ORDER : 1. Heard learned counsels for the petitioner and the respondents finally at this stage and therefore, the case is being finally decided. 2. Counsel for the petitioner has submitted that the he was from OBC category and had applied for the post of Junior Engineer (Degree Holder) under the advertisement dated 18.5.2012. The total number of Posts 454, were advertised. The select list was provisionally prepared and the petitioner was called for document verification vide letter dated 30.8.2013 and thereafter he was informed that while he was provisionally selected, he may fill attestation form for police verification and medical fitness. Letters dated 30.8.2013 and 3.12.2013 were issued for the said purpose and name of the petitioner stood at Serial No. 24 in OBC male category as per the list received under RTI by the petitioner. 3. Learned counsel submits that while there were 454 posts which were advertised by the respondents and only 360 candidates were appointed leaving 94 seats unfilled, resulting the petitioner not being given appointment. The appointment order was issued on 3.12.2012. A notice was sent and thereafter the present writ petition was filed with a prayer that remaining post ought to be filled as per merit and the petitioner’s candidature be considered for appointment on the post of Junior Engineer (Degree Holder) in terms of the advertisement dated 18.5.2012. 4. Reply has been filed wherein it has been stated that the advertisement was issued for filling up newly created 568 posts of Junior Engineer (Civil). The provisional seniority list of 454 of Junior Engineers (Civil Degree Holder) was prepared on the basis of marks obtained in the examination and the documents were got verified and the provisionally selected candidates were medically examined. The final selection list of 360 eligible Junior Engineers was issued on 11.3.2013 and 85 eligible Junior Engineer (Diploma Holder) were issued wherein the name of the petitioner did not find place in the provisional selection list issued on the basis of marks obtained in the written examination. As the eligible candidates were not available out of 454 candidates, therefore, for remaining 94 posts of Junior Engineers (Civil) Degree Holders were called on the basis of marks obtained in the lower order of merit. As the eligible candidates were not available out of 454 candidates, therefore, for remaining 94 posts of Junior Engineers (Civil) Degree Holders were called on the basis of marks obtained in the lower order of merit. The Administrative Department had granted the permission for selection of 94 Junior Engineers in the lower order of merit and other similar situated persons were called for submitting educational qualification. The petitioner was also directed to submit attestation form so that the medical examination and attestation of documents may be done but his final selection was not made. It was mentioned that it is purely provisional. 5. Learned counsel for the respondents have submitted that the State Government in Public Works Department vide letter dated 24.7.2013 granted permission for creation of 331 posts to Junior Engineer Civil (Degree/Diploma) and thereafter for recruitment of 265 posts to Junior Engineer Civil and 66 posts to Junior Engineer (Diploma) Advertisement No. 1/2013 dated 5.9.2013 was issued and written examination was conducted and the Department has started selection for newly created 331 posts of Junior Engineers (Civil) Degree and Diploma. The Board has issued a fresh advertisement no. 1/2013 and the whole process of the selection of candidates from the reserved list to earlier recruitment advertisement deemed to have lapsed as per circular dated 19.7.2001. It has relied upon for the said purpose. It is further submitted that though the process of attestation of selected candidates, Medical Examination and Police verification towards rest of the vacancies out of 454 posts, was pending but in the meanwhile, High Level Committee under the Chairmanship of Hon’ble Minister for Public Works Department was held on 22.9.2014 and following decision was taken vide letter dated 8.1.2015:- “The matter regarding revival of cadre/recruitment of Junior Engineer in PWD was discussed at length, it was pointed out that this was against the basis and spirit of the 2007 decision and agreement and not in the interest of the Department. It was therefore decided that further recruitment on the post of Junior Engineer (Civil) is not required in the department as such the amendment in service rules made vide Notification No. F.1 (16) DOPA/11 dated 21.12.2011 is to be withdrawn. Accordingly, the Department shall propose the required amendment in the concerned service rules and job chart of Junior/Assistant Engineers.” 6. It was therefore decided that further recruitment on the post of Junior Engineer (Civil) is not required in the department as such the amendment in service rules made vide Notification No. F.1 (16) DOPA/11 dated 21.12.2011 is to be withdrawn. Accordingly, the Department shall propose the required amendment in the concerned service rules and job chart of Junior/Assistant Engineers.” 