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(20) Dealing first with the contentions' of the three petitioners whose picas and contentions are identical, we may notice that in the opening arguments these petitioners contended that the Division Bench judgment and orders are correct insofar as the same directs appointments as Adj of candidates already on(r)select panel against future vacancies but the Bench went wrong in directing that Respondents 7, 8 and 9 be appointed as these respondents were on select panel of the year 1988 whereas the petitioners were on select panel of 1987 and in this view the Bench should have directed the appointments of the petitioners against future vacancies and not of 1988 penalists. It was,therefore, submitted that the part of the judgment and orders of the Division Bench that directs appointments of Respondents 7, 8, and 9 is liable to be set aside and quashed and directions should be issued for the appointment of the petitioners. Later, however, while replying to the arguments of the respondents, the petitioners changed their stand. Now it was contended that the Division Bench after holding that there was no illegality in the reservation or Rule 22 or in the Memorandum dated 25th April 1989, should have dismissed Writ Petitions No. 613 and 2590/90 and the Bench grossly erred in directing appointment of Respondents 7 to 9 against future vacancies thus depriving the petitioners and other advocates for applying and for being considered for appointment against the said future vacancies. It was contended that the Division Bench wrongly applied the Supreme Court decision in Prem Parkash's case as the said decision was applicable only when a candidate is selected against a declared vacancy and Respondents 7 to 9 had not been selected against the declared vacancies having been selected against reserved vacancies subject to dereservation which was not permitted by the Government and decision of the Government was upheld by the Division Bench. In the nutshell they have confined their prayer to setting aside of the judgment and orders of the Division Bench and consequently the appointments of Respondents 7, 8 and 9 as ADJ's. It was contended that on the said appointments being set aside, the three vacancies should be directed to be advertised in accordance with the Rules so that everyone eligible would get an opportunity to be considered for appointment against those vacancies.

(35) We would now consider the contention of Mr. Sanjay Kaul and Mr. Malkhan Singh seeking appointment as ADJ's relying upon (i) office memorandum dated 8th February 1982 of the Government of India; (ii) Prem Parkash's judgment and (iii) the judgment of the Division Bench in Bhasin's case.

(36) The office memorandum dated 8th February 1982 is Annexure P.4 to the writ petition of Malkhan Singh. The said memorandum has also been reproduced in the decision of the Supreme Court in Prem Parkash's case. A perusal of the said memorandum shows that it is applicable in a case where a person is declared successful according to merit list of selected candidates which is based on the declared number of vacancies. The responsibility vests on the appointing authority to appoint such a person even if number of vacancies undergo a change after his name has been included in the list of selected candidates. It is thus evident that if a candidate has not been selected against the declared number of vacancies no right flows to him on the basis of the aforesaid Memorandum. Mr. Malkhan Singh had applied against one post reserved for scheduled caste. For that post Mr. Padam Singh was selected, recommended and ultimately appointed. Likewise, the declared number of vacancies when Mr. Sanjay Kaul applied were four which were reserved for scheduled castes and scheduled tribes It was notified in the advertisement that these vacancies shall be filled from general category candidates in the event of suitable candidates from reserved category were not available. Only one candidate Mr. L.D. Maul belonging to scheduled castes community was found suitable. No other candidate from reserve category was found suitable. The High Court, however, prepared a panel of six candidates of general category. The name of Respondent Nos. 9, 7 and 8 were at Serial No. 1,2 and 3 respectively in the panel prepared in 1988. Mr. Sanjay Kaul was at serial No. 6 on the panel. There were also other advocates at Serial No.4 and 5 of that panel. Against the four declared number of vacancies, one from scheduled caste community and three from general category were selected. Mr. Kaul cannot claim right to the appointment against a future vacancy. In case the contention that the entire panel is to be exhausted irrespective of the number of vacancies which may have been notified for selection is accepted, it may lead to continuing the panel in perpetuity which would be arbitrary and would infringe Article 14 and 16 of the Constitution thereby depriving other eligible candidates for being considered for public employment. In this regard we may also notice a recent decision of the Supreme Court in the case of Gujarat State Deputy Executive Engineers' Association Vs. The State of Gujarat & Ors. . The Apex Court has held that a candidate from the waiting list has no . right to claim appointment to any future vacancy which may arise unless the selection was held for it. The effect of making appointments of candidates from the waiting list on candidates who become eligible for competing for vacancies available in future, was expressed by Supreme Court in the following words - "Awaiting list prepared .in an examination conducted by the Commission does not furnish a source of recruitment. It is operative only for the contingency that if any of the selected candidates does not join then the person from the waiting list may be pushed up and be appointed in the vacancy so caused or if there is some extreme exigency the Government may as a matter of policy decision pick up persons in order of merit from the waiting list. But the view taken by the High Court that since the vacancies have not been worked out properly, therefore, the candidates from the waiting list were liable to be appointed does not appear to be sound. This practice, may result in depriving those candidates who become eligible for competing for the vacancies available in future. If the waiting list in one examination was to operate as an infinite stock for appointments, there is a danger that the State Govern- ment may resort to the device of not holding an examination for years together and pick up candidates from the waiting list as arid when required. The constitutional discipline requires that this Court should not permit such improper exercise of power which may result in creating a vested interest and perpetrate waiting list for the candidates of one examination at the cost of entire set of fresh candidates either from the open'or even from service."

(38) The decision of the Division Bench in Bhasin's case directing adjustment against future vacancies results in depriving other eligible candidates for being considered for the said vacancies. In our view the ratio of Prem Prakash's case was not correctly applied by the Division Bench. We may also notice that the Division Bench after rightly noticing in Para 89 of the aforesaid report that the principle laid down in Prem Prakash's case will not be attracted seems to have erred in the later portion of the judgment (Para 106) in directing on strength of Prem Parkash's case that candidates once selector and empanelled must be accommodated in future vacancy which came into existence during the pendency of the writ petition. There are reasons for preparing larger panel than the number of vacancies. It is possible that a recommended candidate may not come forth to join the Service or even after selection and recommendation there may be hurdles in his appointment like medical clearance etc. In order to avoid delay in the recruitment, a larger panel is prepared so that person next on the panel can be recommended for appointment. This, however, would not mean that in case the number of selected and recommended candidates to the extent of the existing vacancies join, the other candidates on panel are required to be adjusted against future vacancies. As held hereinbefore, this would lead to continuing the panel in perpetuity which is neither permissible in law nor in the interest of the Service.

(40) In view of the aforesaid legal position and the fact that Mr. Sanjay Kaul and Mr. Malkhan Singh were not on the select panel against the declared vacancies, their reliance on 1982 office memorandum and on decision in Prem. Prakash case is misplaced.

(41) For the aforesaid reasons, in our view, Bhasin's case has not been correctly decided in so far as it implies right to appointment against future vacancies and enforcement of that right by issue of mandamus and,therefore, to that extent we overrule the said decision. We hold that the question of consideration of a candidate on select panel for being recommended would arise only when the candidate has been selected against the 'declared vacancy or in case of some extreme urgency and a candidate on the select list will have no right to be considered for recommendation for appointment as Adj against a future vacancy. We, therefore, conclude that Mr. Sanjay Kaul, Mr. Malkhan Singh and none of other petitioners have any right to be considered for appointment as ADJ's against future vacancies and seek issue of mandamus.