JUDGMENT : 1. Heard learned advocate Mr. K.B. Pujara for the petitioner, learned advocate Mr. R.A. Mishra for respondent No.3 and Mr. Krutik Parikh, learned Assistant Government Pleader for the Respondent Nos.1 and 2. Perused the record. 2. The petitioner herein has challenged the act of the respondent no.3 in not filling up the post of Vidhya Sahayak reserved for scheduled caste candidate as per advertisement dated 16.4.2007. For such claim, petitioner is relying upon the undisputed fact that the reservation for scheduled caste candidate for Junagadh district is 9% and considering the reservation for scheduled caste women candidate though petitioner is entitled to be appointed as such, the respondents have failed to appoint her and, therefore, petitioner has prayed for quashing and setting aside the illegal action of the respondent in not filling up the requisite vacancies as per reservation policy and advertisement dated 16.4.2007 and, thereby, to direct the respondents, more particularly, respondent no.3 to grant appointment to the petitioner as ATD Vidhya Sahayak forthwith on the vacancies required to be filled up as per 9% reservation for scheduled caste and 30% reservation for women candidate in the concerned district i.e. Junagadh. It is also prayed to hold and declare that respondent no.3 is duty bound to fill up atleast three vacancies by selecting scheduled caste candidates out of 32 candidates selected on the post of ATD Vidhya Sahayak pursuant to advertisement dated 16.4.2007 because the reservation of scheduled caste candidate for the district is 9%. 3. The factual details may be summarized by recollecting that on 16.4.2007 respondent no.3 issued advertisement for recruitment of 32 ATD Vidhya Sahayak. Petitioner being qualified and eligible for the post, she applied for the same. The petitioner has received an interview call letter dated 19.5.2007 but stating that the petitioner would be at Sr. No.1 in waiting list of scheduled caste though atleast three vacancies were required to be filled up by scheduled caste candidate and thereby though petitioner being of scheduled caste women is entitled to the appointment, her name was disclosed at Sr. No.1 in waiting list of scheduled caste. Petitioner appeared before the interview committee on 28.5.2007, as called for, but as noted hereinabove, her name has been placed at Sr. No.1 in waiting list. Therefore, petitioner had represented her grievances to the respondent on 5.6.2007. No.1 in waiting list of scheduled caste. Petitioner appeared before the interview committee on 28.5.2007, as called for, but as noted hereinabove, her name has been placed at Sr. No.1 in waiting list. Therefore, petitioner had represented her grievances to the respondent on 5.6.2007. However, respondent could not decide the issue in time and ultimately petitioner received a letter dated 26.3.2008 from the respondents conveying in very vague manner that roster has been maintained as per rules and recruitment has been done as per rules and that appointment of scheduled caste, scheduled tribe and other backward class has to be carried out as per Rules and, therefore, there is no injustice caused to the petitioner. 4. Therefore, petitioner has no option but to challenge such order by filing present petition seeking to quash such communication dated 24.3.2008 and to seek direction against the respondent for her appointment. Since the facts are very clear and obvious on record regarding position of petitioner with reference to her class in roster and since respondents are also aware about applying such roster in accordance with Rule, factual details are avoided to be reproduced herein. 5. In support of her claim, petitioner has relied upon several documents namely; certificate of mark sheet, advertisement dated 16.4.2007, interview call letter dated 19.5.2007, Government Resolution dated 30.9.1994, notification dated 9.4.1997, representation dated 5.6.2007 and reply of respondent dated 24.3.2008. Perusal of such documents makes it clear that when Government Resolution is confirming Serial number of candidate belonging to particular category in Appendix XIII with Government Resolution dated 30.9.1994 which confirms that the scheduled caste candidate should be appointed at Sr.Nos.1, 12, 23, 34, 45, 56, 66, 78 and 89, the Officers of the respondents have no authority whatsoever to change such roster or Serial Number of reservation of particular class of candidate in any manner whatsoever. For the purpose, all the documents on record specifically confirms the claim of the petitioner that she is absolutely right when she is claiming that being scheduled caste women candidate when she is otherwise eligible on merits, she could not be ignored based upon different type of roster being applied by the respondent, as it is done in the present case. 6. 6. However, the respondents have resisted the petition by filing the affidavit in reply dated 15.4.2008 annexing one Government Resolution dated 8.3.1999 and list of roster and candidate as per their interpretation. However, it becomes clear and obvious that the list and roster disclosed by the respondent and produced at Annexure `I’ collectively is practically against the provisions of Government Resolution dated 30.9.1994 and notification dated 9.4.1997. In any case, any of the officer of the respondent is neither entitled nor supposed to change the provision and interpretation in Government Resolution based upon on their own understanding or wisdom, more particularly, when concerned rule is providing a prescribed schedule disclosing that which class of candidate is to be selected at which Serial Number so as to apply proper reservation of different percentage for different categories of candidate and, therefore, when roster is prescribed in Government Resolution, such roster is to be adhered to strictly without any deviation from it. Record practically shows that respondents have failed to adhere to such roster as per Rules and, therefore, their selection process is vitiated being arbitrary and thereby if respondents are not adhering to settled legal position, there is no option but to allow this petition by quashing the impugned order. 