JUDGMENT : Dr. D.P. Choudhury, J. This writ petition has been filed challenging the advertisement made vide Annexure-5 with regard to the recruitment of Salaried Amin and for consequential relief. FACTS : 2. Short of unnecessary details the case of the petitioner is that the petitioner having passed +2 Upasastri and Survey Training Certificate applied for the post of Salaried Amin in pursuance of the advertisement made by opposite party No.2 on 11.5.2012. Be it stated, the advertisement was purportedly made for filling up of one post of Salaried Amin under un-reserved category. The petitioner in the recruitment test got succeeded amongst three successful candidates. His name was placed at Sl. No.2 whereas one Sanjib Kumar Barik finds his name at Sl. No.1. Since there was one vacancy, the said post was filled up by Shri Barik by appointing him on 16.4.2013. 3. It is averred, inter alia, that before completion of one year from the date of first appointment, the opposite parties made advertisement on 7.5.2013 (Annexure-5) to fill up another single post of Salaried Amin showing the same under reserved category (S.T.) in violation of the Orissa District and Sub-ordinate Courts Non-Judicial Staff Service (Method of Recruitment and Conditions of Service) Rules, 2008 (hereinafter called “the Rules, 2008”). 4. It is stated that the advertisement made in 2013 should have been made for the post of un-reserved category because the post fell vacant due to superannuation of Shri Salil Kumar Dash who belongs to un-reserved category. So, the petitioner is challenging the advertisement which was made before completion of one year from the date of first appointment keeping the said vacancy for the candidate of reserved category although such post was required to be filled up due to superannuation of Shri Salil Kumar Dash, a member of the un-reserved category. Hence, the petitioner prays to quash the advertisement made under Annexure-5 with regard to Salaried Amin and to direct the opposite parties to appoint him as Salaried Amin against the existing vacancy. 5. Per contra, the opposite parties filed counter affidavit and additional affidavit refuting the allegation made in the writ petition. It is admitted by the opposite parties that there was advertisement in 2012 to fill up the post of one Salaried Amin under unreserved category and the candidate who topped the merit list was given appointment. 5. Per contra, the opposite parties filed counter affidavit and additional affidavit refuting the allegation made in the writ petition. It is admitted by the opposite parties that there was advertisement in 2012 to fill up the post of one Salaried Amin under unreserved category and the candidate who topped the merit list was given appointment. The opposite parties in the additional affidavit stated that as per 80 point Model Roster due to retirement of one Nidhiram Behera a single post of Salaried Amin was to be filled up for the S.T. category in 2012 but by mistake the advertisement was made for filling up of the vacancy under unreserved category. Since the advertisement was made for unreserved category and one Sanjib Kumar Barik who belongs to unreserved category and topped the merit list, was appointed. 6. It is further stated that in the next recruitment year 2013, in order to rectify the mistake, the vacancy was advertised for S.T. category following the provisions of ORV Act and Rules by carrying forward the S.T. vacancy to 2013 because as per the roster point the vacancy for S.T. category was to be filled up in 2012. Be it stated that the advertisement in 2013 being made observing the Rules, 2008 read with the ORV Act and Rules, the advertisement vide Annexure-5 was legal and proper. SUBMISSIONS 7. Mr. Khuntia, learned counsel for the petitioner submits that the advertisement for filling up of the single post under unreserved category being made by the opposite parties is clear violation of the Recruitment Rules, 2008 and ORV Act and Rules. He further submits that without waiting for one year to be lapsed from the date of first appointment, the advertisement for filling up of the single post under S.T. category during 2013 is a gross violation of Rules, 2008. It is contended that in view of the clear admission by the opposite parties that the 2102 advertisement was made in violation of the ORV Act and Rules to fill up the post of Salaried Amin during 2012 and in order to correct the mistake again another advertisement was made within one year in 2013, is clear indication of invalid and incorrect advertisement made in the year 2013 to fill up the single vacancy from the S.T. category. According to him, had there been the roster point being followed in the subsequent year to fill up the post of un-reserved category which falls due to retirement of Shri Salil Kumar Dash on 18.2.2013, the petitioner could have applied for the post being the member of the un-reserved category. Since the advertisement made vide Annexure-5 is violative of the Rules, 2008 and the ORV Act and Rules, the same is liable to be quashed and the petitioner should be appointed as he was selected in 2012 for the post of Salaried Amin. 8. Mr. Tripathy, learned Additional Government Advocate submits that as per 80 point model roster, the vacancy advertised in 2012 was to be filled up by the S.T. candidate, but due to inadvertence and misconception, the advertisement was made in 2012 to fill up the post of Salaried Amin under the unreserved category, the reserved vacancy was carried forward to the next year and rightly advertised in 2013 to fill up the same from the S.T. category. He also submits that the irregularity made in the year 2012 has been rectified in 2013 but at any rate the petitioner having been placed at Sl. No.2 in the select list of 2012 and there being no vacancy for unreserved category, the petitioner has no right to challenge the advertisement made in 2013. In this regard, Section 7 of the Orissa Reservation of Vacancies in Post and Services (for Scheduled Castes and Scheduled Tribes) Act, 1975 is extracted below:- “7. If, in any recruitment year, the number of candidates either from Scheduled Castes or Scheduled Tribes is less than the number of vacancies reserved for them even after exchange of reservation between the Scheduled Castes and Scheduled Tribes, the remaining vacancies may be filled up by general candidates after dereserving the vacancies in the prescribed manner but the vacancies so dereserved may be carried forward to subsequent three years of recruitment: Provided that in the years following the recruitment year the normal reserved vacancies together with the vacancies carried forward shall not exceed fifty per cent of the total number of vacancies of the year in which recruitment is made and the excess over fifty per cent of the reserved vacancies shall be carried forward to subsequent years of recruitment: xx xx xx xx” Mr. Tripathy, learned Additional Government Advocate further submits that the petitioner being not a candidate in pursuance of the advertisement made during the year, 2013, has no locus standi to file this case for his appointment during the year 2013. So, he submits to dismiss the writ petition. 9. POINTS FOR DETERMINATION (i) Whether the advertisement made in 2013 vide Annexure-5 is legal and proper to fill up the single post of Salaried Amin under S.T. category? DISCUSSION 10. It is the admitted fact that on 11.5.2012, an advertisement was made by the District Judge, Balasore to fill up a single vacancy under un-reserved category and the petitioner, in pursuance of the said advertisement, applied and got selected but was placed in the second position for which the first person in the merit list was appointed in that year. It is also not in dispute that on 7.5.2013 vide Annexure-5, there was an advertisement to fill up a single post of Salarid Amin from Scheduled Tribe category and the petitioner, being a member of unreserved category, did not apply for such post. 11. Considering the submissions and pleadings and after going through the register of Roster placed before us, it appears that the single vacancy that was to be filled up in 2012 was meant for reserved (S.T.) category but by mistake advertisement was made under unreserved category. Therefore, as per the stand taken by the opposite parties, the reserved vacancies could not have been left unfilled and the mistake perpetuated, and that as soon as the next vacancy occurred, though on retirement of an unreserved employee, the said vacancy was advertised for reserved (S.T.) category in order to rectify the mistake. 12. The Hon’ble Supreme Court of India, in the case of Indra Sawheny -V- Union of India; AIR 1993 SC 477 , has held that the number of vacancies to be filled up on the basis of reservation in a year including the carry forward reservation which should in no case exceeds ceiling limit of 50%. But in the case of M. Nagaraj & Others -V- Union Of India & Others; (2006) 8 SCC 212 , the Hon’ble Supreme Court has held that Article 16(4-B) lifts the 50% cap on carry-over vacancies (backlog vacancies). 13. But in the case of M. Nagaraj & Others -V- Union Of India & Others; (2006) 8 SCC 212 , the Hon’ble Supreme Court has held that Article 16(4-B) lifts the 50% cap on carry-over vacancies (backlog vacancies). 13. Relying on the decision in the case of T. Devadasan -V- Union of India, AIR 1964 SC 179 , the Hon’ble Supreme Court in the case of Arati Ray Choudhury -V- Union of India & others; AIR 1974 SC 532 have observed as under: “xx xx xx xx and that is directly relevant for our purpose, if there be only one vacancy to be filled in a given year of recruitment, it has to be treated as unreserved irrespective of whether it occurs in the model roster at a reserved point. The appointment then is not open to the charge that the reservation exceeds 50% for, if the very first vacancy in the first year of recruitment is in practice treated as reserved vacancy, the system may be open to the objection that the reservation not only exceeds 50% but is in fact cent per cent. But, if "on this account", that is to say, if on account of the requirement that the first vacancy must in practice be treated as unreserved even if it occurs in the model roster at a reserved point, "a reserved point is treated as unreserved” the reservation can be carried forward to not more than two subsequent years of recruitment. xx xx xx xx” 14. The Hon’ble Supreme Court, in the case of Malkhan Singh -V- Union of India and others; (1997) 2 SCC 39, following the decisions in the aforesaid cases, have observed that where only one vacancy occurs in the initial recruitment year and the corresponding roster point happens to be for a Scheduled Caste or Scheduled Tribe, it should be treated as unreserved and filled up accordingly and the reservation should be carried forward to subsequent three recruitment years. 