JUDGMENT : D.P. CHOUDHURY, J. Challenge has been made to the inaction of the Opp. Parties in not giving employment to the petitioners in spite of their selection to the posts applied for. FACTS : 2. The factual matrix leading to the case of the petitioners is that opp. Party no.1 issued an advertisement bearing No.1/13 dated 8.5.2013 inviting applications from the eligible and intending candidates for filling up of 15 posts of Junior Clerk-cum-Copyist in the Judgeship of Bhadrak vide Annexure-1. The petitioners being eligible for the criteria, made applications and accordingly they were found selected as per the merit list prepared for Junior Clerk-cum-Typist vide office order No.191 dated 14.06.2014 vide Annexure-2. The petitioners found their place at sl. Nos.12 and 17 respectively in the merit list. Although there were 15 posts, but merit list was prepared for 19 posts. When petitioner no.1 being in sl.no.1 did not get any letter of appointment in spite of vacancies of 15 posts, he made application under R.T.I. Act. According to the information available to petitioner no.1, he found that appointment orders were issued to five candidates and remaining ten posts were left to be filled up after opening of Grama Nyayalaya at Dhamnagar and other recruitment. 3. It is stated that candidates at sl.nos.1, 3, 6, 7 and 11 were issued with appointment letters. Due to non-joining of sl.no.1, sl.no.2 was issued with the order of appointment, but sl.no.2 did not join, for which the candidate at sl.no.4 of the merit list was issued with the order of appointment and he joined in the post. It is further stated that when there is selection process started giving vacancies of 15 posts, it is illegal on the part of the opp. Parties having not filled up all the posts. The reasons of keeping ten posts vacant after opening of Grama Nyayalaya at Dhamnagar as revealed from the information available under the R.T.I. Act are only to cause delay the appointment and depriving the petitioners from being appointed. So, the petitioners having no other efficacious remedy approached this Court with a prayer for directing the opp. Parties to issue order of appointment in their favour. 4. Per contra, the opp. Parties filed counter affidavit through opp. Party no.2, wherein they submitted that the writ application is not maintainable on fact and law. It is the case of the opp. Parties to issue order of appointment in their favour. 4. Per contra, the opp. Parties filed counter affidavit through opp. Party no.2, wherein they submitted that the writ application is not maintainable on fact and law. It is the case of the opp. Parties that there was advertisement for filling up posts vide Annexure-A/2. The posts were advertised keeping in view the existing vacancies and the future vacancies to be filled up for the establishment of Grama Nyayalaya at Dhamnagar. For such Grama Nyayalaya, ten vacancies including one Nyayadhikari, one post each for Sheristadar, Junior Stenographer, Junior Clerk, Driver, Process-Server and Peon. Similarly, the Law Department has created two posts of Junior Clerk for the establishment of the court of Civil Judge (Junior Division)-cum-J.M.F.C. at Dhamnagar. 5. It is also stated in the counter affidavit that originally vacancies were six i.e. one Junior Clerk-cum-Typist in the court of Civil Judge (Junior Division)-cum-J.M.F.C., Chandbali and 5 nos. of Junior Clerk-cum-Typists in the establishment of District Judge, Bhadrak. It is stated that for existing, future vacancies and consequential vacancies, vacancies were total 15 in numbers. In the counter affidavit following has been detailed as to the vacancies in the Judgeship:- (a) Civil Judge (Jr. Divn.)-cum-JMFC, Chandbali 01 (b) District Judge Establishment, Bhadrak 05 Total 06 Future Vacancy and consequential Vacancy =09 (a) Gramya Nyalaya, Dhamnagar created by the Govt. of Odisha, in Law Deptt. Letter No.1217/L, dtd.02.02.2012 under Annexure-B/2. Jr. Clerk 02 Head Clerk 01 Total 03 (b) Civil Judge (Jr. Divn)-cum-JMFC, Dhamnagar created by the Govt. of Odisha in Law Deptt. Letter No.11747/L dtd.26.10.2012 under Annexure-C/2. Heard Clerk 01 Sr. Clerk 01 Jr. Clerk 02 Copyist 01 Total 05 (c) Civil Judge (Sr. Divn), Bhadrak Head Clerk 01 Grand Total 09 6. In subsequent clarification dated 04.05.2016 by learned District Judge, Bhadrak that due to non-opening of the court of Grama Nyayalaya, Dhamanagar, three numbers of posts of Junior Clerk could not be activated. So, there remain 12 posts out of 15 posts of Junior Clerk-cum-Typist. So, out of 12 vacancies six vacancies remained vacant as none of the S.C. & S.T. candidate could qualify. One candidate was appointed as Junior Clerk-cum-Typist under the Rehabilitation Assistance Rules. So, the total vacancies of unreserved category came to five. As the merit list was valid for one year, it has expired on 23.06.2015. So, out of 12 vacancies six vacancies remained vacant as none of the S.C. & S.T. candidate could qualify. One candidate was appointed as Junior Clerk-cum-Typist under the Rehabilitation Assistance Rules. So, the total vacancies of unreserved category came to five. As the merit list was valid for one year, it has expired on 23.06.2015. When the posts are lapsed, there is no occasion of adjusting the petitioners as Junior Clerk-cum-Typist even if they have been selected in the examination