WP(C) 3118/2009 BEFORE HON’BLE MR. JUSTICE AMITAVA ROY HON’BLE MR. JUSTICE C.R. SARMA The petitioner, one of the contenders for the Grade III post in the Manipur Judi cial Service (for short hereafter referred to as the Service) and a participant in the process related thereto initiated by the advertisement/notification dated 1/3/2007, seeks judicial intervention for a writ of mandamus for his appointmen t. 2. We have heard Mr. N. K. Singh, learned Sr. Counsel for the petit ioner and Mr. U. Bhuyan, learned Standing Counsel, Gauhati High Court. 3. The pleaded version of the petitioner is that, he responded to t he aforementioned advertisement issued by the Registrar of the High Court, Impha l Bench, and took the written test as scheduled. He also appeared in the viva vo ce test. Subsequent thereto the select list of the candidates for recruitment in order of merit was published vide notification dated 4/9/2008 in which his name appeared at Sl. No. 1 in the additional/waiting list of the general category ca ndidates. 4. By a later notification dated 3/12/2008, a select list of 12 can didates was published which as the same reveals, was in pursuance of the provisi on of Schedule BB(D) 11(b) of the Manipur Judicial Service (Third Amendment) Rul es, 2008 as well as the order dated 4/1/2007 passed by the Hon’ble Supreme Court in Civil Appeal No. 1867 of 2006 (Malik Mazhar Sultan and another versus U.P. P ublic Service Commission and others). In the same list, his name appeared at Sl. No. 5 in the general category. In terms of the selection so made, the candidate s at Sl. No. 1 to 4 were thereafter appointed against the general quota of posts and those at Sl. No. 10 and 11 against posts reserved for Scheduled Tribe candi dates. 5. According to the petitioner, in terms of the above order of the Hon’ble Apex Court as well as the Manipur Judicial Service Rules, 2005 (as amend ed) (for short hereafter referred to as the Rules), it was obligatory on the par t of the High Court to ear mark 10% of the sanctioned strength/sanctioned posts of Grade-III of the Service to be filled up from the additional/waiting list. Po inting out that the sanctioned strength/sanctioned posts of Grade-III of the Ser vice is 12 and that 10% thereof when rounded off would sum up to one, the petiti oner has pleaded that having regard to his position in the additional list/waiti ng list, he ought to have been appointed against the said post in addition to th e six posts advertised and filled up. The petitioner has averred that with the p romotion of one Mrs. Kimneinieng Shoute to Grade-II post in the Service on 15/5/ 2009, a vacancy in Grade-III had arisen within the life span of the select list dated 3/12/2008 and on that count as well, he ought to have been appointed again st the same. The decision of the High Court in rejecting his representation vent ilating his grievances in the above lines and seeking appointment has also been impugned. 6. The High Court in its affidavit affirmed by its Registrar Genera l while admitting the issuance of the advertisement dated 1/3/2007 for filling u p six posts in Grade-III of the Service (four for general category and two for s cheduled tribe) has asserted that the process was conducted in stringent complia nce of the provisions of the Rules and a select list of the candidates recommend ed for appointment was published on 4/9/2008 whereafter on the basis of the meri t position of the candidates they were appointed. The select list dated 4/9/2008 thus got exhausted with such appointments. According to the answering responden t, the order dated 4/1/2007 passed by the Hon’ble Supreme Court stood modified s ubsequent thereto on 24/3/2009 and that therefore the petitioner’s contention ba sed on the formal order was untenable. The fact that another select list dated 3 /12/2008 containing the names of 12 candidates had been published, however, has not been denied. It has however been averred that the vacancy resulting from the promotion of Mrs. Kimneinieng Shoute to a Grade-II post in the Service could no t be said to be an anticipated vacancy at the time of issuance of the advertisem ent on 1/3/2007 and that therefore the petitioner in view of his inclusion in th e additional list/waiting list has no vested right to claim appointment against the same. The respondents have further contended that in terms of the roster pre valent in the State of Manipur, the vacancy created by the promotion of Mrs. Kim neinieng Shoute who belonged to a scheduled tribe category is to be filled up by a candidate of the same category and as the petitioner is admittedly a general category candidate, he can by no means be considered for appointment to the said post. That mere empanelment of the petitioner in the select list does not entit le him to appointment and that his representation had been validly rejected has also been asserted. 