ORDER : Precise question, which has fallen for determination in the cases at hand is that, “whether the vacancies, if any occurred in a particular year during the subsistence of the ongoing selection process pursuant to the advertisement inviting applications for filling up 06 existing vacancies and 02 anticipated vacancies of Civil Judges (Junior Division), could be filled up from amongst the candidates borne on Select List prepared on the basis of merit drawn in the ongoing selection process?” 2. Since the issue raised in all the above captioned writ petitions pertains to appointment to the posts of Civil Judges (Junior Division), in the State of Himachal Pradesh, pursuant to advertisement dated 1.2.2013, whereby Himachal Pradesh Public Service Commission invited applications from eligible candidates for filling up 08 vacancies of Civil Judges (Junior Division) in Himachal Pradesh Judicial Services and all the petitioners are aggrieved of their non-selection to the aforesaid posts, as such, these petitions were tagged and heard together and are being disposed of vide this common judgment. 3. For having bird’s eye view of the matter and for the sake of brevity, facts and annexures of CWP No. 1730 of 2014, are being discussed herein. Himachal Pradesh Public Service Commission (hereinafter, ‘Commission’) vide advertisement No. VII/2012 dated 1.2.2013 (Annexure P2) invited applications from eligible candidates for Himachal Pradesh Judicial Services against the posts of Civil Judge (Junior Division). Vide aforesaid advertisement, 08 vacancies of Civil Judges (Junior Division) came to be advertised under two categories as under: Sr. No. Vacancies Number of Posts 1. Existing number of vacancies =06 (OBC-02, SC-01, ST-02 & UR-01) 2. Anticipated vacancies for the next one year =02 (UR-02) Total =08 vacancies 4. All the petitioners pursuant to aforesaid advertisement applied for the posts and they all being eligible, were permitted to participate in the preliminary examination. Preliminary examination was held on 12.5.2013 and result thereof was declared on 15.6.2013. All the petitioners after having cleared preliminary examination, were permitted to participate in main examination held with effect from 15th to 18th July, 2013. Preliminary examination was held on 12.5.2013 and result thereof was declared on 15.6.2013. All the petitioners after having cleared preliminary examination, were permitted to participate in main examination held with effect from 15th to 18th July, 2013. Vide press note (Annexure P-3 of CWP No. 5871 of 2014), candidates with following roll numbers were declared qualified in the main examination CATEGORY : GENERAL (03 POSTS) 1003 1025 1064 1076 1093 1107 1126 1129 1175 1199 1238 1250 1299 1319 1350 1369 1400 1415 1432 1495 1520 1540 1636 1708 1723 2054 2070 2099 2131 2216 (30 Candidates) CATEGORY: SCHEDULED CASTE(01) POSTS 1113 1236 1366 1386 1418 1597 1673 1751 2006 2119 (10 Candidates) CATEGORY: SCHEDULED TRIBE (02) POSTS 1009 1057 109 1139 1144 1190 1340 1374 1477 1490 1498 1518 1526 1642 1651 1670 1715 1742 2096 2185 (20 Candidates) CATEGORY: O.B.C. (02) POSTS 1015 1143 1187 1365 1419 1431 1440 1510 1613 1700 2005 2058 2062 2075 2098 2109 2111 2138 2172 2220 (20 Candidates) 5. Since three posts were meant for general category, 09 candidates as per their merit were called for interview whereas, under SC, ST and OBC categories, since number of candidates qualifying the main examination was equal to the number of posts available, they all were called for the interview held on 7th and 8th October, 2013. Following candidates were finally selected in the aforesaid interview, as per Press note (Annexure P-5): Sr. No. Roll No. Name of the candidate Category Clear Cut Vacancies 1. 1025 Ms. Anshu Chaudhary General 2. 2006 Sh. Nishant Verma Sch. Caste 3. 1670 Ms. Pratibha Negi Sch. Tribe 4. 2185 Ms. Anita Sharma Sch. Tribe 5. 2172 Sh. Baljeet O.B.C. 6. 1431 Sh. Jitender Kumar O.B.C. Anticipated Vacancies 1. 1126 Ms. Abha Chauhan General 2. 1319 Sh. Ajay Kumar General 6. Petitioners namely Meenakshi and Parvez, who had applied under the categories of Scheduled Caste and Scheduled Tribe, though were called for interview, but they failed to qualify on account of their overall marks and Nishant Verma was appointed against one existing vacancy of Scheduled Caste and Ms. Pratibha Negi and Ms. Anita Sharma were offered appointment against two posts reserved for the Scheduled Tribes. Ashitosh Thakur (Roll No. 1415) was also called for interview against the post reserved for general category but she being lower in merit, was not offered the post. Pratibha Negi and Ms. Anita Sharma were offered appointment against two posts reserved for the Scheduled Tribes. Ashitosh Thakur (Roll No. 1415) was also called for interview against the post reserved for general category but she being lower in merit, was not offered the post. Petitioners Kuldeep Sharma and Devender Kumar, though qualified main examination but since they could not make it to the merit list of general category drawn for selection against three posts for unreserved category, they were not called for viva voce. 7. Vide press note dated 21.10.2013 (Annexure P-6, Page 26), the Commission, pursuant to orders passed by Division Bench of this court in CWP No. 3135 of 2011 titled Shweta Dhingra vs. State of Himachal Pradesh and others, CWP No. 8563 of 2010, titled Kuldeep Sharma vs. State of Himachal Pradesh and others, CWP No. 3255 of 2011 titled Niranjan Singh versus State of Himachal Pradesh and others, undertook the joint exercise to prepare the Select List and placed following persons therein on the basis of their performance in the Himachal Pradesh Judicial Services Examination 2013 (hereinafter, ‘Examination’): Sr. No. Roll No. Name 1. 2099 Ms. Akanksha Dogra 2. 129 Sh. Vivek Kaisth 3. 1386 Ms. Meenakshi 4. 1139 Sh. Parvez 8. Subsequently, respondent No.1 on the basis of information supplied by respondent No.3 vide letter No. HHC-GAZ/14-49/74-VI-30112, dated 30.10.2013 (Annexure P-10), addressed to the Additional Chief Secretary (Home) to the Government of Himachal Pradesh, wherein it was informed that “..It is also informed that Roster Point No. 55, 56 and 11 were not included in the requisition of the posts to be notified during 2013 by the Registry as that post has fallen vacant on 18.4.2013 due to creation of two new posts of Civil Judge (Junior Division) at Solan and Amb and one post due to discharge from service of Shri Sunish Aggarwal, Civil Judges (Junior Division)-cum-JMIC, Anni, on 19.9.2013”, requested the Commission to recommend three candidates against Roster Points No. 55, 56 and 11 from unreserved category (Annexure P-11, page 67). In response to aforesaid communication sent by respondent No.1, the Commission vide letter No. 3- 50/2012-PSC(E-I) dated 17.12.2013 (Annexure R-4 of reply filed by respondent No.1, page 159) recommended two candidates of general category from the Select List to be appointed as Civil Judges (Junior Division) against unreserved category. In response to aforesaid communication sent by respondent No.1, the Commission vide letter No. 3- 50/2012-PSC(E-I) dated 17.12.2013 (Annexure R-4 of reply filed by respondent No.1, page 159) recommended two candidates of general category from the Select List to be appointed as Civil Judges (Junior Division) against unreserved category. Though, vide aforesaid communication, respondent No.1 had requested the Commission to recommend three names from unreserved category, but since only two persons from the category of general unreserved were available in the Select List, names of Vivek Kaisth and Akanksha Dogra, respondents Nos. 4 and 6 came to be recommended by the Commission. 9. Pursuant to aforesaid recommendation made by the Commission, respondent No. 1 offered appointment to abovesaid two persons vide Notification No. Home-B (B) 6-4/2006-VI-99 dated 27.12.2013, (Annexure P, page 45). In January, 2014, Vivek Kaisth and Akanksha Dogra joined as Civil Judge (Junior Division). 10. Record reveals that after the selection of the aforesaid two persons, petitioners namely Meenakshi and Parvez filed representations to the Principal Secretary (Home) to the Government of Himachal Pradesh, stating therein that one vacancy of Civil Judge (Junior Division) is lying vacant and some vacancies are likely to fall vacant in near future and they being in the Select List prepared strictly on merit-communal rotation basis are also entitled to be appointed as Civil Judges (Junior Division) against the anticipated vacancies. In the representation, petitioners named herein above, alleged that for unknown reasons their names were not recommended in Select List alongwith roll Nos. 2099 and 1299 (respondents Nos. 4 and 6). Besides above, both the above named petitioners claimed that since selected candidates namely Nishant Verma (SC) and Ms. Pratibha Negi (ST) have secured more marks than the persons selected in general category, they need to be offered posts under general category and posts vacated by aforesaid persons are required to be offered to them. 11. Since no heed was paid to aforesaid request made by the petitioners named herein above, they alongwith other petitioners namely Kuldeep Sharma and Devender Kumar, who after having come to know about the factum with regard to appointment of respondents Nos. 11. Since no heed was paid to aforesaid request made by the petitioners named herein above, they alongwith other petitioners namely Kuldeep Sharma and Devender Kumar, who after having come to know about the factum with regard to appointment of respondents Nos. 4 and 6 (as arrayed in CWP No. 1730 of 2014), obtained detailed marks cards of all the selected candidates, wherein it transpired to them that though they were in the merit list, pursuant to their performance in the main examination but since only first 9 persons were to be called for interview against 03 posts meant for general category they were not called for the interview held on 7th and 8th February, 2013, approached this court, in the instant proceedings, praying therein for quashment of selection of respondents Nos. 4 and 6 or, in the alternative, to offer them appointment against the posts in question. Precisely, the grouse of the petitioners namely Kuldeep Sharma and Devender Kumar is that since subsequently on the basis of communication dated 30.10.2013, (Annexure P-10), respondent-State made a request to the Commission to sponsor three candidates against Roster Points Nos. 55, 56, 11 from unreserved category, the Commission could not have straightway offered appointment to respondents Nos. 4 and 6 being in the Select List, because such list stood exhausted on account of appointment of eight candidates namely Ms. Anshu Chaudhary, Ms. Abha Chauhan, Shri Ajay Kumar (General unreserved) Nishant Verma,(Scheduled Caste), Ms. Pratibha Negi and Ms. Anita Sharma (Scheduled Tribe) and, Baljeet and Jitender Kumar (OBC). As per petitioners named herein above, since the posts against which respondents Nos. 4 and 6 came to be offered appointment were never advertised vide advertisement dated 1.2.2013 (annexure P-2), whereby 08 posts in total (existing vacancies -06 (OBC 2, SC 1, ST 2, Unreserved 1) and 02 unreserved (anticipated vacancies for the next one year) were advertised, same could not be filled up from amongst the candidates placed in the Select List. The case of the aforesaid petitioners is that had the three vacancies against which respondents Nos. 4 and 6 were offered appointment, been included in advertisement dated 1.2.2013, they would have been also called for interview/viva voce and, on the basis of their performance in the viva voce, they could have made it to the Select List. 12. Respondents Nos. The case of the aforesaid petitioners is that had the three vacancies against which respondents Nos. 4 and 6 were offered appointment, been included in advertisement dated 1.2.2013, they would have been also called for interview/viva voce and, on the basis of their performance in the viva voce, they could have made it to the Select List. 12. Respondents Nos. 1 to 3, in their replies have admitted factum with regard to issuance of advertisement dated 1.2.2013 (Annexure P-2), inviting applications from eligible candidates for the Examination against 06 existing and 02 anticipated vacancies. Respondent No.1 has stated in its reply that it being State Government only placed requisition with the Commission for issuance of advertisement as per roster/vacancy position maintained by High Court of Himachal Pradesh. Besides this. respondent No.1 has stated in its reply that pursuant to judgment dated 3.9.2011 passed by Division Bench in Shweta Dhingra (supra), High Court and the Commission jointly took up exercise of preparation of Select List immediately after publication of the merit list, wherein it was reflected that keeping in view the directions of High Court, on judicial side, to prepare Select List by including 2/3rd of actual and anticipated vacancies, Vivek Kaisth and Akanksha Dogra (Roll Nos. 1299 and 2099) (general category) Ms. Meenakshi (SC) and Parvez (Roll No. 1399) (ST) can be kept in the Select List, as no other candidates qualified the Examination. It has been further averred by respondent No.1 that the High Court, pursuant to letter No. Home B(B)6-4/2006-VI-6-74 dated 19.2.2011, informed vide communication dated 13.10.2011 (Annexure P-10) that Roster Points Nos. 55, 56 and 11 (unreserved) were not included in requisition of posts to be notified in 2013 as two vacancies became available on 18.4.2013 on account of creation of two posts of Civil Judges (Junior Division) at Solan and Amb and one post due to discharge from service of Suneesh Aggarwal, Civil Judge (Junior Division) Ani on 19.9.2013. Respondent No. 1 further stated that pursuant to information received from High Court, it requested the respondent Commission to sponsor three more candidates against Roster Points Nos. 55, 56 and 11 under unreserved category. Since only two persons of unreserved category were available in the Select List, the Commission vide letter No. 50/50/2012- PSC(E-1) dated 17-12-2013 (Annexure R-4) recommended respondents Nos. 4 and 6 for appointment as Civil Judges (Junior Division). 