JUDGMENT : J.B. Pardiwala, J. 1. By this writ application under Article 226 of the Constitution of India, the writ applicant, desirous of seeking appointment on the post of Vidhya Sahayak has prayed for the following reliefs: "(14) to issue writ of mandamus, or writ in the nature of mandamus or order or direction directing the respondent herein to appoint this petitioner as "Vidya Sahayak" in any Primary School run by the respondent with effect from 27/9/99 at any suitable place in Kaira Dist. with all benefits of payment of salary & right of promotion etc & oblige. (B) to grant the costs of this petition to the petitioner from the respondent herein. (C) to pass any other & further order that deemed fit & proper in the facts & circumstances of this case." 2. The case of the writ applicant may be summarized as under: 2.1. After clearing the S.S.C. Examination with 62.57%, the writ applicant undertook a two years course of the Art Teacher Diploma and cleared the same with 79.25%. The Art Teacher Diploma (for short, A.T.D.') is considered equivalent to the P.T.C. The person holding the degree of the A.T.D. is eligible to be appointed as a Art Teacher. 2.2. The District Education Committee of the Kheda District Panchayat published an advertisement dated 30th April 1999 for appointment of the Vidhya Sahayaks in their primary schools run by the Education Committee of the Kheda District Panchayat. The advertisement was issued for the recruitment of in all 897 posts of the Vidhya Sahayaks. Out of the total posts to be filled in, 44 posts were to be filled up through the A.T.D. qualified candidates. The writ applicant, in response to the said advertisement, had applied for the post of the Vidhya Sahayak (A.T.D.) as a Socially and Educationally Backward Class (S.E.B.C.) candidate. 2.3. It is the case of the writ applicant that in the advertisement, it was specifically stated that the candidates shall apply with all the relevant documents which included the creamy layer certificate. 2.4. According to the writ applicant, she found place in the final merit list which was prepared having secured 72.57%. She was placed at Serial No. 12 in the merit list prepared for the O.B.C. candidates. She was expecting the appointment letter, but to her misfortune, her name was deleted from the merit list. 2.4. According to the writ applicant, she found place in the final merit list which was prepared having secured 72.57%. She was placed at Serial No. 12 in the merit list prepared for the O.B.C. candidates. She was expecting the appointment letter, but to her misfortune, her name was deleted from the merit list. She had no idea for what reason her name was deleted from the final select list, and therefore, thought fit to immediately rush to this Court with the present writ application. 3. On 4th June 1999, notice was issued to the respondent making it returnable on 24th November 1999. 4. Ultimately, on 14th December, 1999, rule was issued in the matter making it returnable on 13th January 2000. 5. On behalf of the respondents, an affidavit-in-reply has been filed dated 20th June 2013 inter alia stating as under: "2. The respondent most respectfully states that an advertisement was published in the newspaper dated 30/04/1999 by the respondent for the recruitment of in all 897 posts of Vidya Sahayaks and a copy of advertisement is annexed herewith and marked as Annexure-A. It is submitted that 44 posts of advertisement posts were to be filled up through A.T.D. qualified candidates. The respondent humbly submits that as per the advertisement, 44 posts were to be filled up through candidates belonging to different categories as under:-- General 25 Schedule Caste 3 Schedule Tribe 2 S.E.B.C. 12 Physically handicapped 2 44 It is most respectfully stated that in response to the said advertisement, the petitioner herein applied for the post of Vidya Sahayak (ATD) as Socially and Educationally Backward Class candidates. The respondent authority scrutinized all the applications received in response to the said advertisement and prepared category-wise merit lists and a copy thereof is annexed herewith and marked as Annexure-B. The respondent further states that the petitioner herein was at Serial No. 12 in the said merit list as OBC candidate having secured 72.57 marks. It is pertinent to note that only 12 posts were to be filled up through OBC candidates and on merits she was at Serial No. 12. 3. The respondent submits that however, it appears from the available record that a list of OBC candidates prepared on 27/09/1999 reflects that one Mr. It is pertinent to note that only 12 posts were to be filled up through OBC candidates and on merits she was at Serial No. 12. 