D.S. Tewatia, J. - (1.) Petitioner Narsingh Dass Achint appeared at the competitive test held in 1983-84 for selection to the Haryana Civil Service (Judicial Branch) as a candidate belonging to the reserved category of backward classes. The Haryana Public Service Commission recommended 26 candidates for appointment, out of which three belonged to the category of backward classes. Miss Neelam Shangla, one of the candidate from the general category, challenged, through Civil Writ Petition No. 3252 of 1985, which was finally admitted after notice on 17-10-1984, the action of the Haryana Public Service Commission in recommending only 17 names of the general category candidates and the consequent appointment by the State Government only of those candidates. During the pendency of that writ petition, a request was made that the Haryana Public Service Commission be directed to issue a Government notification in accordance with the rules disclosing therein the name of the candidates who had qualified for being recommended to be appointed by the State Government. This Court on 24-9-1984 directed the Haryana Public Service Commission to do so and as a result thereof the Haryana Public Service Commission published the names of 54 qualified candidates on 5-10-1984, annexure P.7 to the present writ petition. The petitioner's name in that list figured at Serial No. 4 in the category of backward class candidates. The petitioner, through Civil Misc. 2939 of 1986 dated 4-10-1986, had sought to file an amended writ petition. The amendment sought was of paras 6, 12(f) and prayer clauses (iii) and (iv) of para 15 as follows: 6. This Honourable High Court, vide its letter No. 12432/Gaz. 11 (3) 4 B 24 dated 27-4-1984 sent (he requisition of 52 posts in H.C.S. (J) Branch in reply to the letter dated 9-4-1984 of respondent No. 1 and respondent No. 2 declared the following number of candidates as having qualified H.C.S (J) Branch examination 1983-84 as under : JUDGEMENT_58_LAWS(P&H)11_1986_1.html alongwith 2 ex-servicemen and four candidates of Scheduled caste. The notification dated 5-10-1984 vide which the above mentioned result was declared was published on the direction of this Honourable Court is attached herewith as annexure P.7. that as per rule 10 of the H.C.S. (J.B) 1951 read with executive instructions dated 18-9-1979 regarding percentage of reservation, the backward classes candidates arc entitled to be selected for the extent of 10% out of total existing vacancies, i.e. 52. Hence respondent Nos. 1 and 2 were bound to recommend and select all the four candidates from Backward classes category including the petitioner. Hence, the action of respondent 2 in recommending the impugned selection list i.e. annexure P.3 only of the 26 qualified candidates to respondent No. 1 and the action of respondent No. 1 in not selecting the petitioner against the reserved post for Backward Class is violative of Rules 8, 9 and 10 of the said Act 1951. 12(f) Whether the action of respondent Nos. 1 and 2 in not selecting the petitioner is violative of rules 8, 9 and 10 of the H.C.S. (Judicial Branch) Rules, 1951. Prayer Clauses: (iii) Writ of mandamus be issued directing respondent No. 1 to include the name of the petitioner in the selection list of the 1984 batch with all the benefits accruing therefrom towards seniority and back salary etc. (iv) It is further prayed that during the pendency of this petition respondents Nos. 1 and 2 be directed to keep one post of backward class reserve for the petitioner. as the aforesaid plea was not available to the petitioner at the time of filing of the writ petition, and the same became known to the petitioner after the written statement was filed by respondent No. 1 and some facts even after that. The said amendment was allowed by this Court after notice vide order dated 20.10.1986. The petitioner has claimed that the petition be allowed in the same terms as was done by their Lordships of the Supreme Court in the case of Miss Neelma Shangla Vs. State of Haryana and others, 1986 (4) S.C.C. 268. On behalf of the respondent State, it has been canvassed that the petitioner is not entitled to any relief. It is pointed out that 10 per cent quota of the backward classes category stands already exhausted as a result of the appointment of three candidates and the petitioner being at Serial No. 4 in the merit list of the said category, he is not entitled to any relief; whereas the stand taken on behalf of the petitioner is that the 10 per cent quota has to be calculated on the basis of the vacancies which were required to be filled up and not on the basis of the appointments actually to be effected of the candidates belonging to the general category. In support of his submission, he placed reliance on the