7. Therefore, the petitioner has, in his affidavit in reply specifically contended that respondents have violated the Government Resolution which is not permitted pursuant to judgment in the case of R.K. Sabharval v. State of Punjab reported in AIR 95 SCC 1371 and J.C. Mallick v. Railway Ministry reported in 1978(1) SLR 844. Since such judgments are violated by the respondents while not adhering to the Government Resolution on the issue of reservation. Paragraph 3 of such affidavit is relevant which reads as under: “3. That in R.K. Sabharwal v. State of Punjab reported in AIR 1995 SC 1371 and J.C. Mallick v. Railway Ministry as well as Government Resolution dated 8.3.1999 it has been clearly laid down that the candidates of Reserved Categories who are appointed on the basis of their merit and not because of reservations are to be counted against open category and not against Reserved Categories. Same is the law laid down in Indraw Sawhny v. Union of India, AIR 1993 SC 477 and in Ritesh R. Sah v. Dr. Y.L. Yamul, AIR 1996 SC 1378 . Same is the law laid down in Indraw Sawhny v. Union of India, AIR 1993 SC 477 and in Ritesh R. Sah v. Dr. Y.L. Yamul, AIR 1996 SC 1378 . Still however, admittedly, the respondents in the present case have counted as many as three scheduled caste cadndiates, namely, Vaja Minal Mitha, Gohel Anilkumar Valji and Gohel Jayantilal Meraman who are at Sr.Nos.81, 90 and 91 respectively (Page 50) who are appointed on the basis of merits and not on the basis of reservations, as Reserved Category candidates and not on the Open Category and because of that in the last recruitment of 32 ATD candidates though the respondents are required to make appointment of atleast three S.C. Candidates they have made appointment of only one SC candidate and the petitioner has been wrongfully deprived of the appointment as SC Woman candidate. Moreover, any excess appointments of SC candidates made several years back cannot deprive the present petitioner of her right to the appointment on the specious ground that in the past excess number of SC candidates were appointed and therefore this time only one SC candidate is appointed instead of three SC candidates out of total 32 vacancies though the reservation for SC is 9%.” 8. By such averments, the respondents have tried to explain that how they have followed the respondents by their affidavit dated 28.4.2008 but when law is quite clear that roster which is prescribed with the Rules cannot be changed, the stand of the respondents is not correct. 9. Whereas, so far as factual details are concerned, again petitioner has explained it in her rejoinder affidavit dated 30.4.2008 which reads as under: “1. That admittedly the reservation for S.C. In Junagadh district is 9%. Admittedly from the year 1999 to year 2005 the respondent no.3 made total recruitment of 137 posts of ATD Vidhya Sahayak out of which 14 candidates were of S.C. (excluding the 3 S.C. Candidates appointed on the basis of their merit). However, according to the Roster of Junagadh District, copy of which is annexed herewith at Annexure `J’ hereto, out of 137 posts of ATD Vidhya Sahayak 13 posts are required to be filled up by S.C. Candidates. Thus, there may be one excess appointment of S.C. Candidate. 2. However, according to the Roster of Junagadh District, copy of which is annexed herewith at Annexure `J’ hereto, out of 137 posts of ATD Vidhya Sahayak 13 posts are required to be filled up by S.C. Candidates. Thus, there may be one excess appointment of S.C. Candidate. 2. In the present recruitment 32 posts of ATD Vidhya Sahayak are advertised, out of which only one posts is reserved for S.C. Candidate. This is a patent illegality because as against total recruitment of 137 + 32 = 169 A.T.D. Vidhya Sahayak, 16 posts are required to be filled up by S.C. Candidates as per the Roster. The respondent no.3 is therefore duty bound to reserve atleast two posts for S.C. Candidates in the present recruitment as 14 S.C. Candidates have been appointed till the previous recruitment. Thus, the petitioner is clearly entitled to the appointment. The relevant details of total recruitment made from the year 1999 to the year 2007 and the appointments of S.C. Candidates actually made and appointments of S.C. Candidates required to be made as per the Roster are given in the Tabular Form at Annexure-K hereto. 3. It is pertinent that as per the Roster, out of total 169 appointments 16 SC candidates are required to be appointed at Sr. Nos.1, 12, 23, 34, 45, 56, 66, 78, 89, 101, 112, 123, 134, 145, 156 and 166 of the Roster of Junagadh District. As against that, admittedly, as per Page 45, the respondent no.3 has made appointment of only 15 S.C. Candidates (excluding the 3 S.C. Candidates appointed on the basis of their merit). Hence, one S.C. Candidate is still required to be appointed.” 10. In view of above facts and circumstances, now, when it becomes clear from Annexure `K’ and from all the documents on record that petitioner has been wrongfully denied her legitimate right to be appointed on the given post only because of wrong interpretation and application of provisions of reservation and consideration of merits by the respondent, the petition needs to be allowed, as prayed for. 11. So far as modality of appointment after such litigation is concerned, following decisions are relevant: [a] Manoj Manu & Anr. vs. Union of India & Ors. 11. So far as modality of appointment after such litigation is concerned, following decisions are relevant: [a] Manoj Manu & Anr. vs. Union of India & Ors. reported in (2013) 12 SCC 171 [b] Sasidhar Reddy Sura vs. State of Andhra Pradesh reported in (2014) 2 SCC 158 [c] Patel Rakeshkumar Dharamdas vs. State of Gujarat in unreported judgment dated 26.07.2016 in Misc. Civil Application (For Review) No.3397 of 2015 in Special Civil Application No.1282 of 2011 The sum and substance of all above cited cases is to the effect that all such cases where petitioner is entitled to appointment after prolonged litigation, though such petitioner shall get the seniority from the date of their entitlement for appointment it is with retrospective effect without financial benefit i.e. arrears of pay for all such period, since such petitioners are not working for all such period. 12. In view of above, petition is partly allowed. Thereby, respondents are directed to appoint the petitioner on the post of ATD Vidhya Sahayak with effect from date of appointment of other candidates who are appointed as per same advertisement dated 16.4.2007. However, her seniority shall be as per her merit and available vacancy according to the roster but without backwages. 13. Rule is made absolute to the aforesaid extent. Direct Service is permitted.