JUDGMENT : 1. Since both the writ petitioners are Diploma Civil Engineers and had participated in the common selection process initiated by the Tripura Public Service Commission pursuant to its Advt. No.2/2016 holding selection for various posts including the posts indicated in item Nos.4A & 4B to which the petitioners had participated and having a common grievance with the consent of the parties are being disposed of by the present order. 2. Petitioner Debabrata Biswas in WP(C) No.1377/2017 is a diploma in Civil Engineering and a member of Scheduled Caste(SC) and petitioners Tamal Debnath and Rajan Bhattacharjee in WP(C) No.348/2018 both are also diploma in Civil Engineering and members of open category(UR) and the writ petitioners had participated in the process initiated by the TPSC pursuant to Advt. No.2/2016 holding open selection for various categories of posts but the petitioners are concerned with respect to the posts indicated in item Nos.4A & 4B respectively with reference to the Departments of PWD and RD of Junior Engineer, TES Gr-V(B)(Civil) and Junior Engineer, Gr-II(Civil). The extract of the Advt. No.2/2016 of the TPSC with which we are presently concerned is referred to ad infra: “Advt.No.02/2016 DIRECT RECRUITMENT Applications are invited in prescribed Form from the eligible citizens of India for selection of candidates on the basis of Written Combined Competitive Examination for direct recruitment to the posts of (i) Junior Engineer, TES Grade- V(A) & Junior Engineer Grade-I(Group-B Gazetted) and (ii) Junior Engineer, TES Grade-V(B) & Junior Engineer- Grade-II(Group-C Non-Gazetted) in different branches under Public Works Department & Rural Development Department, Govt. of Tripura as mentioned below:- Item No. Name of Deptt. Name of Posts with Branches No. of posts with category wise breakup Scale of Pay UR ST SC Total 4A. PWD Junior Engineer, TES Gr- V(B)(Civil) 32 [(PH-Low Vision-01, Hearing Impairment-01) & (Ex. Service man-03)] 53 [(PH-Hearing Impairment-01, Locomotor-01) & (Ex. Serviceman-02)] 12 [(PH-Low Vision-01, Locomotor-01) & (Ex Serviceman-01)] 97 Rs.5,700-24,000/-, GP-Rs.4,200/-, PB-2. 4B. RD Junior Engineer, Gr-II(Civil) 10 13 08 31 05 PWD Junior Engineer, TES Gr-V(B)(Mechanical) 03 02 01 06 06 PWD Junior Engineer, TES Gr-V(B)(Electrical) 01 01 00 02 3. The post of Junior Engineer is included in the Schedule appended to the Tripura Engineering Service Rules 1987 and the process of selection is to be held in terms of Part-IV of the Rules 1987. The post of Junior Engineer is included in the Schedule appended to the Tripura Engineering Service Rules 1987 and the process of selection is to be held in terms of Part-IV of the Rules 1987. The petitioners filled their application forms and participated in the selection process, appeared in the written examination followed by interview but in the final list published by the Commission for the Public Works Department and the Rural Development Department in reference to item Nos.4A & 4B along with item Nos.5 & 6 dt.14.07.2017(Annexure-5) the name of either of the petitioner does not find place in the list of selected candidates recommended by the Commission for appointment on the posts indicated at item Nos.4A, 4B, 5 & 6 under Advt. No.2/2016. 4. One of the writ petitioner Tamal Debnath earlier approached this court by filing of WP(C) No.1053/2017 who had participated in the selection process in the open category(UR) with the grievance that the respondents be directed to de-reserve the vacancies which were reserved for ST and the Commission be directed to recommend the name of the petitioner to the State Government for appointment on the post of Junior Engineer and to be more specific for the post which has been indicated at item Nos.4A to the Advt. No.2/2016. 5. This court after hearing the parties disposed of that writ petition vide order dt.23.08.2017 with the following directions: “16. In view of this provision, this Court is persuaded to observe that the competent authority, the respondents No.1 & 2 shall take an exercise to de-reserve the post which could not be filled up for such a long time. For this purpose adequate information be gathered and processed and if it is found that there is no possibility within in a short frame of time for filling up of those posts by the reserved category candidates, they shall de-reserve those posts for maintaining efficiency of the administration. Such exercise shall be completed within a period of 4 months from the date when a copy of this judgment and order shall be submitted to the respondent No.2. 17. If till then the life of the panel of the suitable candidates as prepared by the respondents No.3 & 4 survives, the case of the petitioner may be considered for appointment, if he comes against the deserved vacancies in terms of the merit panel.” 6. 17. If till then the life of the panel of the suitable candidates as prepared by the respondents No.3 & 4 survives, the case of the petitioner may be considered for appointment, if he comes against the deserved vacancies in terms of the merit panel.” 