JUDGMENT : W.P.(C)No.29090 of 2013:- Petitioners 1 and 2, who are presently working as Peons in Mukkom Service Co-operative Bank Limited, the 1st respondent herein, pursuant to the recruitment conducted in terms of Ext.P1 notification dated 12.08.2013, have filed this writ petition under Article 226 of the Constitution of India, seeking a declaration that they are entitled to continue in the post of Peon and Peon (leave vacancy) respectively in the 1st respondent Bank, in the light of Exts.P4 to P10. The further reliefs sought for are a writ of mandamus commanding the 1st respondent Bank to allow them to continue in the post of Peon and Peon (leave vacany) respectively, in the light of Exts.P4 to P10; and a writ of mandamus commanding the 2nd respondent Joint Registrar to give directions to the 1st respondent Bank to allow them to continue as Peon,in the light of Exts.P4 to P10. The reliefs sought for in this writ petition are opposed by the 1st respondent Bank by filing a counter affidavit. The petitioners have also filed a reply affidavit. 2. W.P.(C)No.20518 of 2014:-The petitioner, who is the member of Mukkom Service Co-operative Bank Limited, the 5th respondent herein, has filed this writ petition, seeking a declaration that the appointment of respondents 6 to 8 as Peon in the 5th respondent Bank from Ext.P5 rank list, in excess of the vacancies notified in Ext.P1 notification dated 12.08.2014 is arbitrary, illegal and unconstitutional. The petitioner has also sought for a writ of certiorari to quash Ext.P8 communication dated 03.07.2014 issued by the 3rd respondent Joint Registrar, whereby the objections raised by the petitioner against the appointment of respondents 6 to 8 stand rejected. The petitioner has also sought for an appropriate writ, order or direction commanding the 3rd respondent Joint Registrar to hear him afresh regarding the appointment of respondents 6 to 8 as Peon in the 5th respondent Bank and pass orders in accordance with law. The reliefs sought for in this writ petition are opposed by respondents 7 and 8, who are the petitioners in W.P.(C) No.29090 of 2013, by filing a counter affidavit. The 6th respondent, another appointee has also filed counter affidavit. The reliefs sought for in this writ petition are opposed by respondents 7 and 8, who are the petitioners in W.P.(C) No.29090 of 2013, by filing a counter affidavit. The 6th respondent, another appointee has also filed counter affidavit. A counter affidavit has been filed by the 3rd respondent Joint Registrar, wherein it has been stated that the appointment of respondents 6 to 8 as Peon in the 5th respondent Bank from Ext.P5 rank list, in excess of the vacancies notified in Ext.P1 notification, is perfectly legal. 3. Heard the learned counsel for the petitioners in W.P.(C) No.29090 of 2013, the learned counsel for the petitioner in W.P.(C) No.20518 of 2014, the learned Senior Government Pleader appearing for the official respondents, the learned counsel for the respondent Bank and also the learned counsel for the party respondents. 4. The issue that arises for consideration in W.P.(C) No.29090 of 2013 is as to whether the petitioners are legally entitled for appointment as Peon in Mukkom Service Co-operative Bank Ltd. (hereinafter referred to as 'the Society'). The issue that has to be decided in W.P.(C) No.20518 of 2014 is as to whether any interference is warranted on Ext.P8 communication dated 03.07.2014 of the 3rd respondent Joint Registrar. Parties and exhibits are referred to in this judgment as they appear in W.P.(C) No.29090 of 2013. 5. The pleadings and materials on record would show that, vide Ext.P1 notification dated 12.08.2014, the Society invited application for direct recruitment to various posts including three posts of Peon in the scale of pay of Rs.6500-15700. As per the said notification, one post of Peon is reserved for SC/ST candidates. After conducting written test and interview, Ext.P2 rank list for the post of Peon was published on 12.09.2013. In the said rank list, petitioners 1 and 2 in W.P.(C) No.29090 of 2013 are serial numbers 4 and 5. For one post of Peon reserved for SC/ST candidates, the Society published a separate rank list, which is placed on record as Ext.P6 in W.P.(C)No.20518 of 2014. 6. After appointing candidates against the notified vacancies of Peon in Ext.P1 notification, the Joint Registrar of Co-operative Societies issued Ext.P3 order dated 29.08.2013, whereby the staff pattern of the Society was approved with 5 posts of Peon. 6. After appointing candidates against the notified vacancies of Peon in Ext.P1 notification, the Joint Registrar of Co-operative Societies issued Ext.P3 order dated 29.08.2013, whereby the staff pattern of the Society was approved with 5 posts of Peon. Thereafter, by Ext.P4 communication dated 05.11.2013, the Joint Registrar directed the Society to fill up one vacancy of Peon from Ext.P2 rank list, which was followed by Ext.P5 communication dated 05.11.2013. Based on Exts.P4 and P5, the Society issued Ext.P7 order dated 14.11.2013 appointing the 1st petitioner as Peon and by Ext.P8 order dated 14.11.2013, the 2nd petitioner was appointed as Peon in a leave vacancy. They made cash deposits as evident from Exts.P9 and P10 receipts dated 15.11.2013 and Ext.P11 is the attendance particulars of petitioners 1 and 2. In Ext.P8 communication dated 03.07.2014 in W.P.