6. Learned Additional Advocate General appearing for the State thus submitted that the State Government was not bound to fill up the post. Learned counsel for the petitioner on the other hand submits that the aforesaid decision was never implemented it is submitted there was no occasion not to fill up the remaining posts and if a decision was taken not to fill the post of Junior Engineer (Civil), there was no occasion to issue fresh advertisement in 2013 to fill up 331 post. It is further submitted that the number of posts which were advertised and remained unfilled have not been added in the new advertisement. 7. Learned counsel for the petitioner relies on the judgment in the case of Dinesh Kumar Kashyap and Others vs. South East Central Railway and Others, (2019) 12 SCC 798 in support of his submission. 8. Per contra, learned counsel appearing for the State submits that the right to fill up the posts is in exclusive domain of the State Government. Even if there are vacancies lying with the State, it is not necessary that the State is bound to fill up all the vacancies. It is stated that the State could take a decision not to fill up all vacancies and relies upon the judgment passed in the case of Ranjeet Singh and Others vs. State of Jharkhand and Others, 2013 (1) AJR 258 in support of his submission. He also relies on the judgment in the case of Shankarsan Dash vs. Union of India, 1991 (3) SCC 47 . 9. I have considered the submissions. 10. In Shankarsan Dash vs. Union of India, (supra) the Constitution Bench was examining the issue as to whether the candidate whose name appears in the merit list on the basis of competitive examination acquires indefeasible right of appointment as a Government Servant, if vacancy exists. The petitioner therein was selected in the combined civil services examination held by UPSC. 54 seats/posts for General Category and the remaining 16 reserved of SC/ST candidates. The petitioner therein was selected in the combined civil services examination held by UPSC. 54 seats/posts for General Category and the remaining 16 reserved of SC/ST candidates. The position of appellant in the merit was not high enough to be included in the IPS and he was offered appointment to the Delhi Andaman and Nicobar Police Service (hereinafter referred to as the “DANIP”) in Police Service Group B not joining, the position of the appellant improved and ultimately he was on top of the list in June 1979, 14 vacancies arose in the IPS due to selected candidates not joining the services and three vacancies in the reserved category were filled who had been earlier appointed in DANIP services, but no appointments were made to General category vacancies. The appellant by a representation, prayed that these vacancies should also be filled up. The request was turned down, the appellant filed a writ petition in Delhi High Court which was dismissed in limine and the petitioner contended before the Supreme Court that since ultimately several vacancies in General category were remained unfilled, he was entitled to be appointed and this question was framed and referred to the Larger Bench. The Supreme Court considering the facts and the law held as under: “7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court and we do not find any discordant note in the decisions in State of Haryana vs. Subhash Chander Marwaha and Others. 10. From the materials produced before us it is fully established that there has not been any arbitrariness whatsoever on the part of the respondent in filling up the vacancies in question or the other vacancies referred to by the learned Counsel for the appellant. The process of final selection had to be closed at some stage as was actually done. A decision in this regard was accordingly taken and the process for further allotment to any vacancy arising later was closed. Mr. Goswami relied upon certain appointments actually made subsequent to this stage and urged that by those dates the further vacancies in the Indian Police Service had arisen to which the appellant and the other successful candidates should have been adjusted. We do not find any merit in this contention. It is not material if in pursuance of a decision already taken before closing the process of final selection, the formal appointments were concluded later. What is relevant is to see as to when the process of final selection was closed. Mere completing the formalities cannot be of any help to the appellant. We do not consider it necessary to mention all the details in this connection available from the large number of documents which we closely examined during the hearing at considerable length and do not have any hesitation in rejecting the argument of the learned Counsel in this regard based on the factual aspect.” 