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. 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 Oc