Judgment : D. K. Seth, J. 1. A select list containing 13' names was published after the same was approved by the Collector, Badaun on 15th January, 1993 along with the waiting list containing five names. The petitioners' names figure at Serial No. 4' and 5' of the waiting list, wherein the petitioner No. 2 was shown as backward class candidate. The said 13 persons were given appointment on 22.1.1993 against the vacancies which existed on the date selection process had started. Admittedly, in the next one year namely till the end of December, 1993 five persons were due to retire on superannuation. But after the persons at Serial y Nos. 1 to 3 in the waiting list were given appointment during the currency of the said list which is admittedly valid for one year, the same was sought to be cancelled by the Collector, by order dated 23rd July, 1993 which is Annexure 8 to the writ petition. It is this order which has been challenged in the present writ petition by the petitioner. 2. SRI Ashok Khare, learned counsel appearing on behalf of the petitioners contends, while translating the Annexure 4 to the writ petition, that even cancelling the candidature of the petitioners in the impugned order it was pointed out that the vacant posts as on 30th June, 1994 were to be filled up by fresh recruitment which should be completed within 15.9.1993. He also contends that even before the said order dated 23.7.1993, the Collector, Badaun had held fresh selection in April, 1993 and had selected two persons named in Para 15' and had given them appointment on 24.4.1993 which is Annexure 7 to the writ petition. On this background SRI Khare, learned counsel for the petitioners confined his argument on two-fold grounds, as indicated hereinafter. His first contention was that the selection list is to be made in terms of Rule 22 of the U. P. Subordinate Offices Ministerial Staff (Direct Recruitment) Rules, 1985 as amended by U. P. Subordinate Offices Ministerial Staff (Direct Recruitment) (First Amendment) Rules, 1986 which provides in Rules 22 and 23. His first contention was that the selection list is to be made in terms of Rule 22 of the U. P. Subordinate Offices Ministerial Staff (Direct Recruitment) Rules, 1985 as amended by U. P. Subordinate Offices Ministerial Staff (Direct Recruitment) (First Amendment) Rules, 1986 which provides in Rules 22 and 23. the manner of recruitment, pursuant to which vacancy is to be determined, taking into account the vacancies that might occur during one year next from the selection process, and such rise should contain candidates 25% in excess of number of the existing and contemplated vacancies during the period of one year and the petitioners having been included within the number of vacancies, existing and contemplated during one year there was no scope for cancelling the waiting list on the ground that the petitioners were selected in excess of 25% of the vacancies. 3. THE second contention of Sri Khare, is that during the currency of the select list the candidates included in the select list cannot be deprived of appointment in the existing vacancies by Overlooking their case while filling up the same by some other persons even during the currency of the select list which till then stood valid and was not cancelled until after such appointment is given, is hit by the principles of equality as enunciated in Article 14 of the Constitution. 4. SRI R. K. Saxena, learned standing counsel on the other hand vehementally opposes SRI Khare's contentions. According to him in view of sub-rule (8) of Rule 23. the list may contain the names exceeding 25% of the vacancies and not beyond that. There having been 13 vacancies the list could contain only 16 names adding 25% in excess. Therefore, the name of the petitioners were rightly excluded since the inclusion of their names was contrary to the rules and, as such, was void ah initio and has to be ignored. In order to appreciate the rival contention it is necessary to refer to Rules 22 and 23 so far as it is relevant for our purpose : "22. Notification of vacancies to the Employment Exchange.-The appointing authority shall determine the number of vacancies to be filled during the course of the year." 23. In order to appreciate the rival contention it is necessary to refer to Rules 22 and 23 so far as it is relevant for our purpose : "22. Notification of vacancies to the Employment Exchange.-The appointing authority shall determine the number of vacancies to be filled during the course of the year." 23. Procedure of selection.