Order Feeling aggrieved by the judgment and order dated 7th March 2012, passed by the learned single Judge in C.W.J.C. No.8280 of 2007, the respondent Bihar Public Service Commission (hereinafter referred to as ‘the Commission’) has preferred this Appeal under Clause-X of the Letters Patent. 2. The matter at issue is the selection for appointment to various services under the State of Bihar pursuant to the 46th combined competitive examination conducted by the Commission. The respondent Nos.1 and 2, reserved category candidates, have approached this Court under Article 226 of the Constitution in above C.W.J.C. No.8280 of 2007 to challenge the select list prepared by the Commission and for a direction to the Commission to revise the select list and to include the writ petitioners in the select list in place of certain reserved category candidates who were earlier placed on the select list in general category, but they opted out of the general category to claim benefit of preference in allocation to a service. 3. It appears that pursuant to the 46th combined competitive examination, the Commission prepared a select list for filling in 103 posts in various services under the State of Bihar. Out of the 103 posts to be filled in, 50% of the posts were reserved for reserved category candidates. The rest 50% of the posts were required to be filled in by appointment of unreserved category candidates. As the prevalent law enjoins that those reserved category candidates who secure qualifying marks competible with the general category candidates, they should be included in the merit list of unreserved category candidates. In other words, such reserved category candidates are included in the general merit list for 50% of the posts. Quite a few reserved category candidates were successful in finding place in general merit list. 4. In the case before us, several candidates belonging to the reserved categories secured more marks than the standard of selection for a general category candidate. They were, therefore, included in the general merit list of 1st 50% of posts. While it came to the allocation to different services, realizing that remaining as general merit candidate they would not be able to secure allocation to the preferred services, they opted out of the general merit list and sought benefit as a reserved category candidate. They were, therefore, included in the general merit list of 1st 50% of posts. While it came to the allocation to different services, realizing that remaining as general merit candidate they would not be able to secure allocation to the preferred services, they opted out of the general merit list and sought benefit as a reserved category candidate. Evidently, being at the top of the merit list amongst the reserved category candidates, the said persons were able to secure allocation according to their preference on the posts reserved for reserved category candidates. On migration of 10 of such reserved category candidates out of the general merit list, the 10 corresponding vacancies in the general merit list were filled in by the next 10 persons in the common merit list. It is this act of the Commission of pushing up the 10 candidates from the common merit list which is subject-matter of challenge before this Court. 5. According to the writ petitioners, the 10 vacancies in the general merit list had arisen due to the reserved category candidates opting out of the general merit list. Those vacancies should, therefore, be filled in by pushing up the reserved category candidates alone. The petitioners have, therefore, claimed that they being the next in rank among reserved category candidates, they had a right to be placed in those slots vacated by the reserved category candidates. We may note here that the writ petitioners have not challenged the act of the Commission in allowing migration of 10 reserved category candidates from general merit list to the respective reserved category merit list. 6. The petition was contested by the Commission. The Commission relied upon the judgment dated 1st March 2007 passed by this Court in C.W.J.C. No.321 of 2006 (Chandra Shekhar Azad vs. State of Bihar & Ors.). The Commission has maintained that a similar action by the Commission in respect of the 45th combined competitive examination had been upheld by this Court. The judgment of the learned single Judge was affirmed in Letters Patent Appeal No.382 of 2007. 7. The learned single Judge has relied upon the judgment of the Hon’ble Supreme Court in the matters of Union of India vs. Ramesh Ram { (2010) 7 SCC 234 } and of Jitendra Kumar Singh & Another vs. State of Uttar Pradesh & Others { (2010) 3 SCC 119 }. 7. The learned single Judge has relied upon the judgment of the Hon’ble Supreme Court in the matters of Union of India vs. Ramesh Ram { (2010) 7 SCC 234 } and of Jitendra Kumar Singh & Another vs. State of Uttar Pradesh & Others { (2010) 3 SCC 119 }. The learned single Judge has held that the post remaining vacant on account of migration of the reserved category candidates or on account of the reserved category candidates opting out of the general merit list must be filled in by the reserved category candidates alone. The learned single Judge has, accordingly, issued direction to the Commission to revise the select list. In the process, if any candidate is adversely affected, he be given opportunity of hearing. Therefore, this Appeal. 