(C) No.20518 of 2014, the Joint Registrar rejected Ext.P2 representation made by the petitioner in that writ petition, holding that there is no irregularity in the appointments made by the Society in excess of the notified vacancies. 7. During the course of arguments, the learned counsel for the petitioners in W.P. (C)No.29090 of 2013 (respondents 7 and 8 in W.P. (C)No.20518 of 2014) and also the learned counsel for the 6th respondent in W.P.(C)No.20518 of 2014 have no case that the vacancies notified in Ext.P1 for the post of Peon under general category was in excess of two posts. As already noticed, in Ext.P1 notification, out of three posts of Peon notified, one post was reserved for SC/ST candidates, for which a separate rank list has been published, which is placed on record as Ext.P6 in W.P.(C) No.20518 of 2014. Admittedly, the appointment of the petitioners in W.P.(C) No.29090 of 2013 (respondents 7 and 8 in W.P.(C)No.20518 of 2014) and also the 6th respondent in W.P.(C)No.20518 of 2014 to the post of Peon in the Society was made in excess of the notified vacancies. 8. Admittedly, the appointment of the petitioners in W.P.(C) No.29090 of 2013 (respondents 7 and 8 in W.P.(C)No.20518 of 2014) and also the 6th respondent in W.P.(C)No.20518 of 2014 to the post of Peon in the Society was made in excess of the notified vacancies. 8. In State of Orissa v. Rajkishore Nanda [ (2010) 6 SCC 777 ], the Apex Court held that vacancies cannot be filled up over and above the number of vacancies advertised as recruitment of candidates in excess of the notified vacancies is a denial and deprivation of the constitutional right under Article 14 read with Article 16(1) of the Constitution of those persons, who acquired eligibility for the post in question in accordance with the statutory rules subsequent to the date of notification of the vacancies. Filling up of vacancies over and above the notified vacancies amount to filling up of future vacancies and thus, not permissible in law. Paragraphs 11 to 13 of the said decision reads thus:- “11. It is a settled legal proposition that vacancies cannot be filled up over and above the number of vacancies advertised as "the recruitment of the candidates in excess of the notified vacancies is a denial and deprivation of the constitutional right under Article 14 read with Article 16(1) of the Constitution", of those persons who acquired eligibility for the post in question in accordance with the statutory rules subsequent to the date of notification of vacancies. Filling up the vacancies over the notified vacancies is neither permissible nor desirable, for the reason, that it amounts to "improper exercise of power and only in a rare and exceptional circumstance and in emergent situation, such a rule can be deviated and such a deviation is permissible only after adopting policy decision based on some rational", otherwise the exercise would be arbitrary. Filling up of vacancies over the notified vacancies amounts to filling up of future vacancies and thus, not permissible in law. (Vide State of Bihar v. Secretariat Assistant Successful Examinees Union 1986 [( 1994 1 SCC 126 ]; Prem Singh v. Haryana State Electricity Board [ (1996) 4 SCC 319 ]; Ashok Kumar v. Banking Service Recruitment Board [ (1996) 1 SCC 283 ]; Surinder Singh v. State of Punjab [ (1997) 8 SCC 488 ] and Rakhi Ray v. High Court of Delhi [ (2010) 2 SCC 637 ]. 12. 12. In State of Punjab v. Raghbir Chand Sharma [ (2002) 1 SCC 113 ], this Court examined the case where only one post was advertised and the candidate whose name appeared at Serial No.1 in the select list joined the post, but subsequently resigned. The Court rejected the contention that post can be filled up offering the appointment to the next candidate in the select list observing as under : "With the appointment of the first candidate for the only post in respect of which the consideration came to be made and select list prepared, the panel ceased to exist and has outlived its utility and at any rate, no one else in the panel can legitimately contend that he should have been offered appointment either in the vacancy arising on account of the subsequent resignation of the person appointed from the panel or any other vacancies arising subsequently." 