held by the concerned Authority. Since the Grama Nyayalala at Dhamnagar has not started functioning and no candidate under S.C./S.T. have qualified, there is no occasion to fill up the posts attached to the Grama Nyayalaya and other courts. It is stated that the petitioners have no basis to challenge the actions of opp. parties. Since one year has already been lapsed, there is no post to be claimed by the petitioners. It is therefore, prayed to dismiss the writ application. SUBMISSION: 7. Learned counsel for the petitioners submitted that the action of the opp. Parties is whimsical, arbitrary and illegal. He also submitted that once the merit list is prepared keeping in view of the vacancies existing and future for the period, same should be filled up when there is advertisement for filling up of the vacancies, process of recruitment commences. According to him, once selection process has started and merit list is prepared there should not be any departure from the commitment to the candidate concerned. It is also strenuously argued that the inaction on the part of the opp. Parties has caused serious hardship to the petitioners to get in service and in the event of keeping the posts vacant, the posts will lapse and the selected persons are deprived of getting their rights addressed. He further submitted that the posts are lying vacant, but the State Government is yet to fill up the same by ignoring the right of the petitioners. Once the petitioners have got their vested right by placing them in the merit list, they are to be considered for the future vacancies also. On the other hand, he submitted that the right to employment of petitioners through due process of law has been abridged by the opp. Parties, consequently filing of this case against the opp. Parties. 8. It is submitted by learned Addl. On the other hand, he submitted that the right to employment of petitioners through due process of law has been abridged by the opp. Parties, consequently filing of this case against the opp. Parties. 8. It is submitted by learned Addl. Government Advocate that the detailed analysis of existence of the posts have been provided in the counter affidavit and subsequent letter of the learned District Judge. It is also submitted that there is no post to be filled up by the opp. Parties. He further submitted that when there is no post lying vacant, it is difficult to employ both the petitioners, particularly when one year has already been lapsed after the first appointment was over. On the other hand, he totally favoured the action of the opp. Parties and further submitted to reject the writ application. POINTS FOR DETERMINATION: (I) Whether there was any vacancy available for the petitioners? (II) Is the petitioners entitled to the reliefs asked for? DISCUSSION POINT NO.I. 9. It is the admitted fact that the opp. Parties have made advertisement No.1/13 dated 08.05.2013 to fill up the vacancies of Junior Clerk-cum-Typist vide Annexure-1. Such vacancies were calculated on the basis of the existing vacancies and future vacancies. It is not disputed that the opp. Parties after holding necessary examination prepared a merit list showing names of 19 persons, whereunder petitioners’ names find place at sl.nos.12 and 17 respectively. It is also a fact that no candidate under S.C./S.T. quota was qualified. It is the undisputed fact that sl. No.1 did not join, for which sl.no.2 was issued with appointment letter vide Annexure-4. When sl.no.2 Sk.Amirullah also did not join, one Muktikanta Mohapatra (sl.no.4) was issued with appointment letter. 10. It is pertinent to quote the necessary Rule for filling up of the vacancies in the cadre of Junior Clerk-cum-Typist. Rule 6.3 of the Orissa District and Subordinate Courts’ Non-Judicial Staff Services (Method of Recruitment and Conditions of Service) Rules, 2008 (hereinafter called “the Rules”) in their amendment in 2010 enshrines in the following manner:- “(3) The competitive examination shall be conducted by the District Recruitment Committee. Rule 6.3 of the Orissa District and Subordinate Courts’ Non-Judicial Staff Services (Method of Recruitment and Conditions of Service) Rules, 2008 (hereinafter called “the Rules”) in their amendment in 2010 enshrines in the following manner:- “(3) The competitive examination shall be conducted by the District Recruitment Committee. The date on which the examination is to be held shall be fixed by District Recruitment Committee in consultation with the High Court and such recruitment committee shall fix the places at which the examination is to be held.” Sub-Rules 3, 4 and 6 of Rule-7 of the Rules prescribe in the following manner:- “(3) Considering the marks secured in the written test, one merit list for general candidate and separated merit list for each of the reserved categories shall be prepared and candidates upto ten times of vacancy in each category shall be called for Computer Science test (practical), short-hand and typewriting test, as the case may be, and the candidates selected in each practical test shall be called for viva-voce test.” “(4) On the basis of marks secured in the written test, practical test as provided in sub-rule (3) and the viva-voce test, a merit list of all candidates (both general and reserved categories) shall be prepared and there after separate merit lists for general and reserved categories shall be prepared according to the descending order of total marks.” “(6) The select list in respect of posts advertised shall remain valid for a period of one year from the date of first appointment from such list or till the date notified for next recruitment, whichever is earlier.” 