following observations of their Lordships made in Prem Parkash Vs. Union of India and others, 1985 (2) S.L.R. 757. "The error from which the calculation of the High Court suffers is that the number of vacancies available for the Scheduled Caste candidates was fixed by it according to the number of candidates who qualified for the general seats. The counter-affidavit states expressly that the availability of vacancies for candidates of the reserved category was determined on the basis that only 7 candidates had qualified for the general seats. This according to us, is neither justified by the Rules and administrative instructions nor indeed does such a method of fixation of reserved vacancies disclose any acceptable basis. 16 vacancies were advertised in the first instance, out of which, 11 were for general candidates and 5 for reserved categories. It may be assumed that the Administration is not bound to fill all the vacancies which are advertised and indeed, if the number of candidates who qualify in competitive examination is less than the number of vacancies which are advertised, it is obvious that the vacancies which can be filled will be less than the vacancies which are advertised. But the availability of vacancies for the reserved categories cannot be made to depend upon the accidental circumstances of how many candidates have qualified for general scats. In the first place, that would be contrary to the instructions contained in paragraphs 4.2 and 9.2 of the Brochure of 1978. Secondly, such a method will lead to the absurd and undesirable consequence that no candidate of the reserved category will be appointed at all, if only one or two candidates from the general category qualify in the examination. The correct approach is to fix the number of vacancies available for the reserved candidates on the basis of the total number of vacancies which are intended to be filled at any particular point of time. According to paragraph 2.1 the Brochure, 15% of the total vacancies arc required to be reserved for the Scheduled Caste candidates and 71/2% for the Scheduled Tribe candidates. Therefore, the High Court could not have fixed the number of vacancies available to the reserved candidates on the basis that only 7 persons had qualified for the general seats. If a decision was taken to fill 10 or 11 posts only, the number of reserved vacancies should have been fixed upon that basis and not on the basis that only 7 candidates had qualified for the general seats. The High Court should have corrected its error in the case of the two Scheduled Caste candidates who had qualified in 1979." Learned counsel for the petitioner on the strength of the ratio in Miss Neelma Sangla's case (supra) contended that so long as the qualified candidates were available, the Government was bound to fill up all the 52 vacant posts, unless it was to decide to fill up lesser number of posts by adopting some rational criteria in that regard and that since their Lordships had in their judgment observed that : "As a result of our finding a few more candidates would also be entitled to be included in the Select list and ordinarily we would have directed their inclusion in the list. But having regard to the fact that most of the others have not chosen to question the selection and the circumstance that two years have elapsed we do not propose to make any such general order as that would completely upset the subsequent selection and create confusion and multiplicity of problems. The cases of any other candidate who may have already filed a writ petition in this Court or the High Court will be disposed of in the light of this judgment. . ." So the petitioner's right to be recommended for appointment has to be examined on the assumption that there were 52 existing vacancies which were to be filled up if qualified candidates were available. The petitioner's appointment, contends the learned counsel for the petitioner cannot be denied by the respondents on the ground that since lesser number of candidates from the general category we're being appointed, so the quota of backward classes category would not be filled up even though qualified persons were available in that category. In our opinion, there is merit in the contention advanced on behalf of the petitioner. The petitioner is duly qualified The number of posts available in his quota, admittedly, comes to 5, on the basis of the 52 vacancies that were required to be filled up, as observed by their Lordships in Miss Neelma Shangla's case (supra). In view of the above, we dispose of the petition with the direction that the petitioner be appointed in the same terms as ordered by their Lordships in Miss Neelma Shangla's case, (supra). There would, however, be no order as to costs Appeal allowed.;