7. In his affidavit in reply, the petitioner has contended against expiry of the select list on the appointments made from the one dated 4/9/2008. Referring to the order dated 4/1/2007 of the Hon’ble Supreme Court, he has insis ted that the select list dated 3/12/2008 subsisted till another was drawn up on the culmination of a fresh selection. According to him, in addition to the vacan cy resulting from the promotion of Mrs. Kimneinieng Shoute, two more vacancies i n Grade-III also occurred due to the regularisation of the adhoc promotion to Gr ade-II of (i) Shri N. Rajnikanta (General/Unreserved) and (ii) Smt. G. Gaiphulsh ilu Kabui (S.T./Reserved) vide notification dated 15/5/2009 following the recomm endation of the Full Court on 6/2/2009 and that too within the life span of the select list dated 3/12/2008. 8. Mr. Singh has argued with reference to Rule 10(VI) of the Rules that having regard to the date of the select lists i.e. 4/9/2008 and 3/12/2008 a nd the petitioner’s position therein, the denial of his appointment on the basis of his selection has not only been illegal and arbitrary but also in disregard of the letter and spirit of the directions contained in the order dated 4/1/2007 of the Hon’ble Apex Court. The learned Sr. Counsel has disputed the plea that t he vacancy resulting from the promotion of Mrs. Kimneinieng Shoute ought to be f illed up by a reserved category candidate in terms of the roster in vogue. In th e alternative, he has urged that even otherwise as two more vacancies arose due to the promotion of Shri N. Rajnikanta and Smt. G. Gaiphulshilu Kabui on 15/5/20 09, the petitioner ought to have been appointed against any one of those. This i s more particularly as the three vacancies that had occurred within the life spa n of the select list dated 4/8/2008/3/12/2008. As the petitioner has been denied appointment without any conceivable reason recognised in law, a writ of mandamu s to that effect ought to be issued, he urged. 9. Mr. Bhuiyan as against this has argued that the two vacancies re sulting from the promotion of Shri N. Rajnikanta and Smt. G. Gaiphulshilu Kabui had been duly advertised and were included within the six posts referred to in t he notification dated 1/3/2007. On instructions, he has reaffirmed that the vaca ncy occurring due to the promotion of Mrs. Kimneinieng Shoute in terms of the ro ster applicable is to be filled up by a reserved category candidate and that the refore by no means the petitioner can be accommodated against the same. He has a dded that on the date of the advertisement the vacancies resultant on the promot ion of Mrs. Kimneinieng Shoute was not in contemplation and was thus not notifie d. According to Mr. Bhuyan, the Hon’ble Apex Court, having modified its order da ted 4/1/2007 vis-à-vis the requirement of notification of future vacancies that may arise due to promotion, death or otherwise, at this distant point of time, t he advertised vacancies having been duly filled up on the basis of the select li st dated 4/9/2008/3/12/2008, the petitioner’s claim is wholly misconceived. The select list(s) vis-à-vis the notified vacancies having been exhausted following the appointments made therefrom, it is impermissible to draft in the petitioner as claimed. To reinforce his arguments, Mr. Bhuyan has placed reliance on the de cision of the Apex Court in Madanlal and others versus State of Jammu and Kashmi r and others, (1995) 3 SCC 486. 10. We have extended our cautious consideration to the pleadings on record and the arguments advanced. Admittedly the advertisement dated 1/3/2007 w as issued after the order dated 4/1/2007 of the Hon’ble Apex Court. It did not i nclude any vacancy as envisaged in Clause 1(c) for the cadre of Civil Judge (Jun ior Division) by direct recruitment. In other words, future vacancies likely to arise due to promotion, death or otherwise approximated at 10% of the sanctioned posts in Grade-III of the Service were not notified thereby. As the cadre stren gth of Grade-III in the Munipur Judicial Service at the relevant time was 12, in terms of the order dated 4/1/2007, 10% thereof i.e. 1 (rounded off) ought to ha ve been included in the advertisement dated 1/3/2007 and integrated in the selec tion process initiated thereby. This admittedly was not done and the select list of the recommended candidates for the six advertised vacancies in order of meri t was published on 4/9/2008. Neither the advertisement nor this select list is u nder challenge in the instant proceeding. 