55, 56 and 11 under unreserved category. Since only two persons of unreserved category were available in the Select List, the Commission vide letter No. 50/50/2012- PSC(E-1) dated 17-12-2013 (Annexure R-4) recommended respondents Nos. 4 and 6 for appointment as Civil Judges (Junior Division). The respondent Commission has simply stated in its reply that though earlier, pursuant to requisition received from the Government, it had invited applications from eligible candidates for 06 existing and 02 anticipated vacancies of Civil Judges (Junior Division) vide advertisement dated 1.2.2013 (Annexure P-2), but since after declaration of result, respondent State asked it to sponsor three more candidates from the Select List against Roster Points Nos. 55, 56 and 11 under unreserved category, it recommended two candidates viz. Vivek Kaisth and Akanksha Dogra for appointment as Civil Judges (Junior Division). High Court in its reply has stated that as per Himachal Pradesh Judicial Service Rules (hereinafter, ‘Rules’), on 11.1.2013, it sent vacancy position to the Government for filling up 06 existing vacancies i.e. OBC-2, SC-1, ST-2 and General Unreserved-2 and Unreserved-02 anticipated vacancies to the respondent-State with the request to initiate the selection process for filing up posts in 2013 as per rules and time schedule prescribed thereunder. While fairly admitting the factum with regard to preparation of Select List in terms of directions contained in judgment rendered by Division Bench in Shweta Dhingra (supra), the High Court averred in its reply that it sent the actual existing vacancy position in the cadre of Civil Judges (Junior Division) as per information sought by respondent No.1. As per respondent No.3, though respondent No.1 was informed that Roster Point Nos. 55, 56 and 11 were not included in the requisition for the posts to be notified in 2013, as these posts fell vacant on account of creation of two posts on 18.4.2013 and due to discharge from service of one Civil Judge on 19.9.2013, but respondent No.1, without seeking further clarification from the High Court issued Notification dated 27.12.2013 (Annexure P-7) appointing Vivek Kaisth and Akanksha Dogra as Civil Judges (Junior Division). 13. Respondent Nos. 13. Respondent Nos. 4 and 6, Vivek Kaisth and Akanksha Dogra also filed replies to the petition, wherein they claimed that they fared well in selection process and they have not procured appointment to the post by way of fraud or fraudulent means and, in case the relief as prayed for is granted in favour of the petitioners, their services would be dispensed with, which besides causing great prejudice to them, would be stigmatic in their social life. Above named respondents claimed that they have been rightly appointed against Roster Points Nos. 31, 32, 55, 56 and 11. 14. Having taken note of the contradictory stands taken by the respondents, this court on 24.9.2015, directed respondent No.1 to clarify that at whose instance, it recommended names of candidates namely Vivek Kaisth and Akanksha Dogra under unreserved category for appointment as Civil Judges (Junior Division) in the wake of specific stand taken by High Court vide communication dated 30.10.2013, that it had only responded to letter dated 19.10.2013 of Home Department and had never recommended for consideration, much less for appointment to the posts of Civil Judges (Junior Division). Pursuant to aforesaid directions contained in order dated 24.9.2015, Joint Secretary (Home) to the Government of Himachal Pradesh filed his personal affidavit, wherein he stated as under: “2. That the respondent No.1 i.e. State of Himachal Pradesh has no role to play in the matter of selection of the candidates to the post of Civil Judge (Jr. Divn.). However, it is further submitted that the respondent No.1 only offers appointment to such selected candidates as per the recommendations made by the respondent No.2 i.e. Public Service Commission. 3. That after completion of selection process the Himachal Pradesh Public Service Commission vide its letter dated 11.10.2013 forwarded its recommendation for appointment as Civil Judge (Jr. Division) six candidates against clear-cut vacancies and two candidates against anticipated vacancies (Annexure-R-I) 4. That in pursuance to the Judgment dated 03.09.2014 passed by the Hon'ble High Court in CWP No. 3135/20111 titled as Shweta Dhingra Vs. State of HP & others, a meeting was held on 21.10.2013 at Himachal Pradesh Public Service Commission for preparing the Select List of HP Judicial Services examination, 2013. In the said meeting, it was decided to include the names of Ms. Akanksha Dogra and Sh. Vivek Kaisth of General Category, Ms. Meenakshi (SC category) and Sh. State of HP & others, a meeting was held on 21.10.2013 at Himachal Pradesh Public Service Commission for preparing the Select List of HP Judicial Services examination, 2013. In the said meeting, it was decided to include the names of Ms. Akanksha Dogra and Sh. Vivek Kaisth of General Category, Ms. Meenakshi (SC category) and Sh. Parvez (ST category) in the Select List. No candidate from OBC category had qualified the HPJS examination, 2013. A copy of the minute of the meeting is annexed as Annexure –R—II. 5. That before offering the appointment it was necessary to obtain the correct number of vacancies now available and accordingly Hon'ble High Court, on the administrative side, was requested to send category wise detail of all existing vacancies in the cadre of Civil Judge (Jr. Division). 6. That the Registrar General, High Court of Himachal Pradesh intimated vide letter No. HHC/GAZ/14-49/74-VI-30112 dated 30.10.2013 (Annexure-R-III) INTIMATED THAT Roster Point No. 55, 56 and 11 (Unreserved) were not included in the requisition of the posts to be notified during 2013 as two vacancies have become available on 18-04-2013 due to creation of two new post of Civil Judge (Jr. Division) at Solan and Amb and one post due to discharge from service of Sh. Sunish Aggarwal, Civil Judge (Jr. Division) Anni on 19-9-2013. In view of this respondent No.1 requested the Secretary, HP Public Service Commission to sponsor three more candidates from the Select List against Roster Point 55, 56 and 1 from the unreserved category. 7. That the HP Public Service Commission vide letter No. 3- 50/2012-PSC(E-1) dated 17-12-2013 (Annexure-R-IV) informed that only two candidates of General Category are available as per Select List prepared by the Committee and recommended following two candidates belonging to un-reserved category for appointment as Civil Judge (Junior Division):- Sr. No. Roll No. Name of the candidate 1. 2099 Ms. Akanksha Dogra D/o sh. Lekh Raj Dogra 2. 1299 Sh. Vivek Kaisth S/o Sh. T.S. Kaisth In pursuance to the recommendations of the H.P. Public Service Commission, the respondent No.1 offered appointment the above two candidates for the post of Civil Judge (Jr. Division) vide Notification No. Home-B(B)6-4/2006-VI-99 dated 27th December, 2013 (Annexure-R-V)” 15. 2099 Ms. Akanksha Dogra D/o sh. Lekh Raj Dogra 2. 1299 Sh. Vivek Kaisth S/o Sh. T.S. Kaisth In pursuance to the recommendations of the H.P. Public Service Commission, the respondent No.1 offered appointment the above two candidates for the post of Civil Judge (Jr. Division) vide Notification No. Home-B(B)6-4/2006-VI-99 dated 27th December, 2013 (Annexure-R-V)” 15. Subsequently on 10.4.2017, this court having taken note of pleadings adduced by respective parties, passed following order: “The main issue, which arises for consideration in this bunch of writ petitions is, as to whether, appointment of respondents Mr. Vivek Kaisth and Ms. Akanksha Dogra and placement of Mr. Nishant Verma and Ms. Pratibha Negi, is in consonance with the law laid down by the apex Court, more particularly, in Malik Mazhar Sultan (3) and another vs. Uttar Pradesh Public Service Commission and others (2008) 17 SCC 703 and Malik Mazhar Sultan and another vs. Uttar Pradesh Public Service Commission and others (2009) 17 SCC 24 and as to whether on the basis of alleged past practice followed by the appointing authority, names of petitioners Ms. Meenakshi, Mr. Parvez, Mr. Kuldeep Sharma, Mr. Devender Kumar and Ms. Ashitosh Thakur, ought to have been considered for selection to the post of Civil Judge (Junior Division) or not. We find the response filed both by the State and the High Court to be evasive, not directly dealing with the issue. As such, let a supplementary affidavit, clarifying the position and their respective stand be positively filed by the said respondents, within next two days. It appears that the Commission has been treating the communications of the State as two separate requests for filling up the posts, though as per the High Court, only one requisition was sent. Let an affidavit, clarifying the position be filed by the Chairman, Public Service Commission on 12.4.2017.” 16. Pursuant to aforesaid direction issued by this court, on 10.4.2017, Shri Rohit Jamwal, Special Secretary to the Government of Himachal Pradesh filed a supplementary affidavit stating therein as under: “2. That it is submitted that respondent No.1 i.e. State of Himachal Pradesh has very limited role to play in the matter of selection of the candidates to the post of Civil Judge (Jr. Divn). That it is submitted that respondent No.1 i.e. State of Himachal Pradesh has very limited role to play in the matter of selection of the candidates to the post of Civil Judge (Jr. Divn). It is important to mention at this juncture that the respondent No.1 only offers appointment to such selected candidates only on the basis of the recommendations made by the respondent No.2 i.e. Himachal Pradesh Public Service Commission.” 17. During hearing of the above captioned cases, learned counsel representing petitioner Devender Kumar (CWP No. 4498 of 2014) invited attention of this court to the information supplied to him under the Right to Information Act, 2005, pursuant to his application dated 3.1.2014, wherein authority concerned, while disclosing names of the candidates selected in the Examination, also gave details with regard to number of vacancies, which have arisen with effect from 1.1.2013, till date. Contents of Annexure P-7 (page 56 of CWP No. 4498 of 2014), are extracted herein below: “With reference to your RTI application No. 217-2013-14 dated 3.1.2014, I have been directed to furnish the requisite information as under:- Point No.1 Following candidates have been appointed vide HPJS-2013 Sr. No. Roll No. Name & Address of the candidate Category Roster Point utilized 1. 1025 Ms. Ashu Chaudhary UR 49(UR) 2. 2006 Sri Nishant Verma SC 54(SC-8) 3. 1670 Ms. Pratibha Negi ST 14(ST-1) 4. 2185 Ms. Anit Sharma ST 339 (ST3) 5. 2172 Shri Baljit OBC 33(OBC4) 6. 1431 Shri Jitender Kumar OBC 42(OBC5) 7. 1126 Ms. Abha Chauhan UR 29(UR) 8. 1319 Shri Ajay Kumar UR 30(UR) 9. 2099 Ms. Akanksha Dogra UR 55(UR) 10. 1299 Sh. Vivek Kaisth UR 56(UR) Point No. 2: No. of vacancies which have arisen between 1st January 2013 to till date is as under: Sr. No. Roster Point No. Category Reason of vacancy Date from which vacant vacancies 4 24 UR UR Due to Promotion of Sh. Yajuvender Singh As Civil Judge (Sr. Division) 04.02.2013 5 28 UR Due to Promotion of Sh. Hitender Kumar as Civil Judge (Sr. Division 01.02.2013 3. 29 UR Due to promotion fo Sh. Hoshiar Singh Vema 20.05.2010 9 30 UR Due to promotion of Shri Pankaj as Civil Judge (Senior Division) 1.8.2013 10 55 UR Due to creation of new court of Civil Judge (Jr. Division) 18.4.2013 11 56 UR Due to creation of new court of Civil Judge (Jr. Division 01.02.2013 3. 29 UR Due to promotion fo Sh. Hoshiar Singh Vema 20.05.2010 9 30 UR Due to promotion of Shri Pankaj as Civil Judge (Senior Division) 1.8.2013 10 55 UR Due to creation of new court of Civil Judge (Jr. Division) 18.4.2013 11 56 UR Due to creation of new court of Civil Judge (Jr. Division) 18.4.2013 12 11 UR Due to discharge of Shri Sunish Aggarwal from service 19.9.2013 13 31 UR Due to promotion of Ms. Sheetal Sharam 9.12.2013 14 32 UR Due to promotion of Sh. Vivek Khanal 10.12.2013 During this year three members of the H.P. Judicial Service in the cadre of District Judges/Additional District Judges are going to retire from service after attaining the age of superannuation i.e. first 31.3.2014, second on 31.8.2014 and third 30.9.2014 and 3 anticipated vacancies are likely to fall vacant or arise till 15th October, 2014, of general category. Point No. 3: While calculating the anticipated vacancies for recruitment year 2013, the period for consideration was 1st January, 2013 to 31st December, 2013.” 18. Having taken note of the aforesaid information supplied to aforesaid petitioner under Right to Information Act, 2005, this court vide order dated 30.8.2019 called upon the High Court to file an affidavit as to “how the vacancies as reflected at page 56 of CWP No. 4498 of 2014 were filled up and whether this vacancy position was taken into consideration while sending the requisition vide Annexure P-2”. In response to aforesaid order passed by this Court, Registrar General, High Court of Himachal Pradesh filed his affidavit dated 19.9.2019, stating therein as under:(from Pp. 346-352 of CWP No. 3319 of 2014) “2. That in compliance of the aforesaid orders it is humbly submitted that in the year 2013, the High Court of Himachal Pradesh sent a requisition to the Principal Secretary (Home) to the Government of Himachal Pradesh vide Registry letter dated 11.01.2013 (Annexure P- 2) for filling up the vacancies in the cadre of Civil Judge (Junior Division) now Civil Judges as under:- 1. Existing vacancies+ 6 (OBC-2, SC-1, ST-2 & UR-1) 2. Future vacancies in case Presiding Officers, Fast Track Courts continue after 31.03.2013. = 2 (UR). 3. Existing vacancies+ 6 (OBC-2, SC-1, ST-2 & UR-1) 2. Future vacancies in case Presiding Officers, Fast Track Courts continue after 31.03.2013. = 2 (UR). 3. That the Roster Points in respect of above existing and future vacancies, which have also been mentioned against point No.1 of page 56, are as under:- Existing Vacancies Roster Points OBC-2 33 AND 42 SC-1 54 ST-2 14 AND 39 UR-1 49 Future Vacancies Roster Points UR-2 29 AND 30 4. That against the aforesaid advertised vacancies the State Government of Himachal Pradesh vide Notification dated 29.11.2013 made appointments and Roster Points occupied by them are as under:- Against existing vacancies Roster Points 1. Ms. Anshu Chaudhary (Gen) 49 2. Sh. Nishant Verma (SC) 54 3. Ms. Pratibha Negi (ST) 14 4. Ms. Anita Sharma (ST) 39 5. Shri Baljeet (OBC) 33 6. Sh. Jitender Kumar (OBC) 42 Against future vacancies Roster Points 7. Ms. Abha Chauhan (Gen) 29 8. Sh. Ajay Kumar (Gen.) 30 A copy of Notification dated 29.11.2013 is annexed as Annexure R-3/I. Roster Point No. 55 & 56 (Page 56) 5. That in addition to above advertised vacancies two more following candidate of un-reserved category from the Select List of 2013 were appointed by the State Government vide Notification dated 27.12.2013:- Name of Candidates Roster Points 1. Ms. Akanksha Dogra 55 2. Sh. Vivek Kaisth 56 A copy of Notification dated 27.12.2013 is annexed as Annexure R3/II. However, it is humbly submitted that above two vacancies were not included in the requisition dated 11.01.2013 (Annexure P-2) as these vacancies were unforeseen vacancies occurred on account of creation of two new courts at Solan and Amb vide Notification dated 04.04.2013 issued by the State Government. A copy of Notification dated 04.04.2013 is annexed as Annexure 4-3/III. 6. That it is further submitted that as per time schedule/table under Rule 5 of H.P. Judicial Service Rules, 2004 (Ist Amendment rules, 2008), the number of vacancies are /were to be notified by the High Court by 15th January every year and vacancies are/were to be calculated including (a) existing vacancies; (b) future vacancies that may arise within one year due to retirement; and (c) future vacancies that may arise due to promotion, death or otherwise, say ten percent of the number of posts. However, the Hon'ble Supreme Court of India vide order dated 24.03.2009 passed in Civil Appeal No. 1867 of 2006 titled Malik Mazhar Sultan and another vs. U.P. Public Service Commission and others was pleased to modify aforesaid clause to the extent that in future the High Court shall notify the existing number of vacancies plus the anticipated vacancies for the next one year i.e. on account of retirement and promotion. Roster Pont No. 24 & 28 (page 56) 7. That with regard to the vacancies position shown under point No.2, at page 56, which were supplied to the petitioner under RTI Act, it is submitted that vacancies shown against Roster Points No. 24 and 28 were calculated as future vacancies in the requisition sent in the year 2012, as per time scheduled prescribed under Rule-5 of H.P. Judicial Service Rules, 2004, which were to be arisen on account of promotion in the cadre of District Judge/Additional District Judge and Senior Civil Judge. The process for filling up the said vacancies was initiated in the year 2012, which was completed in the year 2013 and hence, the candidate from the Select List of 2012 namely Shri Anish Kumar against Roster Point No. 24 and Shri Ramesh Kumar against Roster Point No. 28 were appointed, who joined as such on 19.01.2013 and 09.05.2013 respectively, against the posts vacated by Shri Yajuvender Singh and Sh. Hitender Kumar on their promotion as Senior Civil Judge vide Notification dated 10.01.2013, who joined as such on 04.02.2013 and 01.02.2013. The copies of Notification dated 10.01.2013 and joining reports dated 04.02.2013 and 01.02.2013 are annexed as Annexure R-3/IV to R-3/VI. It is pointed out that Shri Yajuvender Singh though promoted on 10.01.2013 but joined on 04.02.2013, therefore, Shri Anish Kumar was temporarily shown against Roster Point No. 49 and thereafter on joining of Shri Yajuvender Singh on 04.02.2013, he was, immediately assigned the Roster Point No. 24 and in this way the vacancy against Roster Point No. 49 remained intact for the vacancy notified for the recruitment process of 2013. it is submitted that in the time schedule under Rule-5 it has been prescribed that the Select List shall be valid till the next Select List is published. it is submitted that in the time schedule under Rule-5 it has been prescribed that the Select List shall be valid till the next Select List is published. Since the Select List of 2013 was to be published in the month of October, 2013, as per time schedule, therefore, the Select List of 2012 was valid at the time of appointments of Shri Anish Kumar and Shri Ramesh Kumar and accordingly, the vacancy position was sent to the State Govt. to fill up the aforesaid vacancies from the candidates of the Select List of 2012 recruitment process vide letter dated 20.11.2012 and 13.03.2013. The copies of letter dated 20.11.2012 and 13.03.2013 are annexed as Annexure R-3/VII and R-3/VIII. It is submitted that Shri Ramesh Kumar resigned on account of his selection in the Judicial Service and against the said post Shri Naresh Kumar was appointed by the State Govt. Roster pont No. 29 & 30 (page 56) 8. That petitioners No. 29 and 30 were calculated as future vacancies of un-reserved category in the requisition of 2013 against which Ms. Abha Chauhan and Shri Ajay Kumar were appointed vide Notification dated 29.11.2013 (Annexure R-3/I). Roster pont No. 55, 56 & 11 (page 56) 9. That Roster Points No. 55, 56 and 11 were the unforeseen vacancies as the same occurred on account of creation of two new Courts at Solan and Amb on 04.04.2013 (Annexure R-3/III) and vacancy against Roster Point No. 11 occurred on 19.09.2013 due to discharge of Shri Suneesh Aggarwal Civil Judge from service vide State Government Notification dated 19.09.2013. A copy of said Notification is annexed as Annexure R-3/IX. Roster pont No. 31 & 32 (page 56) 10. That Roster Points No. 31 and 32 were also not included in the requisition of 2013 as the same arose on account of unforeseen reasons. The Roster Point No. 31 fell vacant on the resignation of Shri Anish Garg, Central Project Coordinator in the cadre of Senior Civil Judge, who relinquished the charge on 23.08.2013. A copy of charge relinquishment report dated 23/24.08.2013 is annexed as Annexure R3/X. Against the said vacancy, Ms. Sheetal Sharma was promoted as Senior Civil Judge on 09.12.2013. A copy of Notification dated 09.12.2013 is annexed as Annexure R-3/XI. A copy of charge relinquishment report dated 23/24.08.2013 is annexed as Annexure R3/X. Against the said vacancy, Ms. Sheetal Sharma was promoted as Senior Civil Judge on 09.12.2013. A copy of Notification dated 09.12.2013 is annexed as Annexure R-3/XI. The Roster Point No. 32 fell vacant on account of abolition of Fast Track Courts and further conversion /establishment of the said posts in the cadre of District Judges/Additional District Judges by the State Government vide Notification dated 30.03.2013. A copy of Notification dated 30.03.2013 is annexed as Annexure R-3/XII. On conversion of the aforesaid Fast Track Courts into permanent care, the process for filling up of the said vacancies was initiated vide resolution of Hon’ble Administrative Committee dated 15.05.2013. In the said process one vacancy by way of Limited Competitive Examination was notified Limited Direct Examination was notified. However, none of the eligible judicial officers could qualify the said examination, therefore against the said vacancy Shri R.K Tomar, Senior Civil Judge-cum-CJM was promoted as Additional District and Sessions Judge on 30.11.2013 and vide Notification dated 09.12.2013 issued by the High Court was posted as Additional District and Sessions Judge-II, Shimla. A Copy of Notification dated 09.12.2013 is annexed as Annexure R-3/XIII. Against the said post vacated by Shri Tomar, Shri Vivek Khanal was promoted vide Notification dated 09.12.2013 (Annexure R-3/XI) and he joined as such on 10.12.2013. A copy of charge assumption report dated 10.12.2013 is annexed as Annexure R-3/XIV. 11. That the aforesaid vacancies in respect of Roster Point(s) No. 11, 31 and 32 were advertised during the next recruitment process initiated in January, 2014 and same stands filled up in the year 2014. 12. That it is further submitted that as per time schedule/table under Rule-5 of H.P. Judicial Service Rules, 2004, only those future/anticipated vacancies, which were to occur within next one year on account of retirement and promotion, are/were to be calculated while sending the requisition in a particular year, therefore, the vacancies occurred on account of unforeseen reasons, as stated in the above paras, could neither be anticipated nor calculated while sending the requisition vide Registry letter dated 11.1.2013 (Annexure R-3/A).” 19. In nutshell, the High Court, in the aforesaid supplementary affidavit admitted that as per the time schedule /table under Rule 5 of the Rules, only those future /anticipated vacancies, which would occur within one year on account of retirement, promotion are/were to be calculated, therefore vacancies occurred on account of unforeseen events, could be neither anticipated nor calculated, while sending letter dated 11.1.2013. As per said supplementary affidavit, roster Points Nos. 31, 32, 55, 56 and 11 were unforeseen vacancies. 20. Having heard learned counsel for the parties and perused the pleadings adduced on record by respective parties, vis-à-vis prayer(s) made in the instant petitions, this court finds that, admittedly. vide advertisement dated 1.2.2013, respondent No.2 invited applications for the Examination, for 08 posts i.e. 06 existing and 02 anticipated vacancies. Out of 06 existing vacancies, 02 were for OBC, 1 for SC, 2 for ST and 1 for Unreserved. Besides this, 02 anticipated vacancies mentioned for next one year were shown to be in unreserved category. It is not in dispute that all the petitioners herein as well as respondents Nos. 4 and 6 participated in the selection process. Though the petitioners namely Kuldeep Sharma and Devender Kumar cleared the main examination but they were not called for interview on account of theirs being lower in merit, whereas, petitioner Ashitosh Thakur and respondents Nos. 4 and 6, Vivek Kaisth and Akanksha Dogra were called for interview but they could not make it to the final list of selected candidates. However, respondents Nos. 4 and 6 alongwith petitioners Meenakshi and Parvez, who had also appeared in the interview under their respective categories, subsequently came to be placed in the Select List prepared by respondents, pursuant to joint exercise undertaken by respondents Nos. 1 to 3, in terms of the directions contained in judgment dated 3.9.2011 passed by Division Bench in Shweta Dhingra (supra), wherein Division Bench having taken note of judgment rendered by Hon'ble Apex Court in Civil Appeal No. 1867 of 2006 titled Malik Mazhar Sultan and another vs. U.P. Public Service Commission and others, and CWP No. 3828 of 2009, titled Hakikat Vs. State of H.P. & others, had directed respondents herein to jointly take up the exercise of preparation of Select List immediately after the publication of the merit list by including 2/3rd of actual and anticipated vacancies. 