Candidates on a valid waiting list have a right to appointment if vacancies arise during its validity, and arbitrary denial of such appointment violates constitutional rights.

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. 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