STATE OF ORISSA AND ORS.versusBHIKARI CHARAN KHUNTIA AND ORS. ETC.

A                        STATE OF ORISSA AND ORS.
                                      v.



                                                                              -
              BHIKARI CHARAN KHUNTIA AND ORS. ETC.

                            SEPTEMBER 22, 2003

B           [DORAISWAMY RAJU AND ARIJIT PASAYAT, JJ.]

         Service Law :

        Appointment-Inclusion of name in Merit List/Select List and/or
C recommended by Employment Exchange-Held, does not corifer indefeasible
  right to appointment if vacancies exist-State under no legal duty to
  fill up all or any of the vacancies-Interference with decision of State-
   Held, it is a policy decision and unless arbitrary, no interference
   is required-Decision not to fill up posts has to be taken for proper
D reasons-In the facts, held, decision not to fill up posