JUDGMENT 1. - Heard lerned counsel for both the parties. 2. This special appeal is directed against the order dated 12.3.1999. The case of the petitioner in the petition was that, he has been placed in select list for appointment as Physical Teacher Grade-II. In pursuance of advertisement (Annexure-1) and in the select list his name was at Serial No. 4 in order of merit, that selection list has been produced as (Annexure-2), this select list was in operation till 31st March, 1997. The case of the petitioner is that on 31st March, 1997 five persons outside the select list have been appointed as Physical Instructor grade-II and five persons outside the select list have been appointed offering no appointment to him in order of merit. That amounts to violation of his fundamental right under Articles 14 and 16 of the Constitution of India, as he has been denied equality of opportunity in the matter of employment as has been denied to the appellant in an arbitrary manner. He therefore, sought a mandamus that the respondents be directed to offer him appointment at his original place in the order of merit in the select list Annexure-2. No reply was filed in this writ petition. The petition has been dismissed on preliminary ground that since the petition has been filed after the select list has ceased to be operative on 31st March, 1997, no relief can be granted as petitioner cannot claim any right on the basis of such select list and secondly for not impleading and person appointed to service. 3. We are of the opinion that both the preliminary objections taken by the respondents cannot be sustained. From the facts alleged in the petition, it is apparent that the appointment outside the select list has been given as on the date, when the select list was in operation namely 31st March, 1997. That being so the date on which the appointments were offered to persons who were not in the select list which was in operation and the petitioner's name was first amongst those whom appointment was not offered until then though all persons viz. three in number have been appointed do result in violation of the petitioner's fundamental rights. Granting the appointment to somebody else outside the select list, while the select list was in operation tantamount to denying him the equality before law. three in number have been appointed do result in violation of the petitioner's fundamental rights. Granting the appointment to somebody else outside the select list, while the select list was in operation tantamount to denying him the equality before law. It is true that mere inclusion of the name in the select list does not confer any right to the appointment, it is equally well settled that if such select list is operated, the appointments will ordinarily be offered in order of merit in which their names appear in the select list, no person outside such select list can be appointed during the life of such select list on the posts for which selections have been made. Any deviation from the select list in giving appointment would call for satisfactory explanation for such deviation and not giving effect to the select list. It was not a case where appointments have been offered outside select list after the said list had ceased to be operative. 4. This is what the Apex Court said in State of Haryana Vs. Subash Chandra Marwarha in (1974) 3 SCC 220 . "Indeed, if the State Government while making the selection for appointment had departed from the ranking given in the list, there would have been a legitimate grievance on the ground that the State Government has departed from the rule in this respect." 5. This question was considered by five Judges Bench of the Supreme Court in Shankarsan Dash Vs. Union of India, AIR 1991 SC page 1612 . wherein it has been observed as under:- "It cannot be said that if a number of vacancies are notified for appointment an adequate number of candidates are found fit, the successful candidate acquire an indefeasible right to be appointed which cannot be legitimately denied ............. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bonafide for appropriate reasons. And if the vacancies or any of them are filled up, State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been constantly followed by this Court............ 6. And if the vacancies or any of them are filled up, State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been constantly followed by this Court............ 6. So also the question of impleading the persons appointed, would arise in the case where the appointments are challenged as invalid and their ouster is sought. The petitioner has claim that after those persons who were above him in the select list have been appointed against the existing vacancies, he ought to have been given appointment before anybody else was given appointment to the remaining vacancies. He cannot be nonsuited from claiming such relief for want of impleading any person appointed because he is not seeking any relief against any of the persons appointed. They were not necessary party. At least such persons can be treated as proper parties. 7. Therefore, in our opinion the ground on which the petition has been dismissed at preliminary stage without calling upon the respondents to explain for not operating the select list which it was in operation, in the case of petitioner, while giving appointments to persons outside select list. 8. In these circumstances, this appeal is allowed. The order under appeal is set aside. The matter may now be placed before appropriate bench for consideration. The petitioner may, if so desires, make appropriate application to implead any one or more of such person who have been given appointment outside select list. The respondents may file reply to the writ petition within four weeks.Special Appeal allowed. *******