21. State of H.P. & others, had directed respondents herein to jointly take up the exercise of preparation of Select List immediately after the publication of the merit list by including 2/3rd of actual and anticipated vacancies. 21. At this stage, it would be apt to take note of following paras of aforesaid judgment (as available at Pp. 39-42 of CWP No. 1730 of 2014) “2. The Apex Court in Malik Mazhar Sultan (3) and another vs. Utter Pradesh Service Commission and others has issued the guidelines with regard to the filling up of the vacancies to the post of Civil Judge (Junior Division) by direct recruitment. The vacancies have to be notified by 15th January every year. The vacancies include existing vacancies on account of retirement and future vacancies and which may arise on account of promotion, death or otherwise. It is also held in the judgment that the Select List will operate till the Select List for the subsequent year comes into operation. Still further, it is directed that the Select List should be published in the order of merit and should be double of the vacancies notified. This direction was subsequently modified by the Apex Court by the order dated 24th March, 2009 to the effect that the Select List should contain the existing number of vacancies and the anticipated vacancies for the succeeding year and should include some candidates in the waiting list. Unfortunately, the Select List published by the Public Service Commission was only for the clear cut vacancies of five and three anticipated. No doubt, the said list is in the order of merit. As far as the facts of the instant cases are concerned, there is no dispute with regard to the Select List on the aspect of communal rotation, so that we need not go into that aspect at this stage, we may refer the same for future guidelines later in this judgment. 3. In the writ petition filed by Sh. Niranjan Singh, Annexure P-6 is the Select List. In the Select List for the clear cut vacancies, No.4 Vinay Sharma is the one who has not opted to join duties. Be that as it may. In the place of Sh. Vinay Sharma, Sh. Aman Inder Singh was offered the appointment and he has declined to accept the same. Next in the merit are Sh. Danish Gupta, Ms. Savita Kumari and Ms. Be that as it may. In the place of Sh. Vinay Sharma, Sh. Aman Inder Singh was offered the appointment and he has declined to accept the same. Next in the merit are Sh. Danish Gupta, Ms. Savita Kumari and Ms. Dipti Goyal. The petitioner has produced the affidavits of those candidates as Annexures P-16, P-17 and P-18. It is stated in those affidavits that Sh. Danish Gupta and Ms. Savita Kumari have opted for Haryana Judicial Service and already joined duties there and Ms. Dipti Goyal has joined the Punjab Judicial Service. The next in the general merit is Niranjan Singh. Therefore, the vacancy arising on account of non-joining duty of Sh. Vinay Sharma, who had been put in Roster Point No. 12 in the general merit list has to be offered to Sh. Niranjan Singh. The steps in that regard shall be taken by the Public Service Commission within ten days from today and orders of appointment shall be issued by the Government within one week thereafter. 4. Steps for recruitment for the year 2011 have already been initiated. We find that six clear cut vacancies have been notified (2-SC, 2-ST and 2-OBC). Six are anticipated (2-General, 1-ST and 3-OBC). The Public Service Commission, it is expected would be publishing the Select List by the end of October, 2011. Therefore, the Select List already prepared /to be duly prepared is to operate till the Select List of 2011 is published. There will be a direction to the High Court to intimate all the available vacancies as on 15th October,2011 to the Commission and the Government on or before 17th October, 2011. Steps for filling up for those vacancies shall be taken by the Commission and the Government from the Select List of 2010 and the appointments shall be made before 29th October, 2011. 5. It is informed that the Select List happened to be limited to the clear cut vacancies and actual number of anticipated vacancies in view of the directions already issued by the Government in 2008-09. We find that the Government had issued such instructions in order to avoid unnecessarily litigation. But apparently, the Government has not taken note of directions issued by the Apex Court, which is already referred to above. We find that the Government had issued such instructions in order to avoid unnecessarily litigation. But apparently, the Government has not taken note of directions issued by the Apex Court, which is already referred to above. Therefore, there will be a direction to the Public Service Commission to publish a revised Select List of the candidates from the year 2010 merit list by including 2/3 of the actual and anticipated vacancies. 6. The Select List and the merit list are two concepts. The merit list is the list of candidates ranked according to their score in the examination-cum-interview. The Select List is one which is prepared according to the communal roster. 7. Pursuant to the judgment of this Court in CWP No. 3828 of 2009, titled Hakikat Vs. State of H.P. & others, the roster is now to be maintained by the High Court; earlier it was maintained by the Government. Since the Select List is to be published by the Public Service Commission, there will be direction to the High Court, Government and the Public Service Commission to jointly take up this exercise of preparation of Select List immediately after the publication of the merit list and this exercise shall be completed within two weeks of the publication of the merit list, every year. Thereafter, the Public Service Commission shall publish the Select List. Once the Select List is published, the appointment shall be strictly made according to the said list prepared on the basis of merit-cum-communal rotation.” 22. Perusal of aforesaid judgment, which is based upon the guidelines framed by Hon'ble Apex Court in Malik Mazhar Sultan (supra) reveals that the court reiterated that the vacancies have to be notified by 15th January every year and vacancies would include vacancies arising on account of retirement and future vacancies on account of promotion, death or otherwise. In the aforesaid judgment, it has been held that the Select List will operate till the time, next Select List comes into operation for the next year. As per guidelines farmed by Hon'ble Apex Court in Malik Mazhar Sultan, the Select List should be published in the order of merit and should be double the vacancies notified. In the aforesaid judgment, it has been held that the Select List will operate till the time, next Select List comes into operation for the next year. As per guidelines farmed by Hon'ble Apex Court in Malik Mazhar Sultan, the Select List should be published in the order of merit and should be double the vacancies notified. Apex Court by the order dated 24th March, 2009 to the effect that the Select List should contain the existing number of vacancies and the anticipated vacancies for the succeeding year and should include some candidates in the waiting list. Since in that case, Commission informed the court that the Select List happened to be limited to clear cut vacancies and actual number in view of directions of the Government issued in the year 2008-09, Division Bench issued a direction to the Commission to publish a revised Select List of the candidates from the year 2010 merit list by including 2/3 of the actual and anticipated vacancies. 23. Pursuant to aforesaid directions, meeting for preparation of the Select List of Himachal Pradesh Judicial Services was held in the premises of Public Service Commission on 21.10.2013, (Annexure R-1 of reply filed by respondent No.1), wherein Committee having perused result of the Examination and keeping in view the direction of this Court, to prepare the Select List by including 2/3rd of actual and anticipated vacancies, placed respondent Nos. 4 and 6 i.e. Ms. Akanksha Dogra (Roll No. 2099) and Vivek Kaisth, (Roll No. 1299) (candidates of general category), Meenakshi (Roll No.1386)(SC) and Parvez (Roll No. 1139) (ST) in the Select List as no other candidate from OBC category had qualified the Examination. 24. Having perused aforesaid minutes of meeting, it is clear that respondents Nos. 4 and 6, Vivek Kaisth and Akanksha Dogra were much above in the merit list of successful candidates in comparison to petitioner namely Ashitosh Thakur, who was also called for interview. Since petitioners namely Kuldeep Sharma and Devinder Kumar, were never called for interview on account of theirs being lower in merit of general candidate, there was no question of theirs being placed in the Select List. 25. Since petitioners namely Kuldeep Sharma and Devinder Kumar, were never called for interview on account of theirs being lower in merit of general candidate, there was no question of theirs being placed in the Select List. 25. It is quite apparent from the judgment rendered by Apex Court in Malik Mazhar Sultan that the vacancies are to be notified by 15th January every year, which should include existing vacancies on account of retirement and future vacancies, which may arise on account of promotion, death or otherwise. As per said judgment, the Select List shall operate till the Select List for the next year comes into operation, meaning thereby that the Select List in the case at hand was to remain in operation till the time Select List for the subsequent year came into operation. It is also not in dispute that the process was initiated for conducting the Examination-2014, whereby applications came to be invited vide advertisement No. 8/2013 dated 1.2.2014 (Annexure P-9 of CWP No. 3319 of 2013), for 6 vacancies of general category, 3 existing and 3 anticipated, meaning thereby that the Select List prepared by the Committee comprising of Registrar General, High Court, Secretary, Himachal Pradesh Public Service Commission and Deputy Secretary (Home) to the Government of Himachal Pradesh, in its meeting held on 21.10.2013, placing the names of respondents Nos. 4 and 6 Vivek Kaisth and Akanksha Dogra and petitioners namely Meenakshi and Parvez in the Select List, was in operation, when respondent No. 2, after having received reference from respondent No.1, recommended respondent Nos. 4 and 6 for appointment as Civil Judges (Junior Division) vide communication dated 17.12.2013 (Annexure R-4 annexed with the supplementary affidavit dated 16.10.2015 filed by Joint Secretary, Department of Home, Government of Himachal Pradesh.) 26. Now the question which arises in the case at hand is, “whether respondent No.1 could request respondent No.2 to sponsor three more candidates for appointment against Roster Points Nos. 55, 56 and 11 under the unreserved category vide communication dated 25.11.2013, (Annexure P11), especially when aforesaid three posts against Roster Points Nos. 55, 56 and 11 under unreserved category, were not advertised or shown against anticipated vacancies vide advertisement No. VII of 2012 (Annexure P-2), wherein admittedly only 02 anticipated vacancies against unreserved category were shown and against aforesaid two anticipated vacancies for unreserved category, selection process had completed. 27. 55, 56 and 11 under unreserved category, were not advertised or shown against anticipated vacancies vide advertisement No. VII of 2012 (Annexure P-2), wherein admittedly only 02 anticipated vacancies against unreserved category were shown and against aforesaid two anticipated vacancies for unreserved category, selection process had completed. 27. Petitioners, Kuldeep Sharma and Devender Kumar have claimed that, when 9 posts of general unreserved category were shown vacant on different dates i.e. 4.2.2013, 1.2.2013, 20.5.2013, 1.8.2013, 18.4.2013, 18.4.2013, 19.9.213, 9.12.2013 and 10.12.2013, and three vacancies were falling vacant on account of retirement on 1.4.2014, 1.9.2014 and 1.10.2014, which fact is substantiated by information contained in Annexures P-7 and P11, respondents ought to have carried out joint exercise to conduct interview for 13 posts, however, respondents without complying with judgment in Kuldeep Sharma’s case adopted altogether a new procedure by directly selecting the candidates from the Select List qua the posts which though had become available on account of creation of courts and discharge of one judicial officer, but were never advertised, that too without affording them opportunity to make their claim against three posts subsequently occurred on account of unforeseen reasons. 