JUDGMENT : S.N. Prasad, J. Both the writ appeals pertains the same issue and as such both have been taken together and are disposed of by this common order. 2. Before going into the order it would be relevant to bring few facts which are as follows:- Both the writ petitioners (respondents herein) while working as seasonal Oriya long-hand reporters and copyists in the Secretariat of Orissa Legislative Assembly have submitted their application for being considered and to be appointed against the sanctioned post in regular manner and accordingly they have appeared at the selection test held on 5.4.1998. The result of the selection having not been published, but they were continued on ad hoc basis, but on enquiry they found that however their names appear at sl. nos.7 and 8 in the select list but they have not been appointed and subsequently they have also been terminated from service. They also came to know that some outsiders were appointed against the said vacancies. The writ petitioners after being terminated from service have filed writ petitions before this court challenging the order of termination which was registered as O.J.C. No. 6109 of 2001 and this court vide order dtd.18.5.2001 has directed the writ petitioners to file a detail representation before the authorities raising therein their grievances but the authorities without assigning any valid reason has rejected the claim of the writ petitioners vide order passed in this regard on 23.2.2010 which is impugned in these two writ petitions. The grievance of the petitioners that while they were working on ad hoc basis under the Orissa Legislative Assembly and had participated in the selection process for being selected under the regular establishment of the Assembly in which they have been found to be successful but they have not been appointed and subsequently they have been terminated from service, hence the action of the authorities is highly arbitrary and illegal. Their further contention is that from the same select list a candidate namely Manjushri Tripathy having her name appeared at sl. No.9 has been selected and appointed even though on the first round her writ petition was rejected granting liberty to file representation before the competent authority and on the basis of the representation she has been appointed, hence it has been submitted by the petitioners that their names are appearing at sl. No.9 has been selected and appointed even though on the first round her writ petition was rejected granting liberty to file representation before the competent authority and on the basis of the representation she has been appointed, hence it has been submitted by the petitioners that their names are appearing at sl. Nos.7 and 8 but ignoring their cases a candidate whose name appears at sl. No.9 since been appointed, hence they have a valid cause of action of discrimination and not appointed under the regular establishment in pursuance to the select list prepared on the basis of the written test held on 30.11.1997. The petitioners on this pretext have filed writ petitions and learned single judge while quashing the order of termination and rejection of the representation has directed the Legislative Assembly to re-instate the writ petitioners in service as permanent employee having regular pay scale admissible to the post along with continuity in service. The learned single judge on the basis of concession given by the learned counsel representing Orissa Legislative Assembly has passed this order and as such it has been submitted by the petitioners that no appeal should have been filed since the order has been passed on the concession and also taking into consideration the fact that the petitioners have been victimized by acting contrary to the principles laid down in Article 14 of the Constitution of India. 3. These writ appeals have been filed assailing the order passed by the learned single judge under Article 226 and 227 of the Constitution of India on the ground that the order passed by the learned single judge is contrary to the law laid down by this Court as well as by the Hon’ble Apex Court in the cases of Shankarsan Dash Vrs. Union of India, reported in 1991 3 SCC 47 and Balakrushna Behera Vrs. Satya Prakash Dash, reported in 2008 1 SCC 318 . The writ petitioners were initially appointed temporarily on ad hoc basis and were terminated due to non-availability of regular vacancy but however they had been allowed to continue as such and subsequently their services have been terminated and it is settled that mere inclusion of name of a candidate in the select list does not confer any right upon the candidate to claim regularization in service. The other ground taken that the appointments were given to the selectees up to sl. The other ground taken that the appointments were given to the selectees up to sl. No.6, though appointment of selectee Smt. Manjushri Tripathy was given but her services were terminated on the ground of illegality having been observed, but she filed writ petition before this court against the order of termination vide O.J.C. 8416 of 2001 which was dismissed of by this court but after dismissal of her case, she filed review petition before this court and then submitted representation to the Hon’ble Speaker and thereafter the representation has been considered and she had been re-instead in service with the observation that she had been harassed for no fault of herself. Accordingly it has been stated that the case of Smt. Manjushri Tripathy is entirely on different footing. In the light of these rival submissions it is to be seen as to whether the learned Single Judge while passing the order Under Article 226 and 227 of the Constitution of India has committed any error or not? 4. Before answering this issue it would be relevant to take note that the nature of appointment involved in