3. The respondent submits that however, it appears from the available record that a list of OBC candidates prepared on 27/09/1999 reflects that one Mr. Mukeshkumar J. Parmar belonging to OBC category having secured 72.72% was at Serial No. 12 and that is why he was issued appointment order on 27/09/1999 after interviewing him on the same day pursuant to call letter dated 21/09/1999. The respondent most respectfully craves leave to annex herewith a copy of call letter dated 21/09/1999, merit list dated 27/09/1999 and appointment letter dated 27/09/1999 are annexed herewith and marked as Annexure-C, D & E respectively. 4. In view of the above mentioned facts and circumstances, it is crystal clear that the petitioner is not at all caused any injustice at the end of the respondent and as such more meritorious candidate belonging to OBC is appointed as Vidya Sahayak (ATD) and therefore, there is no substance in the contention raised by the petitioner and hence this Hon'ble Court is humbly prayed not to grant any relief and reject the present Special Civil Application in limine with cost in the interest of justice." 6. On 13th July 2016, the following order was passed: "1. The grievance of the petitioner is that although she was placed in the final select list, her name came to be deleted without giving her any opportunity of hearing on the ground that one Mr. Mukesh J. Parmar also belonging to the OBC category had secured 72.72% i.e. higher than the percentage secured by the petitioner. 2. It appears that Mr. Mukesh J. Parmar although secured more percentage than the petitioner, yet he was not included in the final select list because he had failed to produce the creamy-layer certificate as stipulated in the advertisement. It appears that at a belated stage, the authorities permitted Mr. Mukesh Parmar to produce such certificate and accordingly, he was included in the final select list. As a result, the name of the petitioner got deleted. In the affidavit-in-reply filed on behalf of the respondent, the following has been averred. 3. The respondent submits that however, it appears from the available record that a merit list of OBC candidates prepared on 27/09/1999 reflects that one Mr. As a result, the name of the petitioner got deleted. In the affidavit-in-reply filed on behalf of the respondent, the following has been averred. 3. The respondent submits that however, it appears from the available record that a merit list of OBC candidates prepared on 27/09/1999 reflects that one Mr. Mukeshkumar J. Parmar belong to OBC category having secured 72.72% was at Serial No. 12 and that is why he was issued appointment order on 27/09/1999 after interviewing him on the same day pursuant to call letter dated 21/09/1999. The respondent most respectfully craves leave to annex herewith a copy of call letter dated 21/09/1999, merit list dated 27/09/1999 and appointment letter dated 27/09/1999 are annexed herewith and marked as Annexure-C, D & E respectively. 4. In view of the above mentioned facts and circumstances, it is crystal clear that the petitioner is not at all caused any injustice at the end of the respondent and as such more meritorious candidate belong to OC is appointed as Vidya Sahayak (ATD) and therefore, there is no substance in the contention raised by the petitioner and hence, this Hon'ble Court is humbly prayed not to grant any relief and reject the present Special Civil Application in limine with cost in the interest of justice. 3. Prima-facie, I am of the view that once the advertisement made it clear that the application will not be entertained in the absence of the necessary documents which included the creamy-layer certificate, the authorities concerned should not have accepted such certificate at a belated stage. Prima-facie, it appears that undue favour was shown to Mr. Parmar at a very belated stage. 4. If, I pass any orders today in favour of the petitioner, it will have a direct impact on the service of Mr. Mukesh J. Parmar, who is not before me. 5. In such circumstances, the learned counsel appearing for the petitioner shall implead Mr. Mukesh J. Parmar as the party respondent No. 2. Let Notice be issued to the newly impleaded respondent No. 2, returnable on 28/07/2016. Direct service is permitted." 7. On 26th July 2016, the following order was passed: "It appears that despite the order passed by this Court dated 13th July 2016, the petitioner has not impleaded Mr. Mukesh J. Parmar as the party respondent No. 2. In such circumstances, this matter has been notified today under the captioned For Orders. Direct service is permitted." 7. On 26th July 2016, the following order was passed: "It appears that despite the order passed by this Court dated 13th July 2016, the petitioner has not impleaded Mr. Mukesh J. Parmar as the party respondent No. 2. In such circumstances, this matter has been notified today under the captioned For Orders. One last chance is given to implead Mr. Mukesh J. Parmar as the party respondent No. 2. If the necessary amendment is not carried out by tomorrow, then this petition will stand dismissed for non-prosecution automatically without further reference to this Court." 