JUDGMENT : A.S. SUPEHIA, J. 1. Present petition is filed seeking following prayer, “9 (A). That Your Lordships be pleased to issue an order, direction and/or writ in the nature of mandamus and/or any other appropriate writ, order or direction, directing the respondent to consider the case of the petitioner for appointment to the post of Assistant Manager in the scale of Rs.8000-13,500 and be further pleased to direct the respondent to pay the arrears from the date the petitioner is entitled for the post of Assistant Manager i.e. 12.02.2007. (B). Your Lordship be pleased to direct the respondent to consider the case of the petitioner for the post of Assistant Manager at least from 10.10.2007. (C). Direct the respondent to pay the arrears of salary with interest thereon.” 2. The Petitioner was appointed as Junior Clerk in EC Department of Ahmedabad Municipal Corporation on 21.07.1990. On 01.10.2004 the department issued a circular for filing up the post of Assistant Manager in the grade of Rs.8000-13500. A written examination was conducted for that purpose by the respondent Corporation wherein the petitioner appeared and secured 51 marks, and he was placed at Sr.137. The selection committee vide Resolution No.38 dt.19.01.2009 prepared select list/waiting list. The petitioner was placed at Sr.No.2 in the waiting list as per his merit marks, i.e.51. By the Resolution dated 19.01.2007 passed by the respondent Corporation eight persons were appointed on probation for a period of one year as Assistant Manager. Thereafter, the respondent Corporation passed another Resolution on 12.02.2007 appointing one Shri Hitesh S. Thakkar on probation for one year as Assistant Manager. At this stage, it would be relevant to note Shri Hitesh S. Thakkar and the petitioner had obtained equal marks, but the petitioner was placed below him as Shri Hitesh S. Thakkar was more qualified. 3. After working for some time Shri Hitesh S. Thakkar requested the respondent corporation to revert him to the post of Assistant Engineer. By the Resolution dated 10.10.2007, he was reverted to the post of Assistant Engineer and his name was deleted from the select list. 4. 3. After working for some time Shri Hitesh S. Thakkar requested the respondent corporation to revert him to the post of Assistant Engineer. By the Resolution dated 10.10.2007, he was reverted to the post of Assistant Engineer and his name was deleted from the select list. 4. The petitioner immediately made a representation to the respondent Corporation on 21.11.2007, requesting them to appoint him to the post of Assistant Manager by mentioning that in view of the reversion of Shri Hitesh S. Thakkar and upon deletion of his name from the select list, he should be offered the appointment. 5. Vide letter dated 15.12.2008, the petitioner reiterated his request, but the respondent Corporation did not accede to the same, hence, the petitioner was constrained to approach this court challenging the inaction of Corporation in not offering him appointment to the post of Assistant Manager. 6. Learned advocate Mr. Mishra has stated that it is undisputed fact that the petitioner had obtained 51 marks equivalent to Shri Hitesh S. Thakkar. In view of the fact that appointment of Shri Hitesh S. Thakkar was subsequently canceled and his name was deleted from the select list, the next person i.e. the present petitioner was required to be appointed in the said post. He has also stated that the petitioner was appointed in the service of the respondent Corporation on 21.07.1990, whereas Shri Hitesh S. Thakkar was appointed much thereafter. Mr.Mishra has urged that the action of the respondent Corporation in not appointing the petitioner to the post of Assistant Manager is totally illegal, arbitrary, and violates of Articles 14 and 16 of the Constitution of India. 7. Mr.Chhaya, the learned advocate appearing for the respondent Corporation has not disputed that the name of the petitioner figured in the merit list and Shri Hitesh S. Thakkar and the petitioner, both secured 51 marks. Relying on the affidavit-in-reply filed by the Corporation, he has stated that due to peculiar facts and circumstances of the case the respondent – Corporation had to accommodate 22 existing Assistant Managers working in the Octroi department on abolition of Octroi on 16.11.2007. He has further stated that presently the respondent – Corporation has no need of Assistant Manager. Therefore, the petitioner cannot not be accommodated. He has further stated that presently the respondent – Corporation has no need of Assistant Manager. Therefore, the petitioner cannot not be accommodated. He has stated that the octroi was abolished w.e.f. 16.11.2007, and the State Government had directed to accommodate 22 Assistant Managers working in the Octroi Department, and in view of the direction of the State Government, they had no option but to accommodate them. He has also stated that the life of select list had expired on 19.01.2009 and as the select list/waiting list had already expired, the petitioner is not entitled to any appointment. He has vociferously stated that merely because the name of the selected candidate appears in the select list that would not give any right to such candidate for seeking appointment. In view of the aforesaid peculiar facts of the case, he has stated that the petitioner is not entitled to get any appointment in the said post. 8. I have considered the rival contentions raised by the learned Advocates for the parties to the lis. I have also perused the relevant documents on record. 