(1) DELAY condoned.

(2) LEAVE granted.

(3) HEARD counsel for the parties. The appellant was initially appointed as a Typist on 7/11/1974, and was regularised on 13/12/1976; and having become eligible for promotion as a Junior Section Grade Head Typist, he was promoted 9 with effect from 7/11/1981. For promotion as a Senior Selection Grade Head Typist, rules require him to put in 5 years of service to become eligible for promotion. When his turn came as a reserved candidate (Scheduled Caste), he was considered by the Promotion Committee and was promoted on 13/1/1987. The respondent, a general candidate, though initially appointed as a Typist on 19-11-1960 and regularised on 12/2/1968 and was confirmed on 1/1/1969, claimed promotion in his own right as a general candidate. When he approached the tribunal on the first instance, a statement appears to have been made on behalf of the State that his case will be considered according to rules. On that basis the tribunal disposed of the case. Thereafter when the appellant was promoted without considering the case of the respondent, he filed CWJC No. 5756 of 1991 in the High court of Patna and by judgment dated 13/11/1992 the Division bench set aside the appointment of the appellant and directed to consider the case of Mukh Ram Dubey, contesting respondent, for appointment as Senior Selection Grade Head Typist with the following directions:

"ANNEXURE 10 is hereby quashed with a further direction to the respondents to consider the case of eligible candidates for promotion to the post of Senior Selection Grade Head Typist within a period of four months from today."

Calling that direction in question this appeal by special leave has been filed.

(4) THE government in the counter-affidavit in this court in para 3 stated that the vacancy was reserved for Scheduled Castes. The appellant being a Scheduled Caste candidate, having fulfilled all the criteria for promotion, the Departmental Promotion Committee constituted in this behalf considered the case of the appellant and promoted him. Shri Pramod Swarup, learned counsel for Mr Dubey, has stated that in the roster the vacancy on No. 3 is for general candidate and No. 2 vacancy is reserved for the Scheduled Castes. Since it was not filled up for three successive years, it must be deemed that the vacancy has been dereserved and thrown open to the respondent and other general candidates who alone should be considered for promotion. We find that there is no force in the contention. In the government Resolution dated 30/6/1983 it was stated thus:

"RESERVATION is governments policy and deservation is not included in it. Dereservation is an exception for which Chief Ministers approval through the Reservation Commissioner of the Cabinet Secretariat, is essential. In anticipation of the order of the Chief Minister the reserved post could not be dereserved."

In another resolution of government of Bihar dated 21/11/1990, it was stated that in Ss. 4(a) in the first instance the general category candidates will be given time-bound promotion on only these unreserved vacancies which are for the general category candidates according to the approved roster. In any event the general category candidates will not be promoted against a reserved vacancy, even if in the first instance a reserved category candidate is not available. In Ss. 4(b), in the second transaction for filling the reserved vacancy which could not have been filled in the first transaction, only reserved category candidates will be considered.

(5) IN view of the aforestated resolutions, it is clear that the general candidates will not be considered for promotion to the post for SC, ST or BC reserved candidates. The reserved candidates even if they are not available, it is settled law that unless dereservation is done the vacancy will not be thrown open to the general category. It is not incumbent upon the government as soon as the vacancy arises that it