8. Thus, although this Court directed the writ applicant to implead Mr. Mukesh J. Parmar, as the party respondent No. 2, yet on account of lack of information about Mr. Parmar and his place of work, the learned counsel appearing for the applicant could not implead Mr. Parmar as the party respondent No. 2. 9. Mr. Mehta, the learned counsel appearing for the writ applicant submitted that despite his best efforts to get the address of Mr. Mukesh J. Parmar, the same could not be secured. As a result, the Registry could not issue notice to Mr. Parmar. 10 There is one additional affidavit-in-reply filed by the District Primary Education Officer, Kheda District, inter alia stating as under: "1 The respondent No. 1 most respectfully submits that as stated in affidavit-in-reply filed by my predecessor an advertisement was published on 30/04/1999 by the respondent No. 1 for recruitment of 897 post of Vidya Sahayak. It is stated that out of that, 44 posts were to be filled up through ATD qualified candidates as under: General 25 Schedule Caste 3 Schedule Tribe 2 S.E.B.C. 12 Physically handicapped 2 44 The respondent No. 1 submits that petitioner herein had applied for the post of Vidya Sahayak (ATD) as a SEBC candidate and she was in serial No. 12 in the merit list of SEBC candidates having secured 72.57 marks. The respondent No. 1 on search of the record submits that a letter dated 30/06/1999 was received from Chairman, Vidya Sahayak Committee and Joint Secretary, Education Department, Gandhinagar that a case of one Mr. The respondent No. 1 on search of the record submits that a letter dated 30/06/1999 was received from Chairman, Vidya Sahayak Committee and Joint Secretary, Education Department, Gandhinagar that a case of one Mr. Jayesh Amitbhai Prajapati who had sent a crumblier certificate at a later point of time be considered provided he is meritorious and a copy of letter is annexed herewith and marked as Annexure-A. The respondent No. 1 humbly submits that one Mr. A.A. Nagori, Joint Secretary to the Government of Gujarat, Education Department, Gandhinagar is appointed as Chairman of Vidya Sahayak Committee by the Hon'ble High Court of Gujarat in a Court proceedings. It is submitted that therefore, subsequent to letter dated 30/06/1999, a detailed letter dated 06-13/07/1999 addressed by the then District Primary Education Officer, Kheda District Panchayat to the Chairman of Vidya Sahayak Committee indicating that implementation of his letter dated 30/06/1999 would result into reshuffling of select list/waiting list and may cause Court proceedings. It is submitted that another problem would be of appointment beyond the select list and therefore, necessary permission be granted and a copy of said letter is annexed herewith and marked as Annexure-B. The respondent No. 1 submits that the Chairman of Vidya Sahayak Committee and Joint Secretary to the Government of Gujarat, Education Department, Gandhinagar returned the said letter with endorsement that those 15 to 16 candidates who have produced such certificates till the date of interview be considered and even appointment be made after seeking permission from the Director of Primary Education and such endorsement is on the letter dated 06-13/07/2013 referred to hereinabove. 2. The respondent No. 1 submits that thereafter such candidates were considered and one Mr. Mukesh J. Parmar who has applied for the post of Vidya Sahayak (ATD) secured 72.72 marks was considered as he has produced crumblier certificate before the date of interview. It is submitted that a letter dated 10/09/1999 was addressed to the Director of Primary Education at Gandhinagar giving details about in all such 13 candidates including Mr. Mukesh J. Parmar seeking approval/guidance qua them. It is stated that Mr. Mukesh J. Parmar had applied for the post of Vidya Sahayak (ATD) while remaining 12 candidates had applied for the post of Vidya Sahayak (PTC) and a copy of letter is annexed herewith and marked as Annexure-C. It is stated that later on Mr. Mukesh J. Parmar seeking approval/guidance qua them. It is stated that Mr. Mukesh J. Parmar had applied for the post of Vidya Sahayak (ATD) while remaining 12 candidates had applied for the post of Vidya Sahayak (PTC) and a copy of letter is annexed herewith and marked as Annexure-C. It is stated that later on Mr. Mukesh J. Parmar who was more meritorious having secured 72.72 marks was issued appointment order in place of present petitioner who secured 72.57 marks. In other words, the impugned decision is taken pursuant to the instructions from the higher authority. 