28. Besides above, petitioners named herein above also claimed that pursuant to judgment dated 3.9.2011 passed in CWP No. 3325 of 2011, Kuldeep Sharma vs. State of Himachal Pradesh, scope of consideration of vacancies was enlarged upto 15th October, 2012 for the recruitment year 2011 and accordingly Gaurav Kumar was given appointment against Roster Point No. 19, which fell vacant on 26.12.2013 and Prashant Negi, against Roster Point No. 21, which fell vacant on 25.6.2012. 29. Precisely the claim of the petitioners named herein above is that since the appointments were offered to Prashant Negi and Gaurav Kumar in compliance to Division Bench judgment in Kuldeep Sharma, claim of the aforesaid petitioners also deserves to be considered in light of judgment rendered in Kuldeep Sharma supra. 30. Reply filed by respondent No.3 in CWP No. 4498 of 2014, reveals that posts against which Gaurav Kumar and Prashant Singh Negi, came to be appointed, were already calculated in 2011 as future vacancies, which were to arise on account of retirement of Judicial Officers in the cadre of District Judges and Additional District Judge and resultantly, promotion of Civil Judges (Senior Division) to the post of Presiding Officer, Fast Track Courts. Since process of continuation of Fast Track Court was pending with State Government and due to delay in said process future vacancies which were notified in the year 2011, would have become available in June-July, 2012 and, as per direction in Malik Mazhar Sultan, Select List of the year 2011 was valid till next Select List is published thus, two candidates were appointed against anticipated vacancies vide Notification dated 6.8.2012. Since the matter was under consideration with State Government qua future vacancies notified in the year 2011, therefore, at the time of conveying vacancy position of the year 2012, said future vacancies of 2011 remained intact and after continuation of Fast Track Courts in Himachal Pradesh, respondent No.1, vide letter dated 20.7.2012, was informed that due to promotion of 07 Civil Judges (Junior Division) as Civil Judges (Senior Division), during selection process of 2011 and after adjusting 3 posts of Civil Judges (Junior Division), who were earlier appointed against reserved posts, 2 anticipated vacancies which were advertised during the year 2011 of general category have become available and therefore, steps be taken /initiated for filling up aforesaid posts anticipated vacancies for general category from Select List of 2011-12 vide communication dated 9.11.2011, hence, it is wrong to contend that the scope of consideration was enlarged as per Kuldeep Sharma’s case. 31. Similarly, record reveals that Naresh Kumar also preferred a representation to respondent No.1 for appointment as Civil Judge (Junior Division), which fell vacant on resignation of Ramesh Kumar and accordingly, representation was sent to respondent No.1 to consider his candidature against said post against Select List of 2012. Respondent No.1 on the recommendation of respondent No.2, offered appointment to said person on the post of Civil Judge (Junior Division), as such it is wrong to claim that his appointment is wrong and liable to be quashed and set aide. 32. Respondent No.1 on the recommendation of respondent No.2, offered appointment to said person on the post of Civil Judge (Junior Division), as such it is wrong to claim that his appointment is wrong and liable to be quashed and set aide. 32. Record reveals that respondent No.3 while conveying vacancy position as on 20.11.2012 (Annexure R-3/C in CWP No. 4498 of 2014) specifically mentioned that Roster Point No. 49, vacated by Shri Neeraj Goel was not included in the advertisement of 2012, however, respondent No. 1 while issuing appointment to Shikha Thakur Lakhanpal and Vikas Gupta, also gave appointment to Shri Aneesh Kumar, but at this stage, it is relevant to note that the promotion orders of Shri Yajuvender Singh and Shri Hitender Kumar as Civil Judges (Senior Division), were issued vide Notification dated 10.1.2013, on ad hoc basis, from the dates Shri Yogesh Jaswal and Shri Bahadur Singh relinquished the posts of Presiding Officers, Fast Track Courts. But Roster Points occupied by them could not be shown till that time and as such, Shri Anish Kumar and other two Judicial Officers were to be notified at Roster Point No. 49, for a short period of 16 days and on joining of Judicial Officers Shri Anish Kumar was shown at Roster Point No. 24 and other candidate, Ramesh Kumar was appointed against Roster Point No. 28. 33. In view of this, Roster Point No. 49, which was advertised during 2013, remained intact for the candidates of 2013 batch. Roster Points Nos. 24 and 28 were future vacancies of 2012 batch, which fell vacant on account of promotion of two judicial officer as Civil Judges (Senior Division) and process initiated in the year 2012 was completed in 2013, however, on resignation of Shri Ramesh Kumar, representation filed by Shri Naresh Kumar, was sent to respondent No.1 for consideration, who subsequently being appointing authority, offered appointment to him against said post vacated by Shri Ramesh Kumar. 34. Having taken note of aforesaid facts, which are detailed in reply filed by respondent No.3, petitioners herein are wrong in contending that the vacancies were advertised during the year 2013 and against those posts, appointment was given to candidates of 2012 batch. Moreover, in the communication dated 30.10.2013 addressed to respondent No.1 by respondent No.3, whereby vacancy position was sent to respondent No.1, it was mentioned that Roster Points Nos. Moreover, in the communication dated 30.10.2013 addressed to respondent No.1 by respondent No.3, whereby vacancy position was sent to respondent No.1, it was mentioned that Roster Points Nos. 55, 56, and 11 were not included in requisition of 2013, as said vacancies arose on 18.4.2013, due to creation of two new courts at Solan and Amb and due to discharge of Shri Suneesh Aggrawal, Civil Judge (Junior Division)-cum-JMIC Ani, on 19.9.2013. 35. Reply filed by respondent No.3, reveals that pursuant to the information called for by respondent No.1, it was informed to the respondent No.1 that Roster Points Nos. 55, 56 and 11 (unreserved) were not included in requisition of posts to be notified in 2013 as these vacancies became available on 18.4.2013 and 19.9.2013 for the reasons stated above. But there is nothing on record suggestive of the fact that that the High Court, vide aforesaid communication, ever requested respondent No. 1 to offer appointment to the persons figuring in the Select List against Roster Points Nos. 55, 56 and 11, however, it appears that respondent No.1, after having received aforesaid vacancy position from respondent No.3, of its own, directed the Commission, vide letter dated 25.11.2013, to recommend three candidates for appointment as Civil Judges (Junior Division) from amongst the persons figuring in the Select List prepared by the Committee in its meeting held on 21.10.2013. 36. Interestingly, respondent No.2, which is a recruiting agency, without ascertaining the factual position qua the number of posts, advertised vide Annexure P-2, recommended three candidates for appointment as Civil Judges (Junior Division) from amongst the persons figuring in the Select List prepared by the Committee in its meeting held on 21.10.2013, whereafter, respondent Nos. 4 and 6 were offered appointment as Civil Judges (Junior Division) against Roster Points Nos. 55 and 56 by respondent No.1, which vacancies were admittedly not included in advertisement, Annexure P-2. 37. Respondent No.3, in its reply and subsequent affidavits filed pursuant to orders passed by this court from time to time, has categorically stated that the issuance of Notification dated 27.12.2013, issued by respondent No.1 appointing Vivek Kaisth and Akanksha Dogra is without consultation of the High Court and not in accordance with law, as these posts were not advertised and were not part of selection process. It has been further stated by High Court that the order of appointment, if any, of petitioners as Civil Judge (Junior Division) has to be issued by State Government being the appointing authority, however, issuance of appointment order may not be correct, as it may result in appointing more candidates, than the posts available. 38. Hon'ble Apex Court, vide its order dated 24.3.2009 passed in Malik Mazhar Sultan supra has clarified that in future High Court shall notify exiting and anticipated vacancies for the next one year, meaning thereby that the existing and anticipated vacancies for next one year are required to be advertised and mere occurrence of vacancies during the subsistence of selection process initiated pursuant to advertisement issued for filling up existing and anticipated vacancies for a particular year, would not entitle respondents to fill up the same from the Select List, rather for filling up future /anticipated vacancies, not included in one selection process, advertisement is to be issued. No doubt, Select List prepared by respondents pursuant to directions issued by Division Bench of this court in Shweta Dhingra, was to remain in force till the time fresh Select List for the next year is prepared but otherwise very purpose of keeping persons in the Select List is to ensure that vacancies /posts remaining unfilled due to non-joining of selected candidates do not remain vacant and persons borne on Select List are offered appointment. However, the posts/vacancies, which occurred in the year 2013, after issuance of advertisement dated 1.2.2013 (Annexure P-2) were out of scope of advertisement Annexure P-2 and as such, could not have been offered to the candidates figuring in the Select List directly. There cannot be any dispute qua the fact that the persons figuring in the Select List prepared on the basis Examination 2013, had never competed against the posts/ vacancies, which were not at all advertised vide annexure P-2, but were later on filled in directly from the Select List. 39. No doubt in the case at hand, Roster Points Nos. There cannot be any dispute qua the fact that the persons figuring in the Select List prepared on the basis Examination 2013, had never competed against the posts/ vacancies, which were not at all advertised vide annexure P-2, but were later on filled in directly from the Select List. 39. No doubt in the case at hand, Roster Points Nos. 55, 56 and 11 were not included in the advertisement issued in 2013, as they fell vacant on 18.4.2013 due to creation of two posts of Civil Judges (Junior Division) at Solan and Amb and third due to discharge from service of Shri Suneesh Aggarwal, Civil Judge (Senior Division)-cum-Judicial Magistrate First Class Ani and as such, these posts were required to be advertised separately as future vacancies for the next year. Otherwise also, operation of Waiting/Select List should be confined to vacancies notified for that examination and not for the vacancies arising in future unless a policy decision is taken by the Government to that effect: Reliance is placed upon Gujarat State Dy. XEN Assn. v. State of Gujarat, 1994 Supp(2) SCC 591, wherein it has been held as under: “10. How a waiting list is to operate in the State is clear from a circular issued by the State Government on 27-12-1983. The relevant portion of the circular is extracted below: "According to the instructions issued by the department often and often, waiting list prepared by the Gujarat Public Service Commission over and above the number of posts requisitioned shall remain in force up to 2 years or under circumstances up to the declaration of the result of next examination. The basic purpose of the preparation of waiting list is when sufficient candidates are not available from the merit list prepared for requisition of particular year, shortfall can be met with from waiting list or for making recruitment during emergent condition, waiting list cannot be considered as merit list for that year or of next year, similarly waiting list cannot be used as a substitute to the requisition of next year. Further as the requisition statement for the particular year is sent for the post allocable to direct recruitment for that year as per provision in relevant rules, naturally the requirement of subsequent year cannot be incorporated. Further as the requisition statement for the particular year is sent for the post allocable to direct recruitment for that year as per