this case is public appointment. It is settled that in the matter of public appointment the authorities are supposed to act with fairness and transparency. The fairness and transparency denotes that the recruiting agency should act in the proper manner so that a right candidate may be selected and there may not be any unfair means. The implied meaning of fairness and transparency is that the process of appointment may not suffer with nepotism and favouritism. It is for this purpose the public employment is to be made strictly in consonance with Article 16 of the Constitution of India which demonstrate that there must be of wide publication of the notice / advertisement so that large number of candidates may appear in the selection process and amongst them the most suitable may be selected. There is no dispute about the fact that mere inclusion of name of a candidate in the select list does not confer any right, but simultaneously it is to be seen the conduct of the recruiting authority. There is no dispute about the fact that mere inclusion of name of a candidate in the select list does not confer any right, but simultaneously it is to be seen the conduct of the recruiting authority. If from the same select list a candidate below in the list selected, then certainly a right will accrue in favour of the non-engaged candidates who are above in the list and in that situation the judgment relied upon by the learned senior counsel representing the Assembly are not applicable. It is also to be seen as to whether the action of the authorities suffers from malice of Article 14 of the Constitution of India. Article 14 of the Constitution of India speaks regarding fair and just procedure. The decision making process should be transparent, fair and open, reason being fairness is the heart and sole of Article 14 ( 1997 1 SCC 53 para-7 and 2008 2 SCC 672 para-43). In the light of this legal proposition the case in hand is to be assessed. 6. Admittedly, the writ petitioners were working on ad hoc basis under the Orissa Legislative Assembly and while working, the Assembly has notified vacancies for fulfilling it. The petitioners along with others had participated in the selection process. They have been called upon to appear in the written test, accordingly they had appeared in the written test. A select list was prepared by the recruiting authority in which the names of the petitioners found mentioned at sl. nos.7 and 8. The petitioners have not been appointed. They had been allowed to continue in service on ad hoc basis, but subsequently they have been terminated from service vide order dtd.24.8.2000. The petitioners have challenged the same before this court under its writ jurisdiction by filing two writ petitions being O.J.C. Nos.6109 and 6148 of 2001, both the writ petitions have been disposed of in the year 2001 by giving liberty to the petitioners to file fresh representations and in turn the authorities have been directed to take decision in accordance with law. The petitioners have made representation giving therein all details about their non-appointment pursuant to the selection process and also referred therein the candidature of Manjushri Tripathy. Smt. Manjushri Tripathy had also participated in the selection process but her name was mentioned at sl. The petitioners have made representation giving therein all details about their non-appointment pursuant to the selection process and also referred therein the candidature of Manjushri Tripathy. Smt. Manjushri Tripathy had also participated in the selection process but her name was mentioned at sl. no.9 of the select list and she has been terminated against which she approached this court by filing writ petition but her writ petition was dismissed. Smt. Tripathy had filed a review petition in which she had been given liberty to file representation and in pursuance to the same she had filed representation and the Speaker has allowed her prayer, directed her to be re-instead in service vide order dtd.1.5.2004. There is no dispute about the fact that there is no legal vested right for engagement if the name of a candidate is in the select list or in the merit list, but the moment a candidate below in the select list is selected and engaged, a right will accrue upon such candidates who are above than him / her, exactly the case herein. Smt. Manjushri Tripathy initially was not engaged but subsequently she has been engaged vide order dtd.1.5.2004 ignoring the case of the writ petitioners even though their names appear at sl. nos.7 and 8 of the select list. The contention of the learned counsel representing the Legislative Assembly is that the select list is not based on the respective marks of the candidates since no record is available with respect to the details of marks obtained by one or the other candidate and in absence of any marks it cannot be said that any irregularities have been committed. But this argument cannot be accepted for the reason that when the Legislative Assembly or any authority of the State or of the Centre or any agency is conducting an examination for making public employment, it is their duty to keep all the records and if the record is not available the plea of the recruiting agency cannot be accepted that it is not a select list prepared on the basis of respective marks of one or the other candidate. There is no dispute about the fact that the select list has been prepared, basis upon which candidate at sl. nos.1 to 6 have been appointed and thereafter the candidate whose name appears at sl. There is no dispute about the fact that the select list has been prepared, basis upon which candidate at sl. nos.1 to 6 have been appointed and thereafter the candidate whose name appears at sl. no.9 has been appointed leaving the candidates whose names appear at sl. nos.7 and 8, i.e. these two writ petitioners. Thus it cannot be said that the authorities have adopted fairness and transparency in recruitment process. On the basis of these factual aspects we have no hesitation in holding that the Legislative Assembly has not conducted the recruitment process with all fairness and transparency. The contention raised with respect to the engagement of Smt. Manjushri Tripathy that since she belongs to lady category, hence she has been selected, but this is not acceptable to us because the benefit of reservation either it is general or special is to be given in pursuance to a policy decision, but nothing has been brought on record as to whether the appointment has been given in favour of Smt. Manjushri Tripathy on the basis of prevailing reservation policy meant for the female category under the provision of special reservation applicable to such candidates. Learned senior counsel representing the Legislative Assembly has submitted that there is delay and as such after such a long delay, no writ of mandamus can be issued as has been issued by this court under its writ jurisdiction, but we are not inclined to accept this argument for the reason that the petitioners have been terminated in the year 2001, thereafter they have filed writ petitions before this court in the year 2001 and the writ petitions were pending fairly for a long period and ultimately the writ petitions have been disposed of in the year 2009 and immediately thereafter they have filed these writ petitions in the year 2010 and during pendency of the writ petitions Smt. Manjushri Tripathy has been engaged, this point has been raised by these writ petitioners in the representation which has been filed pursuant to the order passed by this court. Since writ petitions were pending before this court, as such for the pendency of litigation the parties cannot be made to suffer. We have gone through the impugned order rejecting the claim of the petitioners which is being reproduced here under as:- 1. He was given appointment piecemeal on temporary basis. 2. Since writ petitions were pending before this court, as such for the pendency of litigation the parties cannot be made to suffer. We have gone through the impugned order rejecting the claim of the petitioners which is being reproduced here under as:- 1. He was given appointment piecemeal on temporary basis. 2. The Select List referred to by him for appointment / reinstatement has been prepared showing the list of candidates of reserved and unreserved categories against whom marks secured by them have not been reflected. Marks secured by the candidates are not available in the office. The appointment order of Shri Kali Shankar Mishra (at sl. no.6) has been issued on 8.2.1999 whereas the appointment order of Shri Meher Krishna Chandra Khatai (at sl. no.5) has been issued on 12.2.1999. This position indicates that the appointment orders were issued not according to serial of the Select List.” From perusal of the reasoning given, we find that no reason has been shown regarding non-consideration of the case with respect to their appointment pursuant to the selection process, rather they have said that marks is not available and as such it cannot be said that appointment orders were issued according to the select list. But this finding is contrary to the record as because the sl. nos.1 to 6 have been appointed leaving the candidates whose names appear at sl. nos.7 and 8 and thereafter the candidate at sl. no.9 has been appointed, hence it cannot be said that the selection list prepared to appoint the candidates is not a merit list, in absence of any other list. Further if it is not a merit list, then the Legislative Assembly should have come out with a merit list being the custodian of the document, but they have not come forward with the merit list. Further we have also found that the learned counsel representing the Assembly before the writ court has conceded with respect to the grievance of the petitioner and submitted that the petitioners can be adjusted since there are vacancies and taking into consideration the concession given by the learned counsel representing the Assembly learned Single Judge has passed the order. Further we have also found that the learned counsel representing the Assembly before the writ court has conceded with respect to the grievance of the petitioner and submitted that the petitioners can be adjusted since there are vacancies and taking into consideration the concession given by the learned counsel representing the Assembly learned Single Judge has passed the order. There is no dispute about the fact that when concession is of factual aspect and is being given by the learned counsel representing the parties, the court will accept it and accordingly on the basis of concession given by the learned counsel, the writ court has passed the order. On these factual aspects we have scrutinized the order passed by the learned Single Judge who after taking into consideration all aspect of the matter, has passed order allowing the prayer of the petitioner by quashing the order of termination dtd.24.8.2000 and the order dtd.23.2.2010 by which the representation filed by the petitioners in terms of the order passed by this court had been rejected with a direction to re-instead the petitioners as permanent employee having regular scale of pay admissible to the post along with continuity in service, however without any back wages. Taking into consideration the facts which have been discussed by us herein above and also taking into consideration the method by which the selection process has been initiated, we have got no hesitation in holding that the petitioners have illegally been denied appointment. In view thereof we find no reason to interfere with the order passed by the learned Single Judge. Accordingly both the writ appeals are dismissed. I agree.