3. The respondent No. 1 submits that Mr. Parmar is in employment since last 17 years. It is further submitted that the prayer of the present petitioner for appointment on the ground that the application of Mr. Parmar ought not to have been accepted on the ground of late production of crumblier certificate, may not be accepted after nearly 17 years as the said select list was modified and there is no interim relief against the petitioner. It is submitted that not a single candidate, who has secured less mark than the present petitioner is appointed, therefore, she has no case on merits for any relief. It is submitted that even the life of said select list has also expired and as stated concluded. The respondent No. 1 craves leave to rely upon the judgment of the Hon'ble High Court of Gujarat delivered in Special Civil Application No. 91 of 1992 as well as Hon'ble Division Bench of the Hon'ble High Court of Gujarat in Letters Patent Appeal No. 1228 of 1999 rejecting the same and confirming the order of the Hon'ble Single Judge delivered in Special Civil Application No. 6476 of 1999 during the course of hearing." 11. Mr. Mehta, the learned counsel appearing for the writ applicant vehemently submitted that gross injustice could be said to have been done with his client. According to Mr. Mehta, his client had already found place in the final select list and was put at Serial No. 12 in the list of the O.B.C. candidates. For any reason, if the authority concerned thought fit to delete her name from the final select list, then at least the writ applicant should have been informed about the same and should also have been given an opportunity of hearing. According to Mr. For any reason, if the authority concerned thought fit to delete her name from the final select list, then at least the writ applicant should have been informed about the same and should also have been given an opportunity of hearing. According to Mr. Mehta, though mere inclusion in the select list would not confer any indefeasible right of being appointment on the post, yet if the name is to be deleted for any valid reason, then at least a formal opportunity of hearing has to be given. 12. According to Mr. Mehta, the authority concerned committed a serious error in accepting the creamy layer certificate of Mr. Mukesh J. Parmar at a belated stage. Mr. Parmar was obliged to produce the creamy layer certificate along with his application and having failed to do so, his application at the very threshold should have been rejected. Mr. Mehta submits that although Mr. Parmar had secured more marks than his client, yet Mr. Parmar having not produced the creamy layer certificate in time was not entitled to be considered for appointment in the absence of the creamy certificate. 13. According to Mr. Mehta, the conditions which were prescribed in the advertisement should have been strictly construed. 14. Mr. Mehta submits that there being merit in this writ application, the same may be allowed and a writ of mandamus be issued to appoint the writ applicant on the post of Vidhya Sahayak. 15. On the other hand, this writ application has been vehemently opposed by Mr. Munshaw, the learned counsel appearing for the sole respondent i.e. the Chairman Education Committee, Kheda District Panchayat. Mr. Munshaw submits that the correct picture has been highlighted in the two affidavit-in-replies which are on record. Mr. Munshaw submits that it is not in dispute that Mr. Parmar along with his application had not produced the creamy layer certificate. His candidature otherwise was liable to be rejected. According to Mr. Munshaw, there were many cases like one of Mr. Parmar wherein the candidates were not in a position to produce the creamy layer certificates at the right time. However, a policy decision was taken by the Chairman, Vidhya Sahayaks Committee to accept the creamy layer certificates at a belated stage i.e. at the stage of oral interviews. It appears that ultimately Mr. Parmar wherein the candidates were not in a position to produce the creamy layer certificates at the right time. However, a policy decision was taken by the Chairman, Vidhya Sahayaks Committee to accept the creamy layer certificates at a belated stage i.e. at the stage of oral interviews. It appears that ultimately Mr. Mukesh J. Parmar, having secured more percentage of marks than the writ applicant, was included in the final select list of the O.B.C. candidates. As a result, the name of the writ applicant, who was at Serial No. 12, came to be deleted. 16. Mr. Munshaw submits that the appointment of Mr. Parmar could not be said to be per se illegal appointment. At best, it could be termed as an irregular appointment. According to Mr. Munshaw, it cannot be even termed as a irregular appointment because there was no violation or breach of any statutory rules governing the appointment on the post of Vidhya Sahayak. An administrative decision was taken by the authority concerned to accept the creamy layer certificate at a later stage. Such discretion is always with the authority in this type of appointments. 