15. In the aforesaid cases, a single vacancy arose at roster point which has been reserved for a reserved category candidate but it was filled up by an unreserved category candidate and subsequently it was carried forward to next two years. 15. In the aforesaid cases, a single vacancy arose at roster point which has been reserved for a reserved category candidate but it was filled up by an unreserved category candidate and subsequently it was carried forward to next two years. Similarly, the footnote of the Orissa Reservation of Vacancies in Posts and Services (for Scheduled Castes and Scheduled Tribes) Rules, 1976 speaks in the following manner:- “NOTE-If there are only two vacancies to be filled in a particular year, not more than one may be treated as reserved. If there be only one vacancy, in a particular year which falls on a reserved point in the roaster, it will be treated as unreserved in the first instance and filled accordingly but the reservation shall be carried forward to subsequent years. In the subsequent years the reservation shall be applied by treating the vacancy arising in that year as reserved even though there might by only a single vacancy in that subsequent years.” Thus, the aforesaid provision is on the line of the Constitution Bench judgment of the Hon’ble Apex Court in Arati Ray Choudhury (Supra). 16. Relying upon the aforesaid decisions and provisions of law, we are of the view that in the instant case, when the single post advertised during the year 2012 was actually meant for the Scheduled Tribe, but the same was filled up by unreserved category, such reserved category was carried forward to next three years. Since there is single vacancy again in 2013, such reservation vacancy being carried forward from previous year, is advertized to fill up the same in the year 2013 even if as per roster point, vacancy was to be filled up by unreserved category. In no case, a post of reserved category can be compromised, but at least it can be carried forward to the next year to be filled up keeping in view the jurisprudence of the reservation. The rule of reservation being constitutionally tested and valid has to be always kept in view so as to observe the Constitutional Mandate as postulated by the Constitution. 17. In view of the aforesaid analysis, we are of the view that the post having been carried forward to 2013 under reserved vacancy, cannot be said to be faulted with even if the opposite parties submit that the advertisement in 2012 was made inadvertently. 17. In view of the aforesaid analysis, we are of the view that the post having been carried forward to 2013 under reserved vacancy, cannot be said to be faulted with even if the opposite parties submit that the advertisement in 2012 was made inadvertently. On the other hand, the advertisement made in 2013 to fill up a single post of S.T. for Salaried Amin is correct, valid and proper. The issue is answered accordingly. CONCLUSION 18. Bereft of the above discussion, there is another submission of the learned counsel for the petitioner to the effect that as per the Orissa District and Sub-ordinate Courts’ Non-Judicial Staff Services (Method of Recruitment and Conditions of Service) Rules, 2008, the previous year vacancy has to be valid for one year after which the next year vacancy would be advertized. In the instant case, the single vacancy advertised to be filled up during 2012 and has been filled up by a candidate at Serial No.1 of the select list. The petitioner, being at Serial No.2, has no locus standi to challenge the same. Similarly, when the advertisement of 2012 is found not illegal and the petitioner is not a successful candidate to be issued with letter of appointment, the challenge by him to the second advertisement in 2013 for reserved category post is untenable. On the other hand, the petitioner claims that the second advertisement is illegal because he was deprived of from making application for the post which was advertized for the reserved category. We have already observed in the above paragraphs that the carry forward of single reserved vacancy to the next year and make advertisement of the same is valid and legal for which the submission of the learned counsel for the petitioner that the petitioner is deprived of from making application in 2013 is indefensible. The writ petition being devoid of merit stands dismissed.