6. Pursuant to the judgment of this court dt.23.08.2017 of which reference has been made the matter was revisited by the respondents and decision with reasons was communicated to the petitioner vide order dt.23.02.2018 holding that the names of the petitioners have not been recommended by the Commission for appointment and there is no panel of suitable candidates available for filling up the post of Junior Engineer and after appraisal of the record the authority arrived to the conclusion that it is not advisable to the vacancies reserved for ST be de-reserved and at the same time it was further opined that it will be desirable to initiate the fresh process of selection against reserved vacancies which remain unfilled under the Advt. No.2/2016 dt.13.01.2016. 7. Indisputedly, the name of either of the petitioner did not find place in the select panel and has not been recommended by the Commission for appointment which is evident from the list of selected candidates recommended by the Commission for appointment under its notification dt.14.07.2017(Annexure-5). It has also come on record that in SC category the last candidate who has been recommended by the Commission for appointment has secured 193.67 marks and the petitioner Debabrata Biswas has secured 185 marks and two candidates above him in SC category have not been recommended by the Commission for appointment and the last candidate who has been recommended by the Commission for appointment in open category(UR) has secured 260 marks and the present petitioners Tamal Debnath and Rajan Bhattacharjee have secured 250.33 and 228.67 respectively. 8. Counsel for the petitioners submits that under the Advt. 8. Counsel for the petitioners submits that under the Advt. No.2/2016 against the vacancies reserved for SC category there is a further horizontal reservation for SC Physically Handicapped and Ex-Serviceman but since no member in SC Physically Handicapped quota was available the respondents were under obligation to fill the vacancies from the available SC candidates in the order of merit and further submits that in terms of S.36 of the Persons with Disabilities(Equal Opportunities, Protection of Rights and Full Participation) Act 1955, if a suitable person with disability is not available even after being carried forward in the succeeding recruitment years or by interchange among the three categories of physically abled persons, the employer is under legal obligation to fill the vacancy by appointment of a person other than the person with disability. 9. Counsel for the petitioners further submits that the vacancies reserved for ST under the Advt. No.2/2016 also could not have been filled for sufficient long time in the earlier recruitment years and on account of non availability of the members of reserved category and ST in particular, the respondents were supposed to undertake a procedure to dereserve the vacancies and fill the available vacancies from the open category(UR) and despite a direction of this court in the earlier proceedings initiated by one of the petitioner dt.23.08.2017 that has been arbitrarily turned down by the respondents under order dt.23.02.2018 and no reasonable justification has been tendered to de-reserve the vacancies reserved for ST and the further decision taken by the respondents to fill the available vacancies afresh will be an empty formality, more so when members of ST category are not available in the earlier recruitment years and when persons from open category(UR) are available who had participated in the process of selection held by the Commission in terms of Advt. No.2/2016 their legitimate right of fair consideration in seeking appointment against the available vacant posts reserved for ST category, obviously after being dereserved in accordance with the procedure prescribed by law is being jeopardized and the process adopted by the respondents to de-reserve the vacancies reserved for ST is neither in conformity with the provisions of the Tripura Scheduled Castes and Scheduled Tribes Reservation Act 1991 nor in accordance with law and needs to be interfered by this court. 10. 10. The Commission and the State have filed their separate counter affidavits and have supported the action being taken in finalizing the select list which has been recommended by the Commission for appointment pursuant to Advt. No.2/2016. 11. Counsel for the respondents jointly submits that no right is conferred to the petitioners, even the candidates whose names are included in the select list recommended by the Commission does not confer right as envisaged u/R.11 of the Rules 1987. In the instant case, the name of the petitioner neither finds place in the select list nor recommended by the Commission for appointment in the given circumstances there is no indefeasible right vested with the petitioner in seeking appointment has been infringed which may call for interference. 