8. Learned Principal Additional Advocate General Mr. Lalit Kishore has appeared for the Commission. He has assailed the judgment of the learned single Judge. He has submitted that similar issue has been considered by the Hon’ble Supreme Court time and again. The Hon’ble Supreme Court has opined against the filling up of such vacancies in the merit list by the reserved category candidates on the premise that that should give undue advantage to the reserved category candidates and enhance their representation beyond 50% approved by the Hon’ble Supreme Court in the matter of Indra Sawhney vs. Union of India & Ors. { (2000) 1 SCC 168 }. Mr. Lalit Kishore has submitted that once this Court had approved the procedure adopted by the Commission and the Supreme Court has prohibited reservation in excess of 50%, the learned single Judge was not right in issuing the impugned direction to revise the select list. 9. Learned counsel Mr. Abhay Kumar Singh has appeared for the respondents-writ petitioners. He has supported the judgment of the learned single Judge. He has relied upon the judgment of the Hon’ble Supreme Court in the matter of Jitendra Kumar Singh (supra). He has submitted that in similar set of facts the Hon’ble Supreme Court has categorically held that such vacancies should be filled in by reserved category candidates alone. 10. Learned counsel Mr. Ashok Singh has appeared for the contesting respondents, the selected candidates. He has supported the Appeal. He has submitted that in similar set of facts the Hon’ble Supreme Court has categorically held that such vacancies should be filled in by reserved category candidates alone. 10. Learned counsel Mr. Ashok Singh has appeared for the contesting respondents, the selected candidates. He has supported the Appeal. He has submitted that if the order of the learned single Judge were permitted to operate, it would create an imbalance between the reserved category candidates and the others. It would result into appointment of the reserved category candidates in excess of 50% contrary to what has been held by the Hon’ble Supreme Court in the matter of Indra Sawhney vs. Union of India & Ors. (supra). In support of his submissions, Mr. Ashok Singh has relied upon the Division Bench judgment of this Court in the matter of G.V. Nutan vs. Bihar Combined Entrance Competitive Examination Board through the Controller of Examination & Ors. { 2014 (2) P.L.J.R. 725 }, and the judgments of the Hon’ble Supreme Court in the matters of Jitendra Kumar Singh (supra); and of Union of India vs. Ramesh Ram (supra). 11. At the outset we must note that no rule has been brought before us which enables the Commission to permit migration of the reserved category candidates or permit the reserved category candidates to opt out of the merit list nor there is any rule prohibiting such migration. In the Petition before us, the petitioners have not challenged the action of the Commission in permitting such migration or in permitting the reserved category candidates to opt out of the general merit list. We will, therefore, proceed on the assumption that the Commission was within its power to allow the reserved category candidates to opt out of the general merit list with a view to securing allocation to the preferred service. 12. In the matter of Jitendra Kumar Singh & Ors. (supra), similar was the issue before the Court arising from the selections made by the Uttar Pradesh Public Service Commission. In the said matter, the relevant act i.e. The Uttar Pradesh Public Services (Reservation of Scheduled Casts, Scheduled Tribes and other Backward Classes) Act, 1994, expressly prohibited such migration. 12. In the matter of Jitendra Kumar Singh & Ors. (supra), similar was the issue before the Court arising from the selections made by the Uttar Pradesh Public Service Commission. In the said matter, the relevant act i.e. The Uttar Pradesh Public Services (Reservation of Scheduled Casts, Scheduled Tribes and other Backward Classes) Act, 1994, expressly prohibited such migration. Section 3(6) thereof reads, “If a person belonging to any of the categories mentioned in Sub-section (1) gets selected on the basis of merit in an open competition with general candidates, he shall not be adjusted against the vacancies reserved for such category under Sub-section (1)”. 13. In our opinion, in view of the aforesaid express prohibition imposed by the concerned enactment, the judgment in the matter of Jitendra Kumar Singh & Ors. (supra) will have no applicability to the facts of the present case. 14. A similar issue arose before the Constitutional Bench of the Hon’ble Supreme Court in the matter of Union of India vs. Ramesh Ram & Ors. (supra). Hon’ble Court categorically held:- 72. “We sum up our answers- i) MRC candidates who avail the benefit of Rule 16(2) and 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 be offered to General category candidates. ii) By operation of Rule 16(2), the reserved status of an MRC candidate is protected so that his/her better performance does not deny him of the chance to be allotted to a more preferred service. iii) The amended Rule 16(2) only seeks to recognize the inter se merit between two classes of candidates i.e. a) meritorious reserved category candidates b) relatively lower ranked reserved category candidates, for the purpose of allocation to the various Civil Services with due regard for the preferences indicated by them. iv) The reserved category candidates "belonging to OBC, SC/ST categories" who are selected on merit and placed in the list of General/Unreserved category candidates can choose to migrate to the respective reserved category at the time of allocation of services. Such migration as envisaged by Rule 16(2) is not inconsistent with Rule 16(1) or Articles 14, 16(4) and 335 of the Constitution.” (In this judgment ‘MRC’ refers to the meritorious reserved category candidates.) 