provision in relevant rules, naturally the requirement of subsequent year cannot be incorporated. Considering on the above facts it is not fair to stop the regular procedure of recruitment or not to give new advertisement for the reason that merit list or waiting list prepared as part of merit list of previous year is in force." Although the circular was issued in 1983 but it only attempted to clarify what was the implied purpose of a waiting list. Even without it, the operation of a waiting list should be confined to the vacancies notified for that examination and not for any vacancy arising in future unless a policy decision is taken by the Government to that effect. Appointment in future vacancies from waiting list prepared by the Commission should be exception rather than the rule. It has many ramifications. In any case, the High Court should not have assumed upon itself the role of appointing authority unless it found that the Government was acting arbitrarily. No rule has been shown that selection of direct recruits was to take place every year. In absence of such rule, the proviso could not apply However, its validity was not challenged either in the High Court or in this so Court. It has, therefore, to be construed so as not to defeat the objective of its enactment. For its working reasonably it has to be understood that once recruitment by direct selection has been made in any year then the quota of direct recruits till then should be deemed to have been exhausted and if an vacancy could not be filled for any reason then it should be deemed to have lapsed and could not be carried forward. Read in this manner the quota of direct recruits till 1980 got exhausted. But it could not affect quota of 1981-82 and 1982-83, therefore, no appointments on the quota of direct recruits for 1981-82 and 1982-83 could be made from the waiting list of 1980. The entire exercise undertaken by the High Court of finding out number of vacancies was thus an exercise in futility. But it could not affect quota of 1981-82 and 1982-83, therefore, no appointments on the quota of direct recruits for 1981-82 and 1982-83 could be made from the waiting list of 1980. The entire exercise undertaken by the High Court of finding out number of vacancies was thus an exercise in futility. Further, what the High Court has done is that it has not worked out the vacancies only till the examinations were held but it went further to hold that since the result of the next examination was declared in 1983 the vacancies for direct recruits arising between the date the result of 1980 examination was declared and before the result of 1982 was declared could be filled from the waiting list of 1980. In other words, the waiting list instead of being a list for filling the vacancy in exigencies arising out of non-joining of a candidate for the year for which the examination was held became a source of recruitment for the vacancies which were to arise between 1980 and 1983. And if the vacancies which arose in 1981-82 and 1982-83 are filled by this method then the examination of 1982 was held for which vacancy as normally the Government sends the requisition for the vacancies existing on the date of sending the requisition. We can appreciate the anxiety of the High Court that if examinations are not held regularly as has happened between 1983 to 1993 it may result in depriving fresh candidates from being selected and their post may be filled by promotees. But such concern could not result in nullifying entire procedure. The better course would have been to direct the Government to work out the vacancies and fill them by holding an examination, if necessary, in addition to the examination already held. But the procedure adopted by the High Court, of giving such vacancies to candidates who were in the waiting list does not appear to be correct. There was no contingency nor the State Government had taken any decision to fill the vacancies from the waiting list as it was not possible for it to hold the examination nor any emergent situation had arisen except the claim of some of the candidates from the waiting list that they should be given appointment for vacancies which arose between 1980 and 1983 and between 1983 and 1993. Such claim of the appellants who had appeared in a particular examination and were placed in the waiting list could not be sustained. In fact, the action of the State Government in not sending the requisition every year or at the most every second year to the Commission for holding an examination for vacancies which had arisen or were likely to arise was liable to be commented upon and the State Government should have been directed to take care in future that the examinations are held regularly. But in no case the vacancies arising in future should have been offered to the candidates in the waiting list of the earlier year. The direction of the High Court, therefore, to appoint the candidates from the waiting list in the vacancies which, according to its calculation, arose between the years 1981 to 1983 and between 1983 to 1993 cannot be upheld.” 40. Reliance is also placed upon judgment rendered by Apex Court in Rakhi Ray v. High Court of Delhi, (2010) 2 SCC 637 , wherein it has been held as under: “7. 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 Union of India & Ors. v. Ishwar Singh Khatri & Ors. (1992) Supp 3 SCC 84; Gujarat State Deputy Executive Engineers' Association v. State of Gujarat & Ors. (1994) Supp 2 SCC 591; State of Bihar & Ors. v. The Secretariat Assistant S.E. Union 1986 & Ors AIR 1994 SC 736 ; Prem Singh & Ors. (Vide Union of India & Ors. v. Ishwar Singh Khatri & Ors. (1992) Supp 3 SCC 84; Gujarat State Deputy Executive Engineers' Association v. State of Gujarat & Ors. (1994) Supp 2 SCC 591; State of Bihar & Ors. v. The Secretariat Assistant S.E. Union 1986 & Ors AIR 1994 SC 736 ; Prem Singh & Ors. v. Haryana State Electricity Board & Ors. (1996) 4 SCC 319 ; and Ashok Kumar & Ors. v. Chairman, Banking Service Recruitment Board & Ors. AIR 1996 SC 976 ). 12. In view of above, the law can be summarised to the effect that any appointment made beyond the number of vacancies advertised is without jurisdiction, being violative of Articles 14 and 16(1) of the Constitution of India, thus, a nullity, in-executable and unenforceable in law. In case the vacancies notified stand filled up, process of selection comes to an end. Waiting list etc. cannot be used as a reservoir, to fill up the vacancy which comes into existence after the issuance of notification/advertisement. The unexhausted select list/waiting list becomes meaningless and cannot be pressed in service any more. 18. In Malik Mazhar Sultan's case (supra), this Court made it clear that appointments in Judicial Service have to be made as per the existing statutory rules. However, direction was issued to amend the rules for future selections. This Court considered the correspondences between various authorities of the States and also the decision taken in the conference of the Chief Ministers and Chief Justices held on 11.3.2006, and observed as under: "... Before we issue general directions and the time schedule to be adhered to for filling vacancies that may arise in subordinate courts and district courts, it is necessary to note that selections are required to be conducted by the concerned authorities as per the existing Judicial Service Rules in the respective States/Union Territories...... As already indicated, the selection is to be conducted by authorities empowered to do so as per the existing Rules. ... In view of what we have already noted about the appointments to be made in accordance with the respective Judicial Services Rules in the States, the apprehension of interference seems to be wholly misplaced...." (Emphasis added). As already indicated, the selection is to be conducted by authorities empowered to do so as per the existing Rules. ... In view of what we have already noted about the appointments to be made in accordance with the respective Judicial Services Rules in the States, the apprehension of interference seems to be wholly misplaced...." (Emphasis added). Therefore, it is clear that this Court clarified that selection was to be made as per the existing Rules and direction was issued for amending the existing laws to adopt the recommendations of Justice Shetty Commission as approved by this Court for the future. 24. 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. In the instant case, once 13 notified vacancies were filled up, the selection process came to an end, thus there could be no scope of any further appointment.” 41. It is quite apparent from the aforesaid exposition of law laid down by Apex Court that the vacancies which arise subsequent to issue of advertisement cannot be filled up from the existing Select List and Waiting List cannot be used as a reservoir to fill up vacancies, which came into existence after issuance of Notification/advertisement. 42. Recently, Apex Court in High Court of Kerala v. Reshma A., (2021) 3 SCC 755 , has held that once process of selection is annulled, notification of probable or anticipated vacancies for the selection year and recruitment over and above the notified vacancies is impermissible. The Apex court has held as under: “46. In order to analyze the issue, it becomes necessary to advert to the line of precedent through which the constitutional principle has emerged. In Prem Singh v. Haryana State Electricity Board, based on the advertisement dated 2 November 1991, the Board decided to fill up 62 vacant posts of Junior Engineer by direct recruitment, 15 posts were reserved for SC and ST candidates, 6 for Backward Classes and 9 for ex-servicemen. The Selection Committee selected 212 candidates and recommended the names. In Prem Singh v. Haryana State Electricity Board, based on the advertisement dated 2 November 1991, the Board decided to fill up 62 vacant posts of Junior Engineer by direct recruitment, 15 posts were reserved for SC and ST candidates, 6 for Backward Classes and 9 for ex-servicemen. The Selection Committee selected 212 candidates and recommended the names. The Board, considering the latest vacancy position as on 11 February 1993, decided to fill up 147 posts. Two questions fell for determination by this Court: 46.1 Whether it was open to the Board to prepare the list of 212 candidates and to appoint 137 out of that list when the number of posts advertised was only 62; and 46.2 Whether the appellant was justified in quashing the selection of all 212 candidates and appointments of 137 persons. 47. After adverting to the precedent on the subject18, Justice GT Nanavati speaking for Bench of two judges held: “25…the selection process by way of requisition and advertisement can be started for clear vacancies and also for anticipated vacancies but not for future vacancies. If the requisition and advertisement are for a certain number of posts only the State cannot make more appointments than the number of posts advertised, even though it might have prepared a select list of more candidates. The State can deviate from the advertisement and make appointments on posts falling vacant thereafter in exceptional circumstances only or in an emergent situation and that too by taking a policy decision in that behalf. Even when filling up of more posts than advertised is challenged the court may not, while exercising its extraordinary jurisdiction, invalidate the excess appointments and may mould the relief in such a manner as to strike a just balance between the interest of the State and the interest of persons seeking public employment. What relief should be granted in such cases would depend upon the facts and circumstances of each case.” (emphasis supplied) The Court held that since the selection process was initiated for 62 clear vacancies and, at that time anticipated vacancies were not taken into account, the Board was not justified in making more than 62 appointments. But the Board could have taken into account not only the actual vacancies but also vacancies which were likely to arise because of “retirement etc” by the time the selection process was completed. 48. But the Board could have taken into account not only the actual vacancies but also vacancies which were likely to arise because of “retirement etc” by the time the selection process was completed. 