11. After analysis of the aforesaid Rules, it appears that for recruitment of Junior Clerk-cum-Copyist as per the aggregate marks secured in written test, computer test and viva voce, one merit list of all candidates both general and reserved category shall be prepared and thereafter separate merit list for general and reserved category shall be prepared according to descending order. It is true that the select list remains valid for one year from the date of first appointment of such list or till the date notified for next recruitment. Now adverting to the present case it appears that a single merit list has been prepared, but not separate merit list for the reserved category of SEBC has been prepared. It is true that the select list remains valid for one year from the date of first appointment of such list or till the date notified for next recruitment. Now adverting to the present case it appears that a single merit list has been prepared, but not separate merit list for the reserved category of SEBC has been prepared. It is revealed from Annexure-1 that there was advertisement for the post of Junior Clerk-cum-Typist to fill up 15 posts with categories unreserved-5, Scheduled Caste-3, Scheduled Tribe-3, SEBC-4. However, from Annexure-2 it appears that sl. Nos. 6, 7, 9, 11, 17 and 18 were available. As two unreserved category candidates did not join, obviously it would come to vacancies of two unreserved category. It is found that one of such post was filled up by one Muktikanta Mohapatra at sl.no.4. According to the opp. Parties, total six posts have been filled up picking up sl. Nos.3,4,6,7 and 11. Out of that five, it appears that sl.no.3-Suchitra Nayak and sl.no.4-Muktikanta Mohapatra belong to unreserved category. Sl. No.6-Amit Kumar Lenka, sl.no.7-Sainarayan Sahoo belong to SEBC category and sl. No.11-Madhusmita Sutar belong to SEBC category. There is nothing contended by learned Addl. Government Advocate as to on what basis such vacancies were filled up by picking up the persons from the merit list. 12. When there is already notification of the Government to open Grama Nyayalaya at Dhamnagar, it is incumbent on the office of the learned District & Sessions Judge, Bhadrak to prepare man power for manning such Grama Nyayalaya. Before opening of the court, it is necessary to find out infrastructure and man power. The State Government has already created staff for the Grama Nyayalaya at Dhamnagar as admitted by learned Addl. Government Advocate. There was also advertisement to fill up the vacancies. It is none of the business of the appointing authority to withhold the appointment of the staff for the proposed court. It is true that if staff are appointed and no court is opened, there may be some sort of problem to be raised for their salary, but it is well known that whenever there is creation of post, allotment is made in the budget for the salary of the newly created staff. We are afraid if the vacancies are not filled up, the posts may lapse. We are afraid if the vacancies are not filled up, the posts may lapse. It is not unknown that there is dearth of Judicial Officers in the State. But when the State has created posts and allotted their salary in the budget and the recruitment process has already been started for filling up of such posts, it is not wise to keep the posts lying vacant. Apart from this, once the petitioners are selected and find their place in the merit list in accordance with the Rules framed, they got vested right to get their employment. Be that as it may, in the present case while calculating the posts as per the counter affidavit, we are of the opinion that after filing up of the five posts from the merit list and one post under Rehabilitation Assistance Scheme, there remain nine posts to be filled up as advertisement was made for 15 posts. For the court of Grama Nyayalaya at Dhamanagar there are two posts of Junior Clerk-cum-Typist sanctioned vide letter No.1217/L dated 02.02.2012. Moreover, for the court of Civil Judge (Junior Division)-cum-J.M.F.C., two posts of Junior Clerk have been sanctioned, against which one post has been filled up as per the counter affidavit submitted by the opp. Parties. On going through the merit list it appears that only the candidates from the reserved category and SEBC find their place in the merit list. As there is no separate merit list prepared for SEBC and it is submitted at bar that in the event of non-fill up of SEBC candidates the unreserved candidates shall be taken into consideration for appointment. It is found that the vacancies for SEBC are still remaining vacant and same has to be filled up. In Annexure-2 in place of SEBC vacancy the petitioners can be adjusted even if petitioner no.1 is arrayed as unreserved category and the petitioner no. 2 at sl.no.17 is in category of SEBC. We are also aware that there are other candidates above the petitioners not being adjusted, but they are all not petitioners before us. However, in the counter it is revealed that six posts of S.C./S.T. have not been de-reserved, but no reason has been assigned. 