11. In Ranjeet Singh and Others vs. State of Jharkhand and Others (supra) the Supreme Court was examining the issue relating to 384 vacancies advertised for the post of Sub-Inspector Police. It was contended by the petitioners that as on the date when the selection process was completed, a total of 1492 vacancies were available and therefore prayed that they should be appointed as there were huge number of vacancies available with the State. It was contended by the petitioners that as on the date when the selection process was completed, a total of 1492 vacancies were available and therefore prayed that they should be appointed as there were huge number of vacancies available with the State. Rejecting their contention, the Supreme Court observed as under: “There is several prerogative “powers” of the State, which have no corresponding “legal obligations” or “a right” vested in any person. One of them is either to fill up all the posts, which are vacant or to fill them up partly. All this depends upon the public need: administrative exigencies or looking to the availability of infrastructure or looking to the budgetary provisions. Above all even if other factors are positive, then also it is a prerogative power of the State not to fill up all the vacancies, despite there being enough infrastructure etc. This power, vested in the State, cannot be labelled as a “public duty” to fill up all the vacancies. Citizens may be capable of holding those posts; they may be more helpful to the State; their ability may be very useful to the public at large, had they been appointed on the posts of Sub Inspector, Sargent Company Commander, but, the State has all power not to appoint them and not to fill up all the vacancies, There is no legal obligation on the part of the State that whatever vacancies are falling vacant they must be filled up immediately. Article 16 of the Constitution of India never creates any right to the citizens that at one stretch or in one go all the vacancies must be filled up- It may be a strategic method of the State that if phase-wise public posts are filled up they may get better candidates because they have studied latest technology or latest knowledge had been gathered by them, otherwise all the police inspectors will be employed having no knowledge of latest technology. There may be a circumstance, which has been kept in mind by (he State that if the posts of Sub Inspector are filled up in a phase-wise manner, the new candidates who are oven fresh graduates having forensic science degrees may apply. It is not obligatory on the part of the State to disclose its mind. The thinking process is a complex phenomenon of the State. It is not obligatory on the part of the State to disclose its mind. The thinking process is a complex phenomenon of the State. High Court in its power under Article 226 of the Constitution of India can not go beyond the thinking process of the State and, therefore, it is technically known as “policy decision” which in the political science, is known as “the exclusive power of the State.” Neither the policy decision can be altered by this Court nor this Court can issue a writ of mandamus to exercise “the exclusive power of the State.” because this power is not a legal obligation at all. It has been held by the Hon'ble Supreme Court in the case of High Court of Judicature for Rajasthan vs. Veena Verma.” 12. Looking to this judgment and matching the facts of the case with the post of and candidates of those appointed for the post, it appears that non-filling up all the posts which were not advertised. There is no expectation from the respondents-State Authorities, the State Government must fill up all the said vacancy or back-log. 13. In the case of Dinesh Kumar Kashyap and Others vs. South East Central Railway and Others, (2019) 12 SCC 798 , the advertisements were issued by the Central Railway for filling up 5798 posts which were notified and applications were invited. The claim of the original writ petitioners who had filed applications before the Central Administrative Tribunal (CAT) was that as per the existing instructions, the select list was prepared with 20 % extra candidates and therefore the result of 6995 candidates was declared who were successful and they fell under the category of extra 20%. However, the SECR did not make the appointments from those 20% extra candidates though 624 posts remained unfilled in General Category itself. The appellants who fall in the 20% category of extra candidates filed applications before the CAT praying that the SECR be directed to fill in the unfilled vacancies from list of 20% candidates. This application was rejected and the writ petition filed by the appellants was also rejected. The matter travel upto to the Supreme Court. The Apex Court noticed that the candidates had been called for document verification 20% above the number of vacancies. The Supreme Court has observed as under: “5. This application was rejected and the writ petition filed by the appellants was also rejected. The matter travel upto to the Supreme Court. The Apex Court noticed that the candidates had been called for document verification 20% above the number of vacancies. The Supreme Court has observed as under: “5. The main issue which arises before us is whether the SECR could have ignored the 20% extra panel despite the letter dated 02.07.2008 without giving any cogent reason for the same. No doubt, it is true, that mere selection does not give any vested right to the selected candidate to be appointed. At the same time when a large number of posts are lying vacant and selection process has been followed then the employer must satisfy the court as to why it did not resort to and appoint the selected candidates, even if they are from the replacement panel. Just because discretion is vested in the authority, it does not mean that this discretion can be exercised arbitrarily. No doubt, it is not incumbent upon the employer to fill all the posts but it