17. Mr. Munshaw submits that almost seventeen years have passed by now, and if any relief is granted at this stage to the writ applicant, then it will have a direct impact so far as the appointment of Mr. Parmar is concerned. In such circumstances referred to above, Mr. Munshaw prays that there being no merit in this writ application, the same be rejected. 18. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the writ applicant is entitled to the relief prayed for in this writ application. 19. It is well settled that before any writ and more particularly, a writ of mandamus is issued by this Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India, the party who is likely to be affected, should be before the Court. The order passed by this Court dated 13th July 2016 is self-explanatory. However, it seems that despite best efforts, the writ applicant has not been able to implead Mr. Parmar as the party respondent No. 2 in this writ application. In the absence of Mr. The order passed by this Court dated 13th July 2016 is self-explanatory. However, it seems that despite best efforts, the writ applicant has not been able to implead Mr. Parmar as the party respondent No. 2 in this writ application. In the absence of Mr. Parmar, this Court should not grant any relief as prayed for by the writ applicant. 20. Even otherwise, I find it a little bit difficult to accept the argument of Mr. Mehta, the learned counsel appearing for the writ applicant that the appointment of Mr. Parmar can be termed as an illegal appointment. I would rather say, it cannot be termed even as an irregular appointment. There is a fine distinction between illegal appointment and irregular appointment. In the event, the appointment is made in total disregard of the constitutional scheme as also the recruitment rules framed by the employer, which is a 'State' within the meaning of Article 12 of the Constitution, the recruitment would be an illegal one; whereas there may be cases where, although, substantial compliance of the constitutional scheme as also the rules have been made, yet the appointment may be irregular in the sense that some provisions of some rules might not have been strictly adhered to. 21. Let me for the time being on the footing that the appointment of Mr. Parmar was irregular. Should it be set at naught after a period of seventeen years on the ground that the petitioner had failed to produce the creamy layer certificate along with his application and that he produced the same at a belated stage? The answer is in the negative. It is true that the conditions prescribed in the advertisement should be construed strictly, but at the same time, it is difficult for me to hold that the State has no power or discretion to deviate from the advertisement in exceptional circumstances or in an emergent situation. I am of the view that in a case like one in hand, the authority committed no illegality by taking a policy decision to accept the creamy layer certificate at a belated stage. Such policy decision was taken, not just to accommodate Mr. Parmar, but about sixteen such candidates like Mr. Parmar, for one reason or the other, were not in a position to produce the creamy layer certificates along with their applications. Despite such policy decision, only Mr. Such policy decision was taken, not just to accommodate Mr. Parmar, but about sixteen such candidates like Mr. Parmar, for one reason or the other, were not in a position to produce the creamy layer certificates along with their applications. Despite such policy decision, only Mr. Parmar could be appointed because of his merit. All other candidates although were permitted to produce their creamy layer certificates at a latter stage, yet could not make it because they could not find place in the final merit list. 22. I can appreciate the dismay of the writ applicant. At the same time, I should also keep in mind that almost seventeen years have passed. To disturb someone's appointment after a period of seventeen years and that too when that person is not before this Court will result in gross injustice. 23. At this stage, Mr. Mehta, the learned counsel appearing for the writ applicant submitted that the appointment of Mr. Parmar may not be disturbed, but at the same time, by creating a supernumerary post, the writ applicant may be appointed on the post of Vidhya Sahayak. I am afraid, I am unable to accede to the fervent appeal made by the learned counsel. The case in hand is not one where the Court should ask the authority to create a supernumerary post. 24. For the foregoing reasons, this writ application fails and is hereby rejected. Rule is discharged.