12. Counsel for the respondents further submits that there appears no reason to fill the vacancies which are earmarked to be filled by physically challenged persons, at the same time there is no reason to de-reserve the vacancies reserved for ST and reasons have been assigned while rejecting the claim of the petitioner under order dt.23.02.2018 and there is no error being committed in the decision making process adopted by the respondents and their action being in accordance with law needs no interference by this court. 13. I have heard the counsel for the parties and with their assistance perused the material available on record. 14. It is indisputed that the petitioners are diploma civil engineers and had participated in the process initiated by the Commission pursuant to Advt. No.2/2016 in reference to posts which are identified at item Nos.4A & 4B respectively and the petitioners appeared in the written examination followed by interview and either of them was not found suitable and their names have not been recommended by the Commission to the State Government for appointment in either of the respective categories as evident from the notification issued by the Commission dt.14.07.2017(Annexure-5) and the fact to be noticed that the last candidate who has been recommended by the Commission for appointment in UR category has secured 260 marks and in SC category 193.67 marks which is also evident from the select list of the candidates recommended by the Commission for appointment dt.14.07.2017 and there are candidates who have secured higher marks than the petitioners still not recommend for appointment. 15. 15. The post of Junior Engineer with which we are presently concerned is included in the schedule appended to the Tripura Engineering Service Rules 1987 and it is to be filled by direct recruitment as per the procedure prescribed under Part-IV and in terms of the procedure prescribed, after holding competitive examination followed by interview the Commission recommended the list of the selected candidates found suitable in the order of merit to the State Government for appointment with due regard to the maintenance of efficiency in administration with a proviso that mere inclusion of the name of the candidate in the select list referred to in R.10 confers no right to appointment. I consider it appropriate to quote R.10 & 11 of the Rules 1987 which reads ad infra: “10. The Commission shall forward to the Government a list arranged in order of merit of the candidates who have qualified by such standard as the Commission may determine and of the candidates belonging to the Scheduled Castes and Scheduled Tribes, who though not qualified by that standard, are declared by the Commission to be suitable for appointment to the Service with due regard to the maintenance of efficiency in administration. 11. Inclusion in the list not to confer right to appointment. The inclusion of a candidate’s name in the list referred to in rule-10 above confers no right to appointment unless the Government is satisfied, after such inquiry as it may consider necessary, that the candidate is suitable in all respects for appointment to the Service and an actual offer of appointment is made.” 16. The inclusion of a candidate’s name in the list referred to in rule-10 above confers no right to appointment unless the Government is satisfied, after such inquiry as it may consider necessary, that the candidate is suitable in all respects for appointment to the Service and an actual offer of appointment is made.” 16. No indefeasible right of the petitioner has been infringed in the given circumstances when their names have not recommended by the Commission for appointment, more so even those who have been recommended confers no right in seeking appointment as envisaged u/R.11 of the Rules 1987, obviously at least the present petitioners could not claim a better right qua those who have secured higher marks and still not recommended by the Commission for appointment u/R.10 of the Rules 1987 and taking note of the fact that the last candidates who secured 260 marks in UR category and 193.67 marks in SC category have been recommended by the Commission for appointment and there are a good number of candidates above the petitioners in the respective category still left too and what being prayed for by the petitioners is accepted at least those who have secured higher marks than the petitioners in the competitive examination/selection process have a better claim and their right of fair consideration could not be defeated merely for the reason that they have not approached this court in availing the inherent jurisdiction of this court u/Art.226 of the Constitution of India. 17. The Apex Court in the judgment reported in (2008) 2 SCC(L&S) 489, Aryavrat Gramin Bank vs. Vijay Shankar Shulka taking note of the earlier judgment in Shankarsan Dash vs. Union of India reported in (1991) 3 SCC 47 , observed that mere selection does not confer legal right in seeking appointment unless the incumbent approaches the court is able to establish that the decision making process adopted by the authorities is either arbitrary or violative u/Art.14 of the Constitution. I consider it appropriate to quote para 20 of the judgment which reads ad infra: “20. It is now a trite law that only because a person has been selected and his name finds place in the select list, the same by itself does not confer any legal right on him to be appointed. I consider it appropriate to quote para 20 of the judgment which reads ad infra: “20. It is now a trite law that only because a person has been selected and his name finds place in the select list, the same by itself does not confer any legal right on him to be appointed. It is also trite that ordinarily a Superior Court in exercise of its power of judicial review would not interfere with the right to make appointment by an employer unless its action or in-action is found to be wholly arbitrary so as to offend Article 14 of the Constitution of India.” 