S. S. CHAUHAN, J. The brief facts relevant to the present controversy are that the petitioner is a person belonging to the general category, who was selected in pursuance to the advertisement issued on 10-8-1998. In all 66 vacancies were notified. Out of which 33 vacancies were for the reserved category and 33 vacancies were for the general category. 2. The petitioner is the person whose name appeared in the select list at serial No. 31 and having been selected within 33 vacancies falling in the quota of general category, was not given appointment. The result of the selection was declared on 10-3- 1999, out of 66 vacancies only 60 candidates were shown to have been selected. The rest of 6 candidates were placed in the waiting list. The name of the petitioner appeared at serial No. 1 in the said waiting list in the general category. All the selected candidates were issued call letters. The petitioner made representation to the opposite parties on 23rd August, 1999 requesting them to appoint the petitioner on the above posts. Thereafter Zila Vikas Adhikari, Gonda, sent a letter to the Commissioner, Gram Vikas, U. P. , Lucknow requesting him to fill up further 9 posts of Gram Vikas Adhikari which were then lying vacant from the said waiting list. 3. The petitioner thereafter sent representations on 11-9-1999, 8-12-1999 and 18-1-2000 for considering his candidature and giving him appointment but he failed to receive any information from the opposite parties. On 28-1-2000 the Commissioner, Gram Vikas, U. P. Lucknow sent a letter asking the vacancy position from Zila Vikas Adhikari, Gonda. The District Development Officer, by means of the letter dated 7-2-2000, wrote to Commissioner, Gram Vikas, U. P. , Lucknow informing that still 13 vacancies of the posts of Gram Vikas Adhikari exist. On the above facts, the present writ petition has been filed with the prayer that the petitioner may be given appointment on the post of Gram Vikas Adhikari, as he was legally justified in getting the appointment on the basis of the regular selection and also that his name finds place at serial No. 1 in the waiting list. 4. On the above facts, the present writ petition has been filed with the prayer that the petitioner may be given appointment on the post of Gram Vikas Adhikari, as he was legally justified in getting the appointment on the basis of the regular selection and also that his name finds place at serial No. 1 in the waiting list. 4. Learned Counsel for the petitioner has contended that the name of the petitioner could not have been placed in the waiting list as the advertisement was for 66 vacancies and the 33 vacancies were to be filed up by general category candidates but instead of appointing 33 persons of general category only 30 persons were appointed and the petitioner was shown in the waiting list. He also submits that the vacancies were existing in the District Gonda and that appointment could not have been denied unless and until there were compelling and justified reasons with the opposite parties. The opposite parties have filed counter- affidavit wherein they have said that the post in question has been declared to be a dying cadre post and, therefore, the appointment could not have been done. The further submission of the learned Counsel for the petitioner is that the post in question has been filed up by way of transfer of an incumbent from other district, and, therefore, the appointment could not have been denied to the petitioner being mala fide. 5. Learned Standing Counsel also submits that 66 vacancies at the time of interview were determined by the opposite parties and thereafter were reduced to 60, in the meantime 5 persons were transferred from other district and 60 candidates joined and the petitioner who was placed in the waiting list does not possess any right for appointment on the post in question. 6. I have heard learned Counsel for the parties and gone through the record. 7. It is admitted by the parties that an advertisement was made for 66 vacancies. In para 7 of the counter-affidavit it has been admitted that 3 to the general category and 33 vacancies pertain to the reserved category. In para 5 of the counter-affidavit, it has been averred that the petitioner could not be appointed on account of the fact that by the time appointments were finalized and interview were held, 5 vacancies were filled up by transfer from other districts. 8. In para 5 of the counter-affidavit, it has been averred that the petitioner could not be appointed on account of the fact that by the time appointments were finalized and interview were held, 5 vacancies were filled up by transfer from other districts. 8. The action on the part of the opposite parties in not selecting the petitioner was malicious. At the first instance appointment was denied to the petitioner saying that the post is of a dying cadre post, therefore, the appointment cannot be made. Although, the said notification has been withdrawn by means of the Government Order dated 29-7-1999 the opposite parties failed to justify the denial of the appointment and came forward with a new stand that the vacancies have decreased during the course of selection, and therefore, the petitioner cannot be appointed as he is a person who is placed in the waiting list and there was no occasion to appoint a person whose name appears in the waiting list. 9. Placing of the names of the petitioner and others in waiting list up to serial No. 33, who were regularly selected candidates could not have been done by the opposite parties and that too under the garb and shelter of the fact that the incumbents from the other districts have been transferred to fill up the vacancies, therefore, denying the rightful claim of the petitioner is bad in law. 10. The action of the opposite parties is malicious in decreasing the vacancies with a view to deny the appointment to the petitioner. 11. Learned Counsel for the petitioner has relied upon the judgment reported in 2004 (22) LCD 259 (SC), Oriental Insurance Co. Ltd. v. T. S. Sastry, wherein their Lordships have clearly ruled that when the posts have been filled up by way of the transfer of officers working elsewhere instead of acting upon the select list, such action was mala fide on the part of the authorities depriving the selected candidate of his legitimate claim for promotion. The next case which has been relied by the learned Counsel for the petitioner is reported in (1999) 6 Supreme Court Cases 49, Purshottam v. Chairman M. S. E. B. & Anr. In this case also it was held that duly selected candidate could not be denied appointment on the pretext that panels term had expired. The next case which has been relied by the learned Counsel for the petitioner is reported in (1999) 6 Supreme Court Cases 49, Purshottam v. Chairman M. S. E. B. & Anr. In this case also it was held that duly selected candidate could not be denied appointment on the pretext that panels term had expired. The selected candidate approached the High Court and the High Court directed to appoint the said candidate, inspite of direction of the High Court the appointment was not given by the concerned authorities and the incumbent approached the High Court again. When the said candidate approached next time a defence was taken before the High Court that some one has already been appointed and that term of the panel has also expired. In the aforesaid facts, the Honble Supreme Court held that the posts were already vacant and the person could not have been denied appointment and it was not on account of fault of the person concerned but in fact it was as a result of erroneous decision of the Board itself. It amounted to usurpation of post. The Apex Court held that the right of a person concerned could not have been illegally taken away. 12. Having taken into consideration above two decisions and in the context of the present facts and circumstances and more or less on the same and similar situation, the action of the opposite parties in present case in not giving appointment is mala fide, and the filing of the post by someone which was otherwise not legally due, the petitioner ought to have been appointed in the opposite parties in placing the petitioner in the waiting list, although he was in the select list at serial No. 31 seems to be prima facie malicious and therefore, the said action cannot be justified under law and the writ petition deserves to be allowed. 13. The writ petition is allowed and a writ in the nature of mandamus is issued directing the opposite parties to consider and appoint the petitioner within a period of four months in the light of the observations made above. The appointment would be prospective in nature. 14. There shall be no order as to costs. Petition allowed. .