vacancy reserved for Backward Caste Category otherwise, if Dr. Anil Kumar Singh was appointed as General Category then the notification as contained in Annexure 5 ought to have contained the name of the respondent no. 5 after Dr. Navin Kumar having been appointed against the Backward Caste Category which is admittedly not the case. That apart it is apparent that Dr. Anil Kumar Singh had already joined on 13.6.2009 itself, i.e., before any application having been filed by Dr. Satish Singh Chandra indicating his unwillingness to join the post as the same was admittedly filed on 15.6.2009. Thus, it is evident that on 13.6.2009 Dr. Anil Kumar Singh had joined against the first post reserved for Backward Caste Category. Now the question would arise as to whether, after refusal shown by Dr. Satish Singh Chandra to join the post on 15.6.2009, there could have been any shifting of Dr. Anil Kumar Singh as General Category candidate as he was just below to Dr. Satish Singh Chandra at sl. No. 8? On such issue the Apex Court has clearly laid down in Union of India Versus Ramesh Ram and others (supra) as follows: “36. We must also take note of the fact that when MRC candidates get adjusted against the reserved category, the same creates corresponding vacancies in the general merit list (since MRC candidates are on both lists). These vacancies are of course filled up by general candidates. Likewise, when MRC candidates are subsequently adjusted against the general category [i.e. without availing the benefit of Rule 16(2)], the same will result in vacancies in the reserved category which must in turn be filled up by wait-listed reserved candidates. These vacancies are of course filled up by general candidates. Likewise, when MRC candidates are subsequently adjusted against the general category [i.e. without availing the benefit of Rule 16(2)], the same will result in vacancies in the reserved category which must in turn be filled up by wait-listed reserved candidates. Moreover, the operation of Rule 16 does not result in the ouster of any of the candidates recommended in the first list. Many of the wait-listed candidates are accommodated in the second stage, and the relatively lower ranked wait-listed candidates are excluded. It is pertinent to note that these excluded candidates never had any absolute right to recruitment or even any expectation that they would be recruited. Their chances depend on how MRC candidates are adjusted. 39. A significant aspect which needs to be discussed is that the aggregate reservation should not exceed 50% of all the available vacancies, in accordance with the decision of this Court in Indra Sawhney v. Union of India5. If MRC candidates are adjusted against the reserved category vacancies with respect to their higher preferences and the seats vacated by them in the general category are further allotted to other reserved category candidates, the aggregate reservation could possibly exceed 50% of all of the available posts. 42. Therefore, we are of the firm opinion that MRC candidates who avail the benefit of Rule 16(2) and are eventually adjusted in the reserved category should be counted as part of the reserved pool for the purpose of computing the aggregate reservation quotas. The seats vacated by MRC candidates in the general pool will therefore be offered to general category candidates. This is the only viable solution since allotting these general category seats (vacated by MRC candidates) to relatively lower-ranked reserved category candidates would result in aggregate reservations exceeding 50% of the total number of available seats. Hence, we see no hurdle to the migration of MRC candidates to the reserved category.” 17. It would be apparent from the aforesaid decision that if a candidate belonging of unreserved category is adjusted in reserved category, the vacancy arising out after such adjustment has to be filled up from unreserved category. However, if a candidate is shifted from reserved pool to general list then that will create a vacancy in reserved pool. In the case in hand the situation is that Dr. However, if a candidate is shifted from reserved pool to general list then that will create a vacancy in reserved pool. In the case in hand the situation is that Dr. Anil Kumar Singh, who was at sl.no.8 in the general list could not be offered appointment in that category as there were only 7 vacancies available. Therefore, he was obviously given offer of appointment under reserved category but at the same time such shifting did not create any vacancy in general category due to his joining on 13.06.2009 against aforesaid offer. The vacancy was created after refusal of joining by Dr. Satish Singh Chandra in the general category. In my considered opinion, once Dr. Anil Kumar Singh joined the post of Principal under reserved category at the place of posting shown in Annexure-5, he was not available, thereafter, in the selection panel for reconsideration of appointment in the general category. 18. Had Dr. Satish Singh Chandra shown his unwillingness to join the post prior to joining of Dr. Anil Kumar Singh then, no doubt, Dr. Anil Kumar Singh could have automatically been shifted under the General Category as he was placed next in the unreserved category. However, once he has been placed on the top of the list of Backward Caste Category and has already joined on the first post reserved for Backward Caste Category, in my considered opinion, that option was not open for the University to shift him for the General Category as he has already joined the post and was no more available in the selection list as stated above. That apart, it did not appear from perusal of the entire original record of the selection and appointment procedure that either there was any application having been filed by Dr. Anil Kumar Singh or there was any order of the competent Authority indicating such shifting of Dr. Anil Kumar Singh in the General Category. The respondents are banking upon an endorsement made by the Vice Chancellor on Annexure 10 or the complete Annexure R5/1 annexed in the rejoinder filed on their behalf or respondent no. 5 which only indicates that a direction was given to notify the next person in the panel in place of Dr. Satish Singh Chandra. The next person of the list, i.e., Dr. 5 which only indicates that a direction was given to notify the next person in the panel in place of Dr. Satish Singh Chandra. The next person of the list, i.e., Dr. Anil Kumar Singh already having joined on the first post on 13.6.2009 reserved for Backward Caste Category, as would be evident from notification as contained in Annexure 5, for all practical purposes the next person in the panel was the petitioner, Dr. Narendra Kumar who was placed at sl. No. 9. 19. In my considered opinion, once the vacancy was filled up after joining of the concerned candidate in the Backward Caste Category, it was not open for the University authority to shift such persons in the general list even without any request having been made by such candidate or any specific order having been passed with regard to that. Situation would have been different if Dr. Satish Singh Chandra would have shown his unwillingness on joining the post before joining of Dr. Anil Kumar Singh. Thus, in my considered opinion, the decision of the Apex Court in Union of India Versus Ramesh Ram and others (supra) would not come to the rescue of respondent no. 5. So far the issue of non joinder of Dr. Anil Kumar Singh is concerned, he would not be necessary party in view of the fact that he was already appointed against a vacancy from reserved pool. The petitioner has not challenged his appointment. That apart, it does not appear that he had ever made any request for his shifting in General Category or there was any order of his shifting in general category which is available in the entire record that has been produced before me for perusal by the University. Since, Dr. Anil Kumar Singh had already joined, he would be unaffected by the result of this case. Thus, there would be no reason as to why this writ application would fail for non joinder of Dr. Anil Kumar Singh as even if the petitioner succeeds he would remain appointed as Principal. 20. However, in view of the discussion as above, in the opinion of this Court, there was no occasion for the authority concerned to appoint the respondent no. 5 on the vacancy created due to non joining of Dr. Satish Singh Chandra as the vacancy was to be filled up from unreserved category. 21. 20. However, in view of the discussion as above, in the opinion of this Court, there was no occasion for the authority concerned to appoint the respondent no. 5 on the vacancy created due to non joining of Dr. Satish Singh Chandra as the vacancy was to be filled up from unreserved category. 21. As a result, all the issues framed are decided in favour of the petitioner and as such, this writ application succeeds. The notification as contained in Annexure 6 appointing the respondent no. 5 is quashed and set aside and it is held that petitioner being next in the panel of general category would be entitled for appointment. Let the University authorities take a fresh decision and come up with necessary notification in view of the observations and findings recorded by this Court as above within six weeks from the date of receipt / production / communication of this order. It is made clear that none of the parties have raised any issue other than that those which have been considered, as above, at the time of hearing.