48. This Court held that it would not be equitable to invalidate all the appointments made Subhash Chander Sharma v. State of Haryana: (1984) 1 SLR 165 (P&H); Ashok Kumar Yadav v. State of Haryana: (1985) 5 SCC 417 : 1986 SCC (L&S) 88: 1985 Supp (1) SCR 657; A V Bhogeshwarudu v. A.P. Public Service Commission: JT (1989) 4 SC 130: (1990) 1 LLN 6 : (1989) 59 FLR 749 (SC); Hoshiar Singh v. State of Haryana: 1993 Supp (4) SCC 377:1994 SCC (L&S) 249: (1994) 26 ATC 325; State of Bihar v. Secretariat Asstt. Successful Examinees’ Union 1986: (1994) 1 SCC 126 : 1994 SCC (L&S) 274; Gujarat State Dy. Executive Engineers’ Assn. v. State of Gujarat: 1994 Supp (2) SCC 591: 1994 SCC (L&S) 1159 on posts in excess of 62. However, appointments which were made against future vacancies – in this case on newly created posts, would have to be held to be invalid. While moulding the relief, this Court observed that 13 posts had become vacant because of retirement and 12 posts because of deaths. The vacancies which were likely to arise as a result of retirement could have been reasonably anticipated and the Board had due to oversight not taken them into consideration while a requisition was made for filling up 62 posts. As regards the posts which fell vacant due to deaths, this Court taking what it described as a “lenient view” did not quash the appointments made against them. Hence, appointments made by the Board on posts beyond 87 (the original 62 posts for which selection was advertised and the 25 additional posts which fell vacant during selection process due to deaths and retirement) were invalidated. 49. The decision in Rakhi Ray which is by a Bench of three learned judges has been adverted to in a different context earlier. In that case, as we have noticed, the High Court had notified an advertisement to fill up 20 vacancies in the cadre of District Judge. All the 13 vacancies in the general category were filled up according to the merit list. In that case, as we have noticed, the High Court had notified an advertisement to fill up 20 vacancies in the cadre of District Judge. All the 13 vacancies in the general category were filled up according to the merit list. Unsuccessful candidates belonging to the general category however asserted that additional vacancies which came up during the pendency of the selection process should also be filled up from the same select list. In this context, while analyzing the constitutional requirements of Article 14 and Article 16, Dr Justice BS Chauhan, speaking for the three judge Bench, observed: “7. 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 from and such a deviation is permissible only after adopting policy decision based on some rationale”, otherwise the exercise would be arbitrary. Filling up of vacancies over the notified vacancies amounts to filling up of future vacancies and thus, is not permissible in law. (Vide Union of India v. Ishwar Singh Khatri [1992 Supp (3) SCC 84 : 1992 SCC (L&S) 999 : (1992) 21 ATC 851] , Gujarat State Dy. Executive Engineers' Assn. v. State of Gujarat[1994 Supp (2) SCC 591 : 1994 SCC (L&S) 1159 : (1994) 28 ATC 78] , State of Bihar v. Secretariat Asstt. Successful Examinees Union 1986 [ (1994) 1 SCC 126 : 1994 SCC (L&S) 274 : (1994) 26 ATC 500 : AIR 1994 SC 736 ] , Prem Singh v. Haryana SEB [ (1996) 4 SCC 319 : 1996 SCC (L&S) 934] and Ashok Kumar v. Banking Service Recruitment Board [ (1996) 1 SCC 283 : 1996 SCC (L&S) 298 : (1996) 32 ATC 235 : AIR 1996 SC 976 ] .)” (emphasis supplied) 50. In the view of the Court: “12. In the view of the Court: “12. In view of above, the law can be summarised to the effect that any appointment made beyond the number of vacancies advertised is without jurisdiction, being violative of Articles 14 and 16(1) of the Constitution of India, thus, a nullity, in-executable and unenforceable in law. In case the vacancies notified stand filled up, the process of selection comes to an end. Waiting list, etc. cannot be used as a reservoir, to fill up the vacancy which comes into existence after the issuance of notification/advertisement. The unexhausted select list/waiting list becomes meaningless and cannot be pressed in service any more.” (emphasis supplied) 51. In Bedanga Talukdar v. Saifudaullah Khan, another two judge Bench of this Court consisting of Justice Altamas Kabir and Justice SS Nijjar held: “29…In our opinion, it is too well settled to need any further reiteration that all appointments to public office have to be made in conformity with Article 14 of the Constitution of India. In other words, there must be no arbitrariness resulting from any undue favour being shown to any candidate. Therefore, the selection process has to be conducted strictly in accordance with the stipulated selection procedure. Consequently, when a particular schedule is mentioned in an advertisement, the same has to be scrupulously maintained. There cannot be any relaxation in the terms and conditions of the advertisement unless such a power is specifically reserved. Such a power could be reserved in the relevant statutory rules. Even if power of relaxation is provided in the rules, it must still be mentioned in the advertisement. In the absence of such power in the rules, it could still be provided in the advertisement. However, the power of relaxation, if exercised, has to be given due publicity. This would be necessary to ensure that those candidates who become eligible due to the relaxation, are afforded an equal opportunity to apply and compete. Relaxation of any condition in advertisement without due publication would be contrary to the mandate of equality contained in Articles 14 and 16 of the Constitution of India.” 52. The decision in Prem Singh has been followed by a Bench of two learned judges in Anurag Kumar Singh v. State of Uttarakhand. Relaxation of any condition in advertisement without due publication would be contrary to the mandate of equality contained in Articles 14 and 16 of the Constitution of India.” 52. The decision in Prem Singh has been followed by a Bench of two learned judges in Anurag Kumar Singh v. State of Uttarakhand. In that case, the Public Service Commission advertised 38 posts of Assistant Prosecuting Officers for a year (2011) 12 SCC 85 : (2016) 9 SCC 426 of recruitment comprising of 12 months commencing from first day of July of the calendar year. The Public Service Commission however, held a selection for 74 posts, 37 additional posts having been created subsequently. The High Court set aside the action, holding that the selection pursuant to an advertisement can only be for clear vacancies and anticipated vacancies, but not for future vacancies. Justice L Nageswara Rao, speaking for the Bench of two learned judges of this Court, observed that the rules referred only to the recruitment year. The Bench observed that “only the number of vacancies that are advertised can be filled up” and if the advertisement gives liberty to the Government to vary the number of posts this power could not be exercised for filling up future vacancies. The Court held that during the pendency of the proceedings a large number of persons would have become eligible for selection to the posts which were advertised and their right to be considered for appointment was guaranteed by Articles 14 and 16 of the Constitution. In the view of the Court, there would be an infraction of such a right if the additional posts are not filled up by a fresh selection. Hence the Court held that the selection pursuant to the advertisement should be confined only to the posts that were advertised and the additional posts which were created after the expiry of the recruitment year would have to be filled up by the issuance of an advertisement afresh. 53. A more recent decision in Rahul Dutta v. State of Bihar related to the post of Civil Judge (Junior Division). 53. A more recent decision in Rahul Dutta v. State of Bihar related to the post of Civil Judge (Junior Division). Rule 5(A)-(3) of the Bihar Civil Service (Judicial Branch) (Recruitment) Rules 1955 stipulated that: “5-A.(3) Eligible candidates for the written examination shall be selected on the basis of the result of the Preliminary Test, to the extent of 10% of the total number of appeared candidates, rounded off to the nearest hundred; and all candidates obtaining equal marks as the last candidate's shall also qualify for the written examination;” The Rule provided that only 10 per cent of the total number of candidates who appeared at the preliminary test were to be called for the written examination rounded off to the nearest hundred. The Court held that this stipulation in Rule 5A was contrary to the decision in Malik Mazhar Sultan (3). Moreover, the determination of 10 per cent of the total number of candidates who had appeared in the preliminary examination for being called for the final written examination was arbitrary and unreasonable, particularly, in view of the ratio of 1:10 prescribed in Malik Mazhar Sultan (3). The restriction of candidates to 10 per cent of those who had appeared at the preliminary test was held to curtail the competitive field unreasonably. 54. Having considered each of these judgments, we must notice that all of them involve factual situations which may not be identical with the facts of the present case. Precedent does not always rest on all fours. We have noticed earlier that, in (2019) 5 SCC 158 the present case, the High Court while issuing its advertisement for recruitment specified 37 as a ‘probable’ number of vacancies. The meaning which must be attributed to the expression ‘probable’ will be considered shortly hereafter. At this stage we must recapitulate some of the salient aspects of the decisions which we have cited above. In Prem Singh the advertisement which was issued by the Haryana State Electricity Board was for filling up 62 vacant posts of Junior Engineers while as many as 138 candidates came to be appointed. In this backdrop this Court held that it was not open to the Board to travel beyond clear and anticipated vacancies. In other words, while clear and anticipated vacancies could be taken into consideration while issuing an advertisement for commencing the selection process, future vacancies could not be considered. In this backdrop this Court held that it was not open to the Board to travel beyond clear and anticipated vacancies. In other words, while clear and anticipated vacancies could be taken into consideration while issuing an advertisement for commencing the selection process, future vacancies could not be considered. While moulding the relief, this Court maintained the selection for the 62 vacancies which were advertised and 25 additional vacancies which arose during the selection process due to promotions and deaths, but not beyond that. The decision in Rakhi Ray involved a situation whether the High Court had advertised 20 vacancies of District Judges of which 13 were in the general category all of which were filled up. This Court rejected the contention of those among the general category candidates whose position in the merit list was below the 13 selected candidates that they were entitled to selection on the basis of the vacancies which occurred during the pendency of the selection process, based on Malik Mazhar Sultan (3). This Court held that vacancies over and above those which were notified could not be filled up, save and except in a rare and exceptional situation. Absent an exceptional situation an exercise to fill up vacancies over and above those which were notified would be arbitrary. The decision in Anurag Kumar Singh involved a requisition by the State of Uttarakhand to the Public Service Commission for selection of 38 Assistant Prosecuting Officers. Despite the advertisement which was for filling up 38 posts, an additional 37 posts were sought to be filled up which had been created subsequently. This was held to be impermissible, as violating the guarantees of Articles 14 and 16. The decision in Rahul Dutta of two judges has held that restricting the field of a written examination to 10 per cent of the candidates who appeared at the preliminary examination is violative of the dictum in Malik Mazhar Sultan (3) besides being arbitrary on the ground that it unreasonably restricts the field of competition. 55. The constitutional principle which finds recognition in the precedents of this Court is that the process of selection in making appointments to public posts is subject to the guarantees of equality under Article 14 and of equality in matters of public employment under Article 16. The process of selection must comport with the principles of reasonableness. 