JUDGMENT 1. - The questions that arise for consideration in the instant writ petition are : (1) Whether the candidate who is selected against the existing vacancy if does not join for some reason and waiting list is still in operation, the candidates in the waiting list have vested right to be appointed ? (2) Whether writ of mandamus can be issued to appoint the candidates in the waiting list if the right of appointment was existing on the date of the petition ? 2. These questions arise in the following-circumstances : (i) The respondent Zila Parishad-Sawai Madhopur invited applications for the post of Gram Sewak cum Secretary through advertisement No. 2196 dated July 24, 1996. The petitioner Ram Babu Koli was selected for the post of Gram Sewak cum Secretary and his name was shown at S.No. 10 of the merit list of the Scheduled Caste candidates and at No. 219 in the general list. This list was affixed at the Notice Board of the respondent. The petitioner was called upon to produce his original testimonials by a letter dated February 17, 1997 and accordingly the petitioner appeared in person on February 20, 1997 and produced his original documents. The documents were found in order and true copies of the said documents were retained and the originals were returned to the petitioner on the same day. As per the advertisement there were 9 posts of Gram Sewak cum Secretary in the Scheduled Caste category and the petitioner being at S.No. 10 in the merit list of Scheduled Caste candidates was entitled for appointment if any candidate above him had not joined the duties. (ii) The respondent vide order dated March 15, 1997 appointed as many as 53 persons on the posts of Gram Sewak cum Secretary, out of which candidates from general category, 9 from Scheduled caste category, 7 from Schedule Tribe Category and 12 from other Back ward Castes were appointed. (iii) Out of nine persons appointed by the respondent against Schedule Castes category only 8 persons had joined the duties. (iv) The grievance of the petitioner is that as one person did not join the duty, he was entitled for appointment being at No. 10 in the merit list. The petitioner submitted various representations to the respondent and the same have been placed on record of this writ petition. (iv) The grievance of the petitioner is that as one person did not join the duty, he was entitled for appointment being at No. 10 in the merit list. The petitioner submitted various representations to the respondent and the same have been placed on record of this writ petition. But no order was passed by the respondent on the representations submitted by the petitioner. (v) The petitioner came to know that one Sumant Kumar Goyal instituted writ petition No. 1885/1997 in this court and an interim order to keep one post vacant was issued in the said writ petition. But this court dismissed the writ petition vide Order dated November 27, 1997. Therefore on December 19, 1997 and January 28, 1998, he again submitted representations before the respondent but no justice was done to him. The petitioner instituted the instant writ petition on Feb. 5, 1998 and averred that in view of Rule 274(1)(ii) of the Rajasthan Panchayat Raj Rules 1996 (for short the Rules of 1996) the merit list prepared by the Zila Parishad on Feb. 20, 1997 was in operation till Feb. 10, 1998. (vi) The petitioner Naresh Kant Sharma also applied in pursuance of the aforesaid advertisement of the respondent. He was also selected and called upon to produce original testimonials. He also appeared in person and submitted original documents. His name was placed at No. 26 in the merit list of the general candidates. The contention of the petitioner Naresh Kant Sharma is that one Dinesh Kumar, whose name was at S.No. 8 in the merit list did not join his duties and one post has become available for appointment. He also submitted representations after dismissal of the writ petition of Sumant Kumar Goyal but no justice was done to him. Petitioner Naresh Kant Sharma submitted writ petition on Feb. 5, 1998 with the averments that the select list was in operation till Feb. 20, 1998 in view of Rule 274(1)(ii) of the Rules of 1996. 3. Written statement on behalf of the respondent was filed in both the writ petitions with the averments that in the instant case Old Rules of Raj. Panchayat Samiti and Zila Parishad Rules, 1961 are applicable and the life of the select list was only for six months. In these circumstances the petitioners cannot be appointed. Other facts mentioned in the writ petition have not been disputed in the reply. Panchayat Samiti and Zila Parishad Rules, 1961 are applicable and the life of the select list was only for six months. In these circumstances the petitioners cannot be appointed. Other facts mentioned in the writ petition have not been disputed in the reply. It has also been pleaded that mere inclusion in the reserve panel does not give indefeasible right to get appointment. 