ORDER

This appeal by special leave is directed against the judgment of the Division Bench of the High Court dated 7.4.1997 dismissing special appeal of the appellant thereby upholding the order of dismissal of a writ petition by a learned Single Judge of that Court dated 7.11.1996.

2. Respondent No. 1 advertised 113 vacancies for recruitment to the Rajasthan Judicial Service. The appellant applied for one of the posts in response to the said advertisement. In the written examination conducted by respondent No. 1 on 16th/17th October, 1994, for recruitment to the Rajasthan Judicial Service, the appellant appeared and was declared successful. Subsequently, the appellant was also issued an interview letter on 22nd April, 1995. He was required to appear for an interview on 17th May, 1995. Unfortunately, the appellant fell ill on 14th May, 1995 and was advised complete bed rest. He accordingly requested for postponement of the date of his interview vide a letter dated 14th May, 1995. He sent medical certificate in support of the letter for postponement of his interview. Deputy Secretary to Rajasthan Public Service Commission thereupon postponed the date of interview from 17th May to 22nd May, 1995. The appellant, however, continued to remain ill and was unable to attend the interview on 22nd May, 1995 also. He sent another application to respondent No. 1, supported by a medical certificate, with the request that since he was unable to attend the interview on 22nd May, 1995, another date of interview may be fixed. That application was turned down by respondent No. 1 and subsequently results were declared. The appellant, thereupon, filed a writ petition in the High Court.

3. According to the appellant, he had secured enough marks, more than some of the selected candidates, in the written examination and even if his marks in the interview considered to be zero, he was still entitled to be selected on the basis of his aggregate marks. The learned Single Judge, after considering the provisions of the Rajasthan Judicial Service Rules, 1955, read with Schedule 3 to the Rules opined that viva voce test was one of the necessary parts of the selection process and since the appellant had not taken part in the viva voce test, it could not be said that he had been wrongly excluded from selection. The plea of the appellant, that since there was no minimum percentage of marks prescribed for viva voce test, an absentee at the time of interview was entitled to be considered in the position of a candidate who had appeared at the interview but failed to secure any marks, was also rejected. Aggrieved by the dismissal of his writ petition, the appellant filed D.B. Special Appeal. The Division Bench of the High Court held that viva voce test was an integral part of the selection process as it was at the time of interview that suitability of the candidate could be adjudged by an interview board and since the appellant had failed to avail of the opportunity to appear for the interview, he had not taken part in the complete selection process and, therefore, the order of the learned Single Judge did not suffer from any infirmity and consequently, the appeal was dismissed. The appellant, thereupon, approached this Court.

4. On 7th November, 1997, leave was granted in the SLP filed by the appellant. In an application seeking directions, this court on 1.2.1999 directed as follows :

"Heard learned counsel for the parties.

In case there are any vacancies in respect of 1994-95, one of the posts may be kept vacant out of those vancancies during the pendency of the present appeal."

5. During the course of arguments on 16th January, 2001, learned counsel for the appellant drew our attention to a communication dated 17th September, 1999 received by him from the Senior Legal Remembrancer, Govt. of Rajasthan, in which the factum of keeping one post still vacant (in respect of vacancies of 1994-1995) was mentioned. Learned counsel for the respondent was granted time to seek i