11. Following the amendment of the Rules vide notification No. 18/94 /2008(MJS)/DP(B) dated 16/8/2008 amongst others Schedule BB was added thereto re quiring notification of the said category of future vacancies in the matter of a ppointment to Grade-III of the Service by direct recruitments. It was thereafter that on 3/12/2008 vide a notification of the even date, a select list of 12 can didates was published in conformity with Schedule BB of the Manipur Judicial Ser vice (Third Amendment) Rules, 2008 and the order dated 4/1/2007 of the Apex Cour t. In the said list, the name of the petitioner appeared at Sl. No. 5 as a gener al category candidate. In the meantime, in terms of the select list dated 4/9/20 08, the candidates at Sl. No. 1 to 4 and 10 and 11 had already been appointed ag ainst the six notified vacancies. Whereas the selectees at Sl. No. 1 to 4 were a djusted against general category seats those at Sl. No. 10 and 11 were recruited against seats reserved for Scheduled Tribe candidates. Incidentally by the orde r dated 4/1/2007, the Hon’ble Apex Court had directed that the select list shoul d be published in order of merit and ought to be double the number of vacancies notified and that the select list so prepared would be valid till the next one w as published. The notification dated 3/12/2008 indicated that the number of vaca ncies was for all purposes being construed to be six. 12. While the matter rested at that, by order dated 24/3/2009 passed in Civil Appeal No. 1867/2006 (Malik Mazhar Sultan and another versus U.P. Publ ic Service Commission and others), the Hon’ble Apex Court amongst others clarifi ed in supercession of its earlier order dated 4/1/2007 that in future the High C ourts/Public Sector Commissions would notify only the existing number vacancies as well as the anticipated number of vacancies for the next one year. Their Lord ships therefore thereby obviated the requirement of notification of future vacan cies likely to arise due to promotion, death or otherwise. 13. The materials on record reveal that a vacancy did arise on 15/5/ 2009 in Grade-III of the Service due to the promotion of Mrs. Kimneinieng Shoute to Grade-II post in the Service. Though on the very same date the adhoc promoti on of Shri N. Rajnikanta and Smt. G. Gaiphulshilu Kabui to Grade-II of the Servi ce was regularised, the same did not entail resultant vacancies in Grade-III. As a matter of fact, these two vacancies nomenclatured as adhoc vacancies had be en notified in the advertisement dated 1/3/2007. It was thereafter that the inst ant proceeding has been instituted by the petitioner seeking a direction for his appointment in Grade-III of the Service. 14. Though it has been persuasively contended that the select list d ated 4/9/2008/3/12/2008 in terms of the order dated 4/1/2007 of the Apex Court i s to subsist till a succeeding one is published, we are of the view that even if such a plea is accepted it does not enure to the benefit petitioner. As it is, on an analysis of the calendar of dates drawn by the Apex Court by its order dat ed 4/1/2007, the life of a select list as contemplated thereby has to be one yea r. Their Lordships having designed the scheme of the process of selection to be undertaken, it was intended to be complied with and, therefore, the petitioner’s plea of an extended term of the said list select list dated 4/9/2008/3/12/2008 for the purpose of his appointment against vacancies beyond those advertised lac ks persuasion. Though in terms of the order dated 4/1/2007 one future vacancy li kely to arise due to promotion, death or otherwise ought to have been advertised , at this distant point of time, in the teeth of the order dated 24/3/2009, we a re not inclined to lend our concurrence to the petitioner’s assertion to this ef fect for his accommodation in the service against any vacancy arising after the completion of the process of appointment. Their Lordships of the Apex Court havi ng in clear terms vacated the precept for the notification of such future vacanc ies, this plea, if accepted, would lead to avoidable anomalies and complications at this stage. Besides having regard to the tone and tenor of the order dated 2 4/3/2009, in our estimate, the petitioner is not entitled in law as well at the present for a direction for his recruitment to any such future vacancy in the Gr ade-III of the Service. 15. Reverting to the vacancy that had occurred due to promotion of M rs. Kimneinieng Shoute to Grade-II post in the service, though the parties are a t issue as to whether the same in terms of the roster prevalent is liable to be filled up by a scheduled tribe candidate in absence of overwhelming materials to the contrary, the stand of the respondents in this regard cannot be lightly rep udiated. The petitioner thus being a general category candidate, on this conside ration as well cannot lay his claim apart from other impediments alluded hereina bove against the said vacancy. In addition thereto as a selectee, he has no unas sailable right even otherwise to claim appointment merely for his empanelment in the list dated 3/12/2008 as has been reiterated by the Apex Court in Madan Lal and others, supra. In the wake of the above, the petition lacks in merit and is dismissed. No costs .