18. In the given facts and circumstances, this court is of the considered view that no indefeasible right has been conferred with petitioners in seeking appointment as prayed for in their respective petitions and this court finds no error in the decision making process adopted by the respondents which may call for interference u/Art.226 of the Constitution of India. 19. The submission of the petitioners counsel that the vacancy which was reserved for ST physically challenged person since remained unfilled in earlier recruitment years has to be filled by the person other the person with disability in terms of S.36 of the Act 1995 is of no substance for the reason that S.33 mandates the appropriate Government to reserve the vacancies for the persons suffering from blindness or low vision, hearing impairment, locomotor disability or cerebral palsy and the procedure to be followed by the appropriate Government in respect of the vacancies not filled up to be carried forward in terms of S.36 of the Act 1955 and the inference drawn by the petitioners that if a person with disability is not available to be filled from the macro category of SC as being prayed for is wholly misplaced and that apart the candidates in SC category who have secured higher marks than the petitioners are available who too have not been found suitable to be recommended by the Commission for appointment in the given circumstance at least the petitioners cannot have a better claim merely for the reason that they have approached this court in filing writ petition and what being prayed for deserves outright rejection. 20. 20. The further submission of the petitioners that the vacancy reserved for ST has to be de-reserved for the reason that in the preceding recruitment years members of ST are not available and is to be filled by the members from open category(UR) is of no substance for the reason that this court while disposing of the earlier writ petition directed the respondents to consider for de-reservation after holding a procedure prescribed under the Act of 1991 and to consider the cases according to order of merit and the respondent has considered the grievance and passed detailed order dt.23.02.2018 assigning reasons for which de-reservation is not permissible in the given circumstances and more so when the name of the petitioner does find place in the panel of the selected candidates recommended for appointment there appears no justification to consider the claim of the petitioner for appointment and when the fact has come on record that the last candidate who has been recommended by the Commission in open category(UR) for appointment has secured 260 marks and the petitioners have secured 250.33 and 228.67 marks, a large number of candidates who have secured higher marks than the petitioners still did not find place in the select list, at least the petitioners cannot have a better claim qua them and mere approaching to this court in filing of writ petition will not confer right of appointment overruling the contemporary order of merit qua who secured higher marks and that has been considered by the respondents while disposing of the representation under order dt.23.02.2018 and I find no error in the decision making process adopted by the respondents which may call for interference. 21. There is yet another reason that non-suit the claim of the petitioners that at the time of issuance of the Advt. No.2/2016 vacancies have been clearly earmarked to be filled by ST category and good number of candidates looking to the limited number of vacancies under the open category might not have considered appropriate to participate in the selection process and what being contended by the petitioners regarding de-reservation of the vacancies reserved for ST category even if taken on the face value at least appointment from open category could not have been made against the vacancies which are reserved for ST category under the present Advt. No.2/2016 unless the authorities first take a decision for de-reservation of the vacancies reserved for ST and initiate a fresh selection process in accordance with the schemes of Rules 1987 and at least the petitioners have no right to claim of their consideration for appointment against the vacancies which are reserved for ST category under the present Advt. No.2/2016. 22. Consequently, either of the ground is not sustainable and deserves rejection. Both the writ petitions are without substance and accordingly dismissed. No cost.