P.N. Bhagwati and; R.S. Pathak, JJ.
1. Leave granted.
2. It was not disputed before us that there is a vacancy reserved for Scheduled Caste candidate in the post of District Judge. But the main argument which prevailed in the High Court in rejecting the writ petition of the appellant was that she was not within the first 14 candidates selected by the High Court and recommended to the State Government for appointment. However it cannot be disputed that if the appellant was a candidate belonging to Scheduled Caste, she would have been entitled to be considered for appointment to fill up the vacancy reserved for Scheduled Caste because she was admittedly first amongst Scheduled Caste candidates and merely because she was not in the first 14 candidates selected for appointment would be no ground for rejecting her claim to be considered for appointment.
3. We therefore allow the appeal, set aside the order of the High Court and remand the writ petition to the High Court for determination of the question as to whether the appellant could be said to be a member of Scheduled Caste and if the appellant could be regarded as a member of Scheduled Caste, she would be entitled to be considered for filling up the vacancy reserved for Scheduled Caste candidates. Since it would take time to determine whether she could be said to be a member of Scheduled Caste, we would direct the State Government and the High Court to keep one post of District Judge vacant, whether out of the existing five vacancies or out of two further vacancies which have arisen subsequently and if the appellant ultimately succeeds, she would have to be appointed in the vacancy so kept unfilled and in that event, the question of seniority would have to be determined having regard to all the facts and circumstances of the case. We are not passing any order of stay in regard to appointments to be made by the State Government. There will be no order as to costs.