2 at sl.no.17 is in category of SEBC. We are also aware that there are other candidates above the petitioners not being adjusted, but they are all not petitioners before us. However, in the counter it is revealed that six posts of S.C./S.T. have not been de-reserved, but no reason has been assigned. Rule-5 (1) (v) and (vi) of the Orissa Reservation of Vacancies in Posts and Services (for Scheduled Castes and Scheduled Tribes) Rules, 1976 [As amended by the Orissa Reservation of Vacancies in Posts and Services (for Scheduled Castes and Scheduled Tribes) (Amendment) Rules, 1984] stated in the following manner:- “5.(1) (v) In case suitable Scheduled caste or Scheduled Tribe candidates are not available to fill up the reserved vacancies even after issue of advertisement, such vacancies shall be dereserved in accordance with the principles laid down in sub-clause (vi). (vi) Dereservation of vacancies shall be made by an appointing authority with the prior approval of the authority next above the appointing authority. After such dereservation has been made the appointing authority shall, in case of de-reservation of vacancies in a District Office intimate the fact to the District Collector concerned and in the case of dereservation of vacancies in an office of the Head of a Department or a Department of Government to the Tribal & Rural Welfare Department along with a certificate to the effect that he has followed procedure laid down in this connection with regard to dereservation.” 13. Opp. party no.1-District Judge could have taken steps to send the names from the merit list up to sl.no.17 (including sl.no.17) for recruiting them after dereserving such six posts under the aforesaid Rules. In that event the candidates from the merit list up to sl.no.17 (including sl.no.17) could have been employed. Hence, right of the petitioners to assert employment cannot be denied. Point No.I is answered accordingly. POINT NO.II. 14. Learned counsel for the petitioners submitted to issue orders of appointment in their favour in pursuance of the merit list. It is an admitted fact the merit list was valid for one year, but three posts lying vacant was not taken care of by the opp. Parties to fill up the same for the reasons which are neither correct nor legal. It is an admitted fact the merit list was valid for one year, but three posts lying vacant was not taken care of by the opp. Parties to fill up the same for the reasons which are neither correct nor legal. Once the names of the petitioners find place in the merit list, the right accrued to them to get employment and there is no rational and valid reason to decrease the number of posts having left out created posts without being filled in. The question of validity of the merit list for one year is also a point raised by the learned Addl. Government Advocate. When the names of the petitioners find place in the merit list, the vacancies are there, no valid reason is there to decrease the numbers of vacant posts, and there is no reason mentioned in the counter affidavit how it expired on 30.06.2015 without having any reason, we are of the view that the merit list of 2014 can be only valid for the petitioners and similarly situated candidates who have been deprived of their employment illegally and without any reason. When the action is taken bereft of the provisions of law and a person acquires right to get employment, the stipulation for one year for such merit list should not be taken into consideration for such candidates. Moreover, when the State Judiciary is facing acute shortage of staff to man the posts, for the larger interest of the public and litigants the expiry of the merit list shall not be considered. Hence, the petitioners are entitled to the reliefs asked for. Point No.II is answered accordingly. CONCLUSION: 15. In view of the aforesaid discussion, we are of the considered view that there are still nine vacancies before expiry of the merit list and the same were not filled up by the opp. Parties for no valid reason whatsoever. We are of the further view that the petitioners have been deprived of their employment by the opp. Parties, for which Article 14 read with Article 16 of the Constitution have been violated. Moreover, 6 posts for S.C./S.T. category should have been de-reserved under the O.R.V. Act and the Rules read with Orissa District and Subordinate Courts Ministerial Service Rules, 2008 to fill up all the vacancies up to sl.no.17 of the merit list. We, therefore, direct that the opp. Moreover, 6 posts for S.C./S.T. category should have been de-reserved under the O.R.V. Act and the Rules read with Orissa District and Subordinate Courts Ministerial Service Rules, 2008 to fill up all the vacancies up to sl.no.17 of the merit list. We, therefore, direct that the opp. Parties shall take steps to dereserve six vacancies of S.C./S.T. candidates due to their non-availability and the State Government shall do well to consider the same keeping in view of the paucity of staff in Judiciary and thereafter opp. Parties shall consider to fill up all the nine posts by filling up of the vacancies from the merit list up to sl.no.17 except the candidates already appointed. We further direct that such exercise shall be completed within a period of three months. The Writ Application is disposed of accordingly. I. MAHANTY, J. I agree.