13. In Mukul Saikia v. State of Assam [ (2009) 1 SCC 386 ], this Court dealt with a similar issue and held that "if the requisition and advertisement was only for 27 posts, the State cannot appoint more than the number of posts advertised". The Select List "got exhausted when all the 27 posts were filled". Thereafter, the candidates below the 27 appointed candidates have no right to claim appointment to any vacancy in regard to which selection was not held. The "currency of Select List had expired as soon as the number of posts advertised are filled up, therefore, the appointments beyond the number of posts advertised would amount to filling up future vacancies" and said course is impermissible in law.” 9. In Rajkishore Nanda's case (supra) the Apex Court, followed the law laid down by the Constitution Bench in Shankarasan Dash v. Union of India [ (1991) 3 SCC 47 ] that, a person whose name appears in the select list does not acquire any indefeasible right for appointment. Empanelment at the best is a condition of eligibility for the purpose of appointment and that by itself does not amount to selection or create a vested right to be appointed. The vacancies have to be filled up as per the statutory rules and in conformity with the constitutional mandate. Paragraphs 14 to 16 of the said decision reads thus:- “14. A person whose name appears in the select list does not acquire any indefeasible right of appointment. The vacancies have to be filled up as per the statutory rules and in conformity with the constitutional mandate. Paragraphs 14 to 16 of the said decision reads thus:- “14. A person whose name appears in the select list does not acquire any indefeasible right of appointment. Empanelment at the best is a condition of eligibility for purpose of appointment and by itself does not amount to selection or create a vested right to be appointed. The vacancies have to be filled up as per the statutory rules and in conformity with the constitutional mandate. 15. A Constitution Bench of this Court in Shankarsan Dash v. Union of India, [ (1991) 3 SCC 47 ], held that appearance of the name of a candidate in the select list does not give him a right of appointment. Mere inclusion of candidate's name in the select list does not confer any right to be selected, even if some of the vacancies remain unfilled. The candidate concerned cannot claim that he has been given a hostile discrimination. (See also Asha Kaul v. State of J and K [ (1993) 2 SCC 573 ]; Union of India v. S.S.Uppal [ (1996) 2 SCC 168 ]; Bihar Public Service Commission v. State of Bihar [ (1997) 3 SCC 198 ]; Simanchal Panda v. State of Orissa [ (2002) 2 SCC 669 ]; Punjab State Electricity Board v. Malkiat Singh [ (2005) 9 SCC 22 ]; Union of India v. Kali Dass Batish [ (2006) 1 SCC 779 ]; Divisional Forest Officers v. M. Ramalinga Reddy [ (2007) 9 SCC 286 ]; Subha B. Nair v. State of Kerala [ (2008) 7 SCC 210 ]; Mukul Saikia v. State of Assam [ (2009) 1 SCC 386 ] and S.S. Balu v. State of Kerala [ (2009) 2 SCC 479 ]. 16. Select list cannot be treated as a reservoir for the purpose of appointments, that vacancy can be filled up taking the names from that list as and when it is so required. It is the settled legal proposition that no relief can be granted to the candidate if he approaches the Court after expiry of the Select List. If the selection process is over, select list has expired and appointments had been made, no relief can be granted by the Court at a belated stage. It is the settled legal proposition that no relief can be granted to the candidate if he approaches the Court after expiry of the Select List. If the selection process is over, select list has expired and appointments had been made, no relief can be granted by the Court at a belated stage. (Vide J.Ashok Kumar v. State of Andhra Pradesh [ (1996) 3 SCC 320 ]; State of Bihar v. Md. Kalimuddin [ (1996) 2 SCC 7 ]; State of U.P. v. Harish Chandra [ (1996) 9 SCC 309 ]; Sushma Suri v. Government of National Capital Territory of Delhi [ (1999) 1 SCC 330 ]; State of U.P. v. Ram Swarup Saroj [ (2000) 3 SCC 699 ]; K. Thulaseedharan v. Kerala State Public Service Commission [ (2007) 6 SCC 190 ]; Deepa Keyes v. Kerala State Electricity Board [ (2007) 6 SCC 194 ] and Subha B. Nair v. State of Kerala [ (2008)7 SCC 210 ].” 10. Having considered the submissions made by the learned counsel on both sides, in the light of the law laid down in the decisions referred to supra, conclusion is irresistible that the appointment of the petitioners in W.P.(C) No.29090 of 2013, who are respondents 7 and 8 in W.P.(C) No.20518 of 2014 and also the appointment of 6th respondent in W.P.(C) No.20518 of 2014 are made in excess of the vacancies notified in Ext.P1 notification. When the number of vacancies notified in Ext.P1 under general category was only two, Ext.P2 rank list in W.P.(C)No.29090 of 2013 got exhausted on appointment of two candidates. Thereafter, the candidates lower in rank have no legal right to claim appointment to any vacancy in regard to which selection was not held. 11. In such circumstances, the petitioners in W.P.(C)No.29090 of 2013, who are respondents 7 and 8 in W.P.(C)No.20518 of 2014 and also the 6th respondent in W.P.(C)No.20518 of 2014 have no legal right to get appointment against any vacancies of Peon in the 1st respondent/5th respondent Society, which are not included in Ext.P1 notification. In the result, W.P.(C)No.29090 of 2013 fails and the same is accordingly dismissed. In the result, W.P.(C)No.29090 of 2013 fails and the same is accordingly dismissed. W.P.(C) No.20518 of 2014 is disposed of by setting aside Ext.P8 communication dated 03.07.2014 of the Joint Registrar of Co-operative Societies, by holding that the appointment made in excess of two notified vacancies of peon in Ext.P1 notification is legally unsustainable and those vacancies will have to be filled up by the 1st respondent/5th respondent Society, after issuing fresh notification.