9. The petitioner had applied for the post of Assistant Manager, and after undergoing the selection process, he secured 51 marks and was placed in select list. On securing 51 marks, he was placed below one Shri Hitesh S. Thakkar, who was appointed on the said post by the Resolution dated 12.02.2007 and after working on the said post for approximately eight months, vide Resolution dated 10.10.2007, upon an application made by him, he was reverted to the post of Assistant Engineer and his name was deleted from the select list. The Resolution dated 10.10.2007 specifically mentions that the appointment of Shri Hitesh S. Thakkar as Assistant Manager is hereby removed from the select list from 10.10.2007. Thus, undoubtedly, name of Shri Hitesh S. Thakkar did not figure in the select list as on 10.10.2007. The next candidate, who could have been offered on the vacant post, would be the present petitioner, as he had secured equivalent marks to that of Shri Hitesh S. Thakkar. It is not the case of the respondent Corporation that thereafter any one, who was highly qualified than the present petitioner, was available in the select list. The only reason for which his appointment is denied is the adjustment of 22 persons of the Octroi Department. It is not the case of the respondent Corporation that thereafter any one, who was highly qualified than the present petitioner, was available in the select list. The only reason for which his appointment is denied is the adjustment of 22 persons of the Octroi Department. This Court fails to understand that how a select/wait list prepared by the respondent – Corporation after undertaking a valid recruitment process, can be tinkered by appointing persons, who are totally alien to the recruitment process. Learned advocate, Mr. Chhaya was unable to point out under which provision of law, circular/resolution the same is done. The petitioner having undergone the valid and legal recruitment process was placed at Sr.No.2 of the waiting list. It is no more res integra that during the life of a select list and waiting list if any vacancy occurs the same is to filled in from the next candidate of the waiting list. In the present case the select list was operative till 19.01.2009. The post of Assistant Manager became vacant on 10.10.2007 due to reversion of Shri Hitesh S. Thakkar during the life of the select list. Though, the petitioner became entitle to be considered for the post of Assistant Manager as on 10.10.2007, he was not offered appointment, but instead giving him appointment, 22 Assistant Managers of the Octroi Department were accommodated, which is highly discriminatory in gross violation of Article 14 of Constitution of India. It is settled law that if a candidate who has undergone a valid selection process and is placed in the merit list, his appointment cannot be scuttled arbitrarily. It is not the case of the Corporation that there were no posts available after the reversion of Shri Hitesh S. Thakkar. 10. The Supreme Court in the case of Gujarat State Deputy Executive Engineers Association Versus State Of Gujarat reported in 1994 (Supp2) SCC 591 has observed thus: “8 Coming to the next issue, the first question is what is a waiting list?; can it be treated as a source of recruitment from which candidates may be drawn as and when necessary?; and lastly how long can it operate? These are some important questions which do arise as a result of direction issued by the High court. These are some important questions which do arise as a result of direction issued by the High court. A waiting list prepared in service matters by the competent authority is a list of eligible and qualified candidates who in order of merit are placed below the last selected candidate. How it should operate and what is its nature may be governed by the rules. Usually it is linked with the selection or examination for which it is prepared. For instance, if an examination is held say for selecting 10 candidates for 1990 and the competent authority prepares a waiting list then it is in respect of those 10 seats only for which selection or competition was held. Reason for it is that whenever selection is held, except where it is for single post, it is normally held by taking into account not only the number of vacancies existing on the date when advertisement is issued or applications are invited but even those which are likely to arise in future within one year or so due to retirement etc. It is more so where selections are held regularly by the Commission. Such lists are prepared either under the rules or even otherwise mainly to ensure that the working in the office does not suffer if the selected candidates do not join for one or the other reason or the next selection or examination is not held soon. A candidate in the waiting list in the order of merit has a right to claim that he may be appointed if one or the other selected candidate does not join. But once the selected candidates join and no vacancy arises due to resignation etc. or for any other reason within the period the list is to operate under the rules or within reasonable period where no specific period is provided then candidate from the waiting list has no right to claim appointment to any future vacancy which may arise unless the selection was held for it. He has no vested right except to the limited extent, indicated above, or when the appointing authority acts arbitrarily and makes appointment from the waiting list by picking and choosing for extraneous reasons”. 11. He has no vested right except to the limited extent, indicated above, or when the appointing authority acts arbitrarily and makes appointment from the waiting list by picking and choosing for extraneous reasons”. 11. In the case of State Of Jammu And Kashmir Versus Sat Pal, AIR 2013 SC 1258 , the Apex Court has held as under: “A waiting list would start to operate only after the posts for which the recruitment is conducted, have been completed. A waiting list would commence to operate, when offers of appointment have been issued to those emerging on the top of the merit list. The existence of a waiting list, allows room to the appointing authority to fill up vacancies which arise during the subsistence of the waiting list. A waiting list commences to operate, after the vacancies for which the recruitment process has been conducted have been filled up” 12. The conspectus of the foregoing observations of the Supreme Court can leave no scintilla of doubt that if a life of a select list is not over and a vacancy occurs during the such period, then a candidate from the waiting list has to be offered appointment if the vacancies are available. In the present case the Corporation has deleted the name of Shri Hitesh S. Thakkar from the select list. Indubitably three aspects are not in dispute, a) life of the select list was not over, b) the vacancy had occurred during its operation, and c) there were vacant posts available. The vacancy had occurred on 10.10.2007 on deletion of name of Shri Hitesh S. Thakkar from select list. If his name was deleted, then the name of petitioner would ipso facto get positioned in place of Shri Hitesh S. Thakkar In wake of said factual scenario, the Corporation was under an obligation to fill the vacancy of one post by appointing the petitioner, instead filling up 22 post from other department. Nothing is shown from the record to suggest that the Corporation has apprised the state government about the select list which was still in operation before filling up 22 posts by other employees. 