- (1) ------------------- (2) -------------------- (3) The number of candidates to be selected will be larger (but not larger than 25 per cent) than the number of vacancies for which the selection has been made." The expression used in Rule 22 is that the Appointing Authority shall determine the number of vacancies to be filled during the course of the year. Now, the selection was undertaken in January, 1993. Admittedly, one year would expire in December, 1993. Therefore, while making selection, the Appointing Authority is required to determine the number of vacancies to be filled in during the course of the year. This expression means that the vacancies which are existing on the date of selection as well as the vacancies that might occur during the next one year is to be determined. The direction to determine is followed by 'shall' which has the implication of mandate leaving no scope for the Appointing Authority to do otherwise. The intention of the Legislature was to avoid selection in daivlet. Since the selection list has been given validly for one year all vacancies that are required to be filled in meaning thereby to be filled in future during the next one year are to be determined. In fact, so far as the vacancies are existing are not the matter of determination but is a matter of notification. Whereas the vacancies that are required to be filled during the period of one year is a question of determination. Therefore, while proceeding with the selection, it is mandatory and precondition to determine the number of vacancies to be filled in during the course of the year which implies the existing and the future vacancies expected during the next one year. Rule 23 (8) provides that the list shall be larger than the number of vacancies but the same shall not be larger than 25% of the number of vacancies. Rule 23 (8) provides that the list shall be larger than the number of vacancies but the same shall not be larger than 25% of the number of vacancies. Such provision is provided in contemplation of the fact that all the persons selected may not Join or may leave within the period of one year after joining and in such case instead of making fresh selection, the selection, being a time consuming affair by way of repetition and facilitating filling up of the vacancies expeditiously or to fill up some other anticipated vacancies which might occur during the said period of one year. 5. IN the facts and circumstances of the case in Para 30 of the writ petition specific names have been disclosed along with dates as to the persons, five in number, who have retired or were due to retire between the said period along with the name of persons on whose death, transfer, dismissal or compulsory retirement, as the case may be, vacancies had occurred. The said Para 30 of the writ petition has been dealt with in the counter-affidavit filed by the respondents in Para 22 wherein it has been stated" that the concents of Para 30 of the writ petition are incorrect and are not admitted. It is stated that on the basis of retirement of the employees due in the year the vacancies were counted and the selection was made on the basis of existing vacancy as well as likely to occur during the year concerned." Therefore, the statement made in Para 30 of the writ petition which gives specific incidence have not been denied. This presupposes that even excluding the vacancies that occurred due to the death, transfer, dismissal or compulsory retirement, there were six cases of retirement till 31.12.1993. 6. THUS, in terms of sub-rule (1) of Rule 22 this six vacancies which were due to be filled up were certain because the date of retirement were already known in each case and was within the scope of determination by the Appointing Authority along with 13' existing vacancies which fact has not been disputed. 6. THUS, in terms of sub-rule (1) of Rule 22 this six vacancies which were due to be filled up were certain because the date of retirement were already known in each case and was within the scope of determination by the Appointing Authority along with 13' existing vacancies which fact has not been disputed. In as much as in Para 11 of the petition it is contended that the said 13 posts were filled up on 22.1.1993 after the selection was approved on 15.1.1993 while dealing the said Para 11 in Para 6 of the counter-affidavit, the respondents had averred" that the contents of paragraphs 10 and 11 of the writ petition need no reply." Therefore, taking into account 13 existing vacancies and the said six retirement there was no scope for the Appointing Authority but to determine the vacancies at 19 at the minimum. If the number of 19' vacancies are determined as 19' and list be prepared in terms of Rule 23 (8) then the list should have contained the names of 23' candidates. Whereas admittedly the name of 18 candidates were included in the select list. The rule does not contemplate preparation of any waiting list as such separately since the list is to remain valid for one year inasmuch as the persons selected in order of merit would be entitled to be absorbed in the existing vacancies and the rest would remain till one year for the purposes of filling up of the vacancies that might occur during the currency of the list. The expression used in Rule 23 (8) is to be read with Rule 22 (1). The reference to the number of vacancies in Rule 23 (8) is referable to Rule 22 (1) which contemplates both existing and future vacancies that might occur during the next one year and 25% excess is to be counted on the basis of total number of vacancies both existing and contemplated during the said period. 