must give reasons and satisfy the court that it had some grounds for not appointing the candidates who found place in the replacement panel. In this behalf we may make reference to the judgment of this Court in R.S. Mittal vs. Union of India, (1995) Supp. 2 SCC 230, wherein it was held as follows: 10....It is no doubt correct that a person on the select panel has no vested right to be appointed to the post for which he has been selected. He has a right to be considered for appointment. But at the same time, the appointing authority cannot ignore the select panel or decline to make the appointment on its whims. When a person has been selected by the Selection Board and there is a vacancy which can be offered to him, keeping in view his merit position, then, ordinarily, there is no justification to ignore him for appointment. There has to be a justifiable reason to decline to appoint a person who is on the select panel. In the present case, there has been a mere inaction on the part of the Government. No reason whatsoever, not to talk of a justifiable reason, was given as to why the appointments were not offered to the candidates expeditiously and in accordance with law. In the present case, there has been a mere inaction on the part of the Government. No reason whatsoever, not to talk of a justifiable reason, was given as to why the appointments were not offered to the candidates expeditiously and in accordance with law. The appointment should have been offered to Mr. Murgad within a reasonable time of availability of the vacancy and thereafter to the next candidate. The Central Government's approach in this case was wholly unjustified. 6. Our country is governed by the Rule of law. Arbitrariness is an anathema to the Rule of law. When an employer invites applications for filling up a large number of posts, a large number of unemployed youth apply for the same. They spend time in filling the form and pay the application fees. Thereafter, they spend time to prepare for the examination. They spend time and money to travel to the place where written test is held. If they qualify the written test they have to again travel to appear for the interview and medical examination etc. Those who are successful and declared to be passed have a reasonable expectation that they will be appointed. No doubt, as pointed out above, this is not a vested right. However, the State must give some justifiable, non-arbitrary reason for not filling up the post. When the employer is the State it is bound to act according to Article 14 of the Constitution. It cannot without any rhyme or reason decide not to fill up the post. It must give some plausible reason for not filling up the posts. The courts would normally not question the justification but the justification must be reasonable and should not be an arbitrary, capricious or whimsical exercise of discretion vested in the State. It is in the light of these principles that we need to examine the contentions of the SECR. 7. On behalf of the SECR it has been contended that before calling for replacement candidates the CPO was to satisfy himself that the procedure for cancellation of the order of appointment of the original empanelled candidates has been strictly followed. It is urged that since this was not done the Appellants could not be appointed. This argument holds no merit. There is no indication in the pleadings that the vacancies were not to be filled up. It is urged that since this was not done the Appellants could not be appointed. This argument holds no merit. There is no indication in the pleadings that the vacancies were not to be filled up. If an official of the Respondent No. 1 fails to do his duty the Appellants cannot suffer for the same. They are not at fault.” 14. The Apex Court in the case of Dinesh Kumar Kashyap (supra) also held as under: “8. On behalf of the Respondents it was urged before us that after the selection process in question 2 more selection processes were started in 2012 and 2013. Resultantly, three recruitment cycles were running concurrently and, therefore, the vacancies were filled up in the subsequent selections. This argument deserves to be rejected since it was not even raised before the Tribunal. Furthermore, the rights of the Appellants who had appeared in the selection pursuant to the notification of 2010 could not be taken away by the selection processes started much later. They cannot be made to suffer for the delays on the part of the SECR. 9. The fact that three simultaneous selection processes were undertaken, itself proves that the Respondent No. 1 wanted to fill up all the posts and did not want any vacancies to be left unfilled. This negates the plea of the Respondent No. 1 that it was not necessary to fill up the vacant posts. 14. While allowing the appeals we issue the following directions: 14.1. The benefit of this judgment shall only be available to those Appellants who had approached the CAT. 14.2. The Appellants shall not be entitled to any back wages. 14.3. The Appellants shall, for the purpose of seniority and fixation of pay be placed immediately above the first selected candidates of the selection process which commenced in the year 2012 and, immediately below the candidates of the selection list of 2010 in order of seniority. 