15. Such migration as envisaged by Rule 16(2) is not inconsistent with Rule 16(1) or Articles 14, 16(4) and 335 of the Constitution.” (In this judgment ‘MRC’ refers to the meritorious reserved category candidates.) 15. In view of the aforesaid clear mandate of the Constitutional Bench of the Hon’ble Supreme Court and in absence of any express or specific provision against the migration, we must hold that the action of the Commission in filling up the resultant vacancies by general merit candidates in order of merit cannot be held to be arbitrary or discriminatory. 16. In our opinion, the scheme for reservation as it is now implemented can easily be classified into two categories. 1st half are the merit candidates and 2nd half are the reserved category candidates necessarily below the standard of selection. The merit candidates are those who have attained the standard of selection. Thus, merit candidates may be the candidates in unreserved category as well as the reserved categories. Those who are included in the 2nd half of the select list are the candidates who belong to reserved categories and who necessarily have not been able to attain the standard of selection. In other words, all vacancies earmarked for the reserved category candidates are necessarily filled in by the candidates who belong to the reserved categories and who have not attained the standard of selection. 17. If we examine the matter from another angle, the way the reservation is implemented, the 50% of the posts are reserved for reserved category candidates while remaining 50% posts are filled in by merit candidates which may include the reserved category candidates also. Thus, the 1st 50% of the candidates on select list can be said to be merit candidates irrespective of their caste or community or class. If the vacancies have arisen in that general merit list on account of migration of the reserved category candidates, as in the present case, or for any other reason, those 50% of the slots meant for general merit candidates must be filled in by the candidates in order of merit alone. By inclusion of the reserved category candidates in general merit list, the representation of the reserved category candidates is in a way allowed to increase beyond 50% of the posts. 18. Let us for the time being accept the claim made by the writ petitioners. By inclusion of the reserved category candidates in general merit list, the representation of the reserved category candidates is in a way allowed to increase beyond 50% of the posts. 18. Let us for the time being accept the claim made by the writ petitioners. In that case the petitioners who are reserved category candidates who have not been able to attain the standard of selection will be included in the general merit list. Such a situation will be contrary to the reservation policy itself. It will also be contrary to the directives issued by the Hon’ble Supreme Court in the matter of Indra Sawhney (supra). It will also mean more than 50% of the selection below the general standard of selection. It will also undermine the efficiency in the civil services to a greater extent. 19. There is one more angle to examine this issue. Let us assume that in this very case the ten reserved category candidates who migrated to unreserved categories, though were at the top of the list in the concerned category, did not attain the standard of selection. In that case they would still be in the select list of the reserved category candidates. If the said ten candidates had occupied ten reserved category slots, like number of reserved category candidates would have been pushed out of the merit list of the reserved category candidates. It is a fortuitous circumstance that ten reserved category candidates were meritorious enough to attain the standard of selection which resulted into inclusion of ten more reserved category candidates. It is but a settled law that a mere selection does not give an indefeasible right to appointment to a candidate. Similarly, a fortuitous inclusion in the merit list also will not confer a right to selection and appointment unto the reserved category candidates. The writ petitioners, therefore, cannot claim their inclusion in the general merit list as of right. The slots on which they claim their inclusion were always meant for the merit candidates alone and has to be filled in by merit candidates alone. 20. For the aforesaid reasons, we allow this Appeal. The impugned judgment and order dated 7th March 2012, passed by the learned single Judge in C.W.J.C. No.8280 of 2007 is set aside. C.W.J.C. No.8280 of 2007 is dismissed. 21. Interlocutory Application stands disposed of.