7. THEREFORE, by no stretch of imagination it can be said that inclusion of five candidates in the waiting list along with 13 candidates against the existing 13 vacancies was in excess of 25% as contemplated in Rule 23 (8). 7. THEREFORE, by no stretch of imagination it can be said that inclusion of five candidates in the waiting list along with 13 candidates against the existing 13 vacancies was in excess of 25% as contemplated in Rule 23 (8). On the other hand, as shown in Para 30 read with Para 11 of the petition, as indicated above, admittedly there were 19 vacancies in terms of Rule 22 (1), whereas 18' candidates were selected, thirteen in the main list and five in the waiting list. THEREFORE, the number is less than the number of vacancies, as contemplated in Rule 22 (1). In that view of the matter, the cancellation of the waiting list on the ground of its being in excess of 25%, as indicated in the order contained in Annexure 8 to the writ petition, is wholly misconceived and contrary to law and therefore, cannot be sustained. 8. ONCE the list is prepared and the same remained valid for a period of one year, the same cannot be cancelled during its currency even when vacancy is existing. Even though, the list is prepared, assuming for arguments sake, in excess of 25% inasmuch as the names were included in the list after proper selection. The process whereof has not been disputed or alleged to have been undertaken in violation of the procedure contained in Rule 22 (1) read with Rule 23 (1) to (7) of the said Rules. When the select list is in currency, the appointment by fresh selection of other persons appears to be wholly arbitrary and is hit by Article 14 of the Constitution, namely, making discrimination in the matter of selection when one selection has already been made, particularly, in the present facts and circumstances of the case, where there were vacancies even before the list had expired or cancelled. List appears to have been cancelled only by order dated 23.7.1993, whereas two posts were filled in by fresh selection on 24.4.1993. Admittedly till 23.7.1993 list was not cancelled and one year period had not expired. Therefore, the said list as on 24.4.1993 was in currency and a valid one. Therefore, appointment could not be given to any one else except the persons remaining in the list, as has been given to the persons named in Para 15 of the writ petition, overlooking the claim of the petitioners. Therefore, the said list as on 24.4.1993 was in currency and a valid one. Therefore, appointment could not be given to any one else except the persons remaining in the list, as has been given to the persons named in Para 15 of the writ petition, overlooking the claim of the petitioners. Such action on the part of the respondents is highly arbitrary and illegal During the currency of the list the case of the petitioners cannot be overlooked and no fresh appointment can be made from outside without cancelling the said list, particularly when the same cannot be said to be void ab initio or at least without declaring the same to be so. The statement made in Para 15 of the writ petition has been dealt in Para 9 of the counter-affidavit, wherein the only ground that was mentioned is that the petitioners were not eligible because they were included in the list in excess of 25% limit without denying the appointment of the said two persons named in Para 15 as on 24.4.1993. Admittedly there having been vacancies, as indicated in Para 30 of the writ petition, which has not been denied in the counter-affidavit, more than ten, there was no scope for the respondents to deny the case of the petitioners for being appointed in two of such vacancies even if three of them are filled up from amongst other three candidates of the waiting list. 9. IN that view of the matter the writ petition succeeds. The impugned order contained in Annexure 8 to the petition is hereby quashed. Accordingly, a writ of certiorari do issue. 10. IN the facts and circumstances of the case since the persons named in Para 15 have been given appointment, overlooking the claim of the petitioners as on 24.4.1993, the petitioners having claim existing before the appointment of the said two persons according to the observations made above, the respondents are found to give appointment to the petitioners in those existing vacancies on a date since when the respective vacancies had occurred as mentioned in Para 30 of the writ petition, being the vacancy next after three persons from the waiting list having been appointed. Accordingly, a writ of mandamus do issue. There will, however, be no order as to costs.