13. Nothing is shown from the record to suggest that the Corporation has apprised the state government about the select list which was still in operation before filling up 22 posts by other employees. 13. Though, there can be no cavil on the on the proposition of law canvassed by the learned advocate for the respondent Corporation that name in the select list does not confer any right of appointment, but the action of the Corporation must not be susceptible to vice of arbitrariness which is the crux of Art.14 of the Constitution. 14. In the case of State of U.P. v/s. Ramswaroop, reported in 2000 3 SCC 8699, the Supreme Court has held that the relief cannot be denied merely because life of the select list has expired during pendency of litigation. The petitioner has immediately approached this Court by filing the present writ petition challenging the inaction of the Corporation. Thus, the relief sought in the writ petition does not get obliterated by passage of time. 15. In view of the aforesaid proposition of law and foregoing observations, the petitioner is held entitled to be appointed to the post of Assistant Manager. The respondent-Corporation shall consider his case accordingly, and if there is no other reason against the petitioner except what is canvassed before this Court, he shall be appointed to the said post. 16. Apropos, the plea taken by the Respondent-Corporation that the petitioner cannot be appointed because of non-availability of post of Assistant Manager, the same does not merit acceptance since the entire dispute is self created by the Corporation. The petitioner is not appointed due to the fault of the authorities. At this stage it will be pertinent to refer to the observation made by the Apex Court in the case of Satish Rawat v. Union of India and others, reported in AIR 2002 SUPREME COURT 3380 which are as below:- “Respondent No. 3 could not have displaced the appellant but for the order made by the Tribunal. The Tribunal held that on the basis of the records before it, he was entitled to be considered to the exclusion of the appellant. Had complete records been placed before the Tribunal appropriate conclusion could have been drawn. For the mess that arose on appointment of the appellant and not supporting it properly and for appointment of respondent No. 3, the Department is entirely blameworthy. Had complete records been placed before the Tribunal appropriate conclusion could have been drawn. For the mess that arose on appointment of the appellant and not supporting it properly and for appointment of respondent No. 3, the Department is entirely blameworthy. If now respondent No. 3 is displaced by the appellant, he will be uprooted. In the circumstances of the case we think that the appointment of respondent No. 3 as directed by the Tribunal should not be disturbed. However, in the peculiar facts of the case as arise now, it would be proper for the Department to provide a post to the appellant and such post if not available shall be created on supernumerary basis to be absorbed when a regular vacancy arises. However, the appellant shall not be entitled to any monetary benefits for the period he had not worked. He be appointed in the post on the basis he had been originally appointed in 1992 and due benefits of increments be given to him and his payscale should be appropriately fixed on the basis of last pay drawn at the time of his discharge from service.” 17. In light of the preceding observations made by the Apex Court, if no post is available, then the petitioner can be adjusted by creating a supernumerary post of Assistant Manager. His seniority shall be reckoned with effect from 10.10.2007. 18. On the issue of back wages, learned advocate Mr. Chhaya has submitted that the petitioner would not be entitled for any back wages on the principle of “no work no pay”. In the present case it can be seen that predicament before the Corporation was of appointing/accommodating 22 Assistant Managers, in view of the direction of the State Government. The State Government also recommended the respondent Corporation not to remove anybody but to appoint the employees who are already working within the setup of the Corporation. Keeping in mind the observations made by the Supreme Court in the case Satish Ravat(supra) following directions are issued: (a) The respondent-Corporation shall appoint the petitioner to the post of Assistant Manager w.e.f 10.10.2007. His seniority shall be reckoned from 10.10.2007. Such post if not available shall be created on supernumerary basis to be absorbed when a regular vacancy arises. (b) The pay scale of the petitioner shall be fixed in the pay scale of Rs.8000-13500 w.e.f. 10.10.2007 by giving benefits of increments. His seniority shall be reckoned from 10.10.2007. Such post if not available shall be created on supernumerary basis to be absorbed when a regular vacancy arises. (b) The pay scale of the petitioner shall be fixed in the pay scale of Rs.8000-13500 w.e.f. 10.10.2007 by giving benefits of increments. However, the petitioner shall not be entitled to any arrears. 19. The entire exercise as directed above shall be completed within a period of two months from today. 20. Learned advocate, Mr.Chhaya has requested that aforesaid directions of this court may be to put in abeyance. In view of the foregoing observations and considering the facts of the case, the request is declined. The petition is accordingly allowed. Rule is made absolute to the aforesaid extent. (Rule made absolute)