ORDER : BIREN VAISHNAV, J. 1. Heard Mr.Maulin Raval learned Senior Advocate with Mr.Hamesh Naidu learned advocate for the appellant and Mr.T.R.Mishra learned advocate for the respondent. 2. Facts of the present case are as under: 2.1 The original 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 filling up the post of Assistant Manager in the grade of Rs.8000-13500. A written examination was conducted for that purpose by the Corporation wherein the original 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 original 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 Corporation eight persons were appointed on probation for a period of one year as Assistant Manager. Thereafter, the 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 original petitioner had obtained equal marks, but the original petitioner was placed below him as Shri Hitesh S. Thakkar was more qualified. 2.2 After working for some time Shri Hitesh S. Thakkar requested the 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. 2.3 The original petitioner immediately made a representation to the 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. 2.4 Vide letter dated 15.12.2008, the original petitioner reiterated his request, but the Corporation did not accede to the same, hence, the original petitioner was constrained to approach this court challenging the inaction of Corporation in not offering him appointment to the post of Assistant Manager and challenged the same by way of Special Civil Application No.2320 of 2009 before the learned Single Judge of this Court. 2.5 This Court vide oral judgement dated 06.09.2017, allowed the petition of the petitioner in the following terms: “15. 2.5 This Court vide oral judgement dated 06.09.2017, allowed the petition of the petitioner in the following terms: “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, 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. 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 pay- scale should be appropriately fixed on the basis of last pay drawn at the time of his discharge from service.” 17. 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 pay- scale 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. 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.” 3. For the reasons stated in paras 9 to 11, it is clear that once the candidate-respondent herein had figured in the list for selection, his right to appointment as held by the learned Single Judge rightly could not be arbitrarily scuttled for the only reason on abolition of octroi department and the consequential exigency to accommodate 22 existing Assistant Managers working in the Octroi Department. Paras 9 to 11 of the judgement of the learned Single Judge read as under: “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, Hitesh S. Thakkar select list as did on not name of Shri figure 10.10.2007. in The 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. This Court fails to understand that how a select/ wait list prepared by the respondent – Corporation after undertaking a valid process, can be tinkered persons, who are totally recruitment process. Learned recruitment by appointing alien to advocate, the 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 19.01.2009. The list post was of operative Assistant till Manager became vacant on 10.10.2007 due to reversion of Shri Hitesh S. Thakkar during the life of the select list. In the present case the select 19.01.2009. The list post was of operative Assistant till 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 State Deputy Court in Executive the case Engineers of Gujarat Association vs. State of Gujarat, 1994 (Supp 2) 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. 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. 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. In the case of State of Jammu and Kashmir vs. 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”. 4. Reliance was placed on the decision of the Supreme Court in case of K. Jayamohan v. State of Kerala, 1997 (5) SCC 170 and judgement in case of Shankarsan Dash Vs. Union of India, 1991 AIR 1612. In this case it is settled that merely a name figuring in the select list would not entitle a candidate a right to appointment. Union of India, 1991 AIR 1612. In this case it is settled that merely a name figuring in the select list would not entitle a candidate a right to appointment. However, in the facts of the present case when the learned Single Judge has held that the right to appointment was curtailed arbitrarily, in our opinion the learned Single Judge committed no error in holding that if the life of the select list is not over and a vacancy occurs during such period, then a candidate from the waiting list has to be offered appointment if vacancies are available. When it was not disputed that the life of the select list was not over and the vacancy had occurred during its operation and vacancies were available, the appellant-Corporation was under an obligation to fill the vacancy. Except for modifying the direction that on appointment on the post of Assistant Manager his seniority shall be reckoned from 06.09.2017 (date of the judgement of the learned single Judge) instead from 10.10.2007, we find no reason to interfere with the order of the learned single Judge. Appeal is accordingly disposed of with the aforesaid modification.