4. Mr. R.C. Joshi learned counsel appearing for the petitioner placed reliance on Surinder Singh and others v. State of Punjab and another, (1997) 8 SCC page 488) and State of U.P. and others v. Harish Chandra and others, ( AIR 1996 SC 2173 ) and contended that the petitioners had submitted writ petitions while the select list was in operation, therefore they are entitled to be appointed on the post of Gram Sewak cum Secretary. According to Mr. Joshi, the petitioners have a right to be appointed as the candidate selected against the existing vacancy did not join for some reason and waiting list was still operative. 5. On the other hand Smt. Naina Saraf placed reliance on Shankarsan Das v. Union of India, (1991)3 SCC 47 , Neelima Shangla v. State of Haryana, (1986) 4 SCC 268 and State of U.P. and others v. Harish Chandra and others, AIR 1996 SC 2173 and contended that waiting list cannot be used as a perennial source of recruitment for filling up the vacancies not advertised and writ of mandamus cannot be issued after expiry of term of waiting list. 6. I have reflected over the rival submissions and carefully scanned the material on record as well as the case law cited before me. 7. Proviso (ii) of sub rule (1) of Rule 274 of Rules of 1996 provides that the life of select list shall be one year. Admittedly the merit list was prepared on Feb. 20, 1997 by the respondent and it was in operation till Feb 20, 1998. Document Annexure-4 is a letter dated March 15, 1997 issued by the respondent. A look at the said document demonstrates that the respondent directed the Development Officer of the Panchayat Samiti that all the appointments shall be subjected to Rules 256 to 296 of the Rules of 1996. Therefore the contention of the respondent that Old Rules were applicable in the instant cases is devoid of any merit. 8. A look at the said document demonstrates that the respondent directed the Development Officer of the Panchayat Samiti that all the appointments shall be subjected to Rules 256 to 296 of the Rules of 1996. Therefore the contention of the respondent that Old Rules were applicable in the instant cases is devoid of any merit. 8. In Surinder Singh and others v. State of Punjab and another (supra) their Lordships of the Supreme Court propounded thus- "Waiting list cannot be used as a perennial source of recruitment for filling up the vacancies not advertised. The candidates in the waiting list have no vested right to be appointed except to the limited extent that when a candidate selected against the existing vacancy does not join for some reason and the waiting list is still operative." 9. In State of U.P. v. Harish Chandra and others (supra) their Lordships of the Supreme Court in para 10 observed thus : "Further question that arises in this context is whether the High Court was justified in issuing the mandamus to the appellant to make recruitment of the Writ Petitioners. Under the Constitution a mandamus can be issued by the Court when the applicant establishes that he has a legal right to the performance of legal duty by the party against whom the mandamus is sought and said right was subsisting on the date of the petition. (Underlining is mine) 10. Undeniably, the writ petitions were filed on Feb. 5, 1998 by the petitioners, when the merit list was in operation. This fact is also not in dispute that the petitioner Ram Babu Koli was shown at S.No. 10 in the merit list of Schedule Castes candidates and one person belonging to Scheduled Caste category did not report to duty. Similarly the petitioner Naresh Kant Sharma was also placed at S.No. 26 in the merit list of general candidate and one appointed person Dinesh Kumar, whose name was at S.No. 8 did not join the duty. Thus in view of the ratio propounded in Surinder Singh v. State of Punjab (supra) and State of U.P. v. Harish Chandra (supra), both the petitioners established that they have a legal right to the performance of the legal duty by the respondent and the said right was subsisting on the date of Lo filing of the writ petition. 11. Thus in view of the ratio propounded in Surinder Singh v. State of Punjab (supra) and State of U.P. v. Harish Chandra (supra), both the petitioners established that they have a legal right to the performance of the legal duty by the respondent and the said right was subsisting on the date of Lo filing of the writ petition. 11. The authorities cited by Smt. Naina Saraf, are not applicable in the facts and circumstances of these cases. 12. I am of the considered opinion that in not appointing the petitioners to the post of Gram Sewak cum Secretary, the act of the respondent is violative of Articles 14 and 21 of the Constitution of India. 13. The writ petitions accordingly stand allowed and the respondent is directed to appoint the petitioners on the post of Gram Sewak cum Secretary within one month from the date of receipt of the copy of this order. The petitioners shall be entitled to seniority with all consequential benefits. Costs o easy.Writ Petitions Allowed. *******