14.4 The Appellants shall be entitled to notional benefits from the date of such deemed appointment only for the purposes of fixation of pay and seniority.” 15. While it is true that the State is not obliged to fill up all the vacancies which may exist in the department. 14.4 The Appellants shall be entitled to notional benefits from the date of such deemed appointment only for the purposes of fixation of pay and seniority.” 15. While it is true that the State is not obliged to fill up all the vacancies which may exist in the department. However, as per law noticed above, it is apparent that the vacancies which have advertised have to be filled up from the candidates who have applied under the said advertisement. The advertisement in midway can be recalled as a whole but if part of the selection is operated and remaining candidates who have cleared the examination are not appointed, a cogent reason must come forward from the State for not filling up vacancies. It cannot be on whims and fancies. 16. As per reply, it is noticed that High Level Committee under the Chairmanship of Hon’ble Minister for Public Works Department took a decision that revival of cadre/ recruitment of Junior Engineer in PWD was not in the interest of the Department and therefore, further recruitment for the post of Junior Engineer is not required and the notification of 21.12.2011 was decided to be withdrawn. However, this decision, as given out in the reply has not materialized as this court noticed that out of 568 posts of the total in the advertisement, the candidates on 360 posts Junior Engineers (Degree Holder) were already offered and were given appointment. The petitioner was also called to submit his documents and his medical was also conducted and sanctioned was also received from the DOP to fill up the post of 94 posts, thus there was no occasion to withhold the appointment of the petitioner. 17. A similar situation as noticed in Dinesh Kumar Kashyap (supra) is found in the present case that after not filling up the remaining posts, the respondents issued another advertisement in 2013 and thereafter again in 2020 as is being stated in the second stay application. Advertisement has already been issued on 13.2.2020 for filling up 276 posts of Junior Engineers (Degree Holder). Thus, it cannot be said that the respondents do not intend to fill up the post of Junior Engineer nor it can be said that they have decided to abolish the cadre of Junior Engineer (Degree Holder). 18. Advertisement has already been issued on 13.2.2020 for filling up 276 posts of Junior Engineers (Degree Holder). Thus, it cannot be said that the respondents do not intend to fill up the post of Junior Engineer nor it can be said that they have decided to abolish the cadre of Junior Engineer (Degree Holder). 18. In view of the law laid down in Shankarsan Dash (supra), this court finds that there is no cogent reasonable reason coming forward on behalf of the respondents not to fill up the remaining posts which had been advertised under the advertisement of 2012. It is not the case of the respondents that the candidates were not available. So far as the judgment of Ranjeet Singh (supra) cited by learned Additional Advocate General is concerned, the same was on different facts, therefore, as noticed above, the question of filling up the additional vacancy available with the Department. It is a settled law that if an advertisement has been issued for a number of posts, no further vacancies can be filled under the said advertisement and the same has to limit to the number of posts which have been advertised. 19. Keeping in view the aforesaid and taking into consideration the facts as noticed above, this writ petition is allowed. The petitioner who has been placed in the provisional list and he was called to submit document verification and medical certificate. After document verification was over, he would be considered for appointment against the remaining posts under the advertisement of 2012. The relief shall have to be modified in terms of the judgment passed by the Supreme Court in Dinesh Kumar Kashyap (supra) as under: “(i) The benefit of this judgment shall only be available to those candidates who have approached this court or whose cases are pending. (ii) The petitioner would not be entitled to any backwages. (iii) The petitioner would be entitled for seniority and fixation of pay and be placed immediately below the last candidate who was offered appointment under the advertisement in the year 2012 in the order of seniority. (iv) The petitioner shall be entitled to notional benefits from the date of such appointments were made to the other candidates for the purpose of fixation of pay and seniority. However, the petitioner shall have to be undergone the probation period as laid down under the Service Rules. (iv) The petitioner shall be entitled to notional benefits from the date of such appointments were made to the other candidates for the purpose of fixation of pay and seniority. However, the petitioner shall have to be undergone the probation period as laid down under the Service Rules. The respondents are directed to comply with the judgment within a period of 3 months from today.” 20. The writ petition is accordingly allowed. 21. All pending applications also shall stand disposed of.