55. The constitutional principle which finds recognition in the precedents of this Court is that the process of selection in making appointments to public posts is subject to the guarantees of equality under Article 14 and of equality in matters of public employment under Article 16. The process of selection must comport with the principles of reasonableness. Where the authority which makes a selection advertises a specific number of posts, the process of selection cannot ordinarily exceed the number of posts which have been advertised. While notifying a process for appointment, the authority may take into consideration the actual and anticipated vacancies but not future vacancies. Anticipated vacancies are the vacancies which can be reasonably contemplated to arise due to the normal exigencies of service such as promotion, resignation or death. Hence, in notifying a given number of posts for appointment, the public authority may legitimately take into account the number of vacancies which exist on the date of the notification and vacancies which can reasonably be accepted to arise in the exigencies of the service. While the exact number of posts which may fall vacant due to circumstances such as promotion, resignation or death may be difficult to precisely determine the authority may make a reasonable assessment of the expected number of vacancies on these grounds. However, future vacancies conceptually fall in a distinct class or category. Future vacancies which arise during a subsequent recruitment year cannot be treated as anticipated vacancies of a previous selection year. Vacancies which would arise outside the fold of the recruitment year would not fall within the ambit of anticipated vacancies. For it is only the vacancies, actual and anticipated which would fall within the course of the selection or recruitment year that can be notified when the selection process is initiated. These are constitutional principles to which statutory edicts are subordinate. 43. In the aforesaid judgment, Apex Court, after having taken note of earlier judgments in Malik Mazhar Sultan (supra), Reshma A. (supra), Virender S. Hooda v. State of Haryana, (1999)3 SCC 696 , Virender Singh Hooda v. State of Haryana, (2004) 12 SCC 588 , Prem Singh v. Haryana SEB, (1996) 4 SCC 319 , Malik Mazhar Sultan (3) v. U.P. Public Service Commission, ( 2008 17 SCC 703 , All India Judges Assn. (3) v. Union of India, (2002) 4 SCC 247 , reiterated that the selection process would comport with the principles of reasonableness and it shall not ordinarily exceed number of posts notified, which may take into consideration, the actual and anticipated vacancies but not the future vacancies. Future vacancies which arise during a subsequent recruitment year cannot be treated as anticipated vacancies of a previous selection year. Vacancies which would arise outside the fold of the recruitment year would not fall within the ambit of anticipated vacancies. Most importantly, in the aforesaid judgment, Apex Court has held that appointment made in excess of the notified vacancies is not consistent with the Art. 14 of the Constitution of India,. 44. True it is that the posts against Roster Points Nos. 55, 56 and 11 had fallen vacant in the year 2013 for the reasons stated above, but same could not be filled up without issuing a fresh advertisement because. in the absence thereof, petitioners and similar other persons aspiring for the posts, would be deprived of the right of participation in the competitive examination. Since, vide advertisement dated 1.2.2013 (Annexure P-2), three posts in the category of general unreserved (1 existing and 2 future vacancies) came to be advertised, only 09 candidates belonging to the category of general unreserved category were called for the interview, i.e. three candidates against one post, as a consequence of which petitioners namely Kuldeep Sharma and Devender Kumar, did not get a chance to participate in the interview. Though, petitioner Ashitosh Thakur, on account of her being amongst first 09 candidates was called for interview, but she being lower in merit, could not secure place in the list of selected candidates and thereafter in the Select List. Had petitioner Ashitosh Thakur been provided opportunity to participate in the interview on account of increase in number of posts, she may either have been selected or placed in Select List ahead of respondents Nos. 4 and 6. 45. Had 03 vacancies at Roster Points Nos. Had petitioner Ashitosh Thakur been provided opportunity to participate in the interview on account of increase in number of posts, she may either have been selected or placed in Select List ahead of respondents Nos. 4 and 6. 45. Had 03 vacancies at Roster Points Nos. 55, 56 and 11 been taken into consideration while issuing advertisement dated 1.2.2013, petitioners herein would definitely have got a chance to participate in the interview and may be thereafter, they would have been selected and if not, would have been placed in the Select List However, in the case at hand, respondents merely taking note of vacancies occurring in the year 2013, proceeded to appoint persons from the Select List, which action cannot be held to be justifiable in any manner because, issuance of appointment orders to the candidates on the basis of theirs being borne on the Select List, that too qua the vacancies which were never advertised, would result in appointing candidates on vacant posts, more than the advertised posts. 46. For the reasons stated herein above, action of respondents in filling up vacancies at Roster Points Nos. 55, 56 and 11 (unreserved) after conclusion of the Examination 2013, cannot be held to be legal, rather, such action of the respondents has not only resulted in infraction of rights of the petitioners to participate in the selection process for the vacancies, which arose during the year 2013, but were not advertised, but has also resulted into an anomalous situation, which if allowed to continue, would not only cause serious prejudice to the petitioners, but would also set a bad precedent. CWP’s Nos. 3319 and 4498 of 2014 47. Hence selection of respondents Nos. 4 and 6, Vivek Kaisth and Akanksha Dogra against Roster Points Nos. 55 and 56 is held illegal and quashed accordingly. Accordingly, CWP’s Nos. 3319 of 2014 and 4498 of 2014, are allowed to the extent aforesaid. CWP’s Nos. 1730 and 2120 of 2014 48. Since appointment of respondents Nos. 4 and 6 has been held to be illegal, petitioners namely Meenakshi and Parvez also have no case, because as per their own version persons namely Nishant Verma and Pratibha Negi secured more marks in the selection process than respondent No.4 Vivek Kaisth, as such they need to be considered against the posts of general category. Since appointment of Shri Vivek Kaisth and Ms. Since appointment of Shri Vivek Kaisth and Ms. Akanksha Dogra has been held to be illegal, claim of petitioners Meenakshi and Parvez does not survive, as far as their prayer to consider Nishant Verma and Ms. Pratibha Negi, against post of Shri Vivek Kaisth, respondent No.4, who admittedly had secured lesser marks than these two persons namely Nishantt Verma and Ms. Pratibha Negi, is concerned. Accordingly, CWP’s Nos. 1730 of 2014 and 2120 of 2014, are dismissed. 49. Learned counsel representing respondents No. 4 and 6 vehemently argued that since there was no fault if any, of their clients, inasmuch as their selection to the post in question is concerned, declaring their appointment to be illegal, after around seven years of their selection, would not only be harsh but stigmatic for them and as such, lenient view is required to be taken. They further submitted that otherwise also, it is not in dispute that respondents nos. 4 and 6 were in the merit list and as such, they were kept in Select List on the basis of their overall performance and as such, no prejudice would be caused to either of the parties, if they are allowed to continue on the post pursuant to offer of appointment made in their favour by respondents Nos. 1 to 3. Lastly, learned counsel for aforesaid respondents contended that otherwise also, petitioners herein were far behind respondents Nos. 4 and 6 in the merit list, as such, it cannot be said that the petitioners would have secured more marks than respondents Nos. 4 and 6, so as to enable them to secure appointment to the posts in question. Learned counsel for the aforesaid respondents also placed reliance upon following judgments: 1. Gujarat State Dy. XEN Assn. v. State of Gujarat, 1994 Supp(2) SCC 591 2. Buddhi Nath Chaudhary & Ors vs Abahi Kumar & Ors, (2001) 3 SCC 328 3. Pankjeshwar Sharma vs The State Of Jammu And Kashmir, (2021) 2 SCC 188 4. High Court of Kerala v. Reshma A., (2021) 3 SCC 755 50. Gujarat State Dy. XEN Assn. v. State of Gujarat, 1994 Supp(2) SCC 591 2. Buddhi Nath Chaudhary & Ors vs Abahi Kumar & Ors, (2001) 3 SCC 328 3. Pankjeshwar Sharma vs The State Of Jammu And Kashmir, (2021) 2 SCC 188 4. High Court of Kerala v. Reshma A., (2021) 3 SCC 755 50. Having carefully perused aforesaid judgments rendered by Hon'ble Apex Court, which have been otherwise taken note above this court finds that though in the aforesaid cases, selection of the petitioners therein was held to be not in accordance with law, but their selection was protected by Hon'ble Apex Court, while exercising power under Art. 142 of the Constitution of India, which power is firstly not available with this Court, and secondly, in the case at hand, there is active challenge to the selection of the respondents Nos. 4 and 6 by the petitioners herein, whose rights are equally important as that of the aforesaid respondents and, in case respondents Nos. 4 and 6 are allowed to continue on their posts, same would result in infringement of right of the petitioners to participate/being considered in the selection process for the posts in question, and while balancing equities, the party which is fighting for a just cause, its rights are to be protected and not of the party, which is beneficiary of an illegality committed by the selecting/appointing authorities. 51. Besides above, this court cannot lose sight of the fact that the case at hand pertains to appointment to the judicial posts and the persons selected against such posts, have to administer justice to the public at large and, if their own selection is the result of an unjust action, it would not only send a wrong message to the public at large, but would also destroy the faith of the public at large in this pious institution. CWP Nos. 5871 of 2014 and 2933 of 2016 52. So far CWP Nos. 5871 of 2014 and 2933 of 2016 are concerned, petitioners therein have made a claim that the vacancies which arose during 2014/2015, but not advertised in the respective years, ought to have been filled in from the Select List of 2013/2015. CWP Nos. 5871 of 2014 and 2933 of 2016 52. So far CWP Nos. 5871 of 2014 and 2933 of 2016 are concerned, petitioners therein have made a claim that the vacancies which arose during 2014/2015, but not advertised in the respective years, ought to have been filled in from the Select List of 2013/2015. This court does not see any necessity to go further into facts of these cases, in view of long discussion made herein above, wherein it has been held that the vacancy which is not advertised in a selection process and for which, participation of all the aspirants has not been ensured, cannot be filled in directly from the Select List, which in the consideration of this Court is only qua the posts, which were advertised and for which all the aspirants had got opportunity to compete. Thus the claim of the petitioners herein is dismissed, so also their writ petitions. 53. Before parting, this court wishes to observe that an anomalous situation has arisen only on account of non-application of mind on the part of the Commission, which on receipt of requisition for three more posts from respondent No.1, ought to have adopted selection process as per its Rules of Business and ought not have straightway recommended names of respondents Nos. 4 and 6 for appointment to the posts in question, especially when it was in its knowledge that these three posts had never been advertised and no selection process qua such posts had ever taken place. Since the Himachal Pradesh Public Service Commission is a specialist agency established only for the purpose of recruitment to the public posts under the State Government, it is expected to work in accordance with law, rules etc. Though there is nothing on record suggestive of the fact that any mala fides were behind the selection of respondents Nos. 4 and 6, but definitely, omission on the part of the Commission gives rise to apprehension that such procedure can become a handle in the hands of recruiting agency to favour one, to the detriment of another. Since this court is convinced that respondent No.2-Public Service Commission is solely responsible for this illegality in the appointment of respondents Nos. 4 and 6, a word of caution is put to said respondent to be careful in future in such matters. Since this court is convinced that respondent No.2-Public Service Commission is solely responsible for this illegality in the appointment of respondents Nos. 4 and 6, a word of caution is put to said respondent to be careful in future in such matters. Needless to say, vacancies so arising due to quashment of the appointments of respondents No. 4 and 6, namely Vivek Kaisth and Akanksha Dogra, shall be considered vacancies of the year 2021 and same shall be filled in accordingly, in accordance with law/Rules. The petitions stand disposed of in the afore terms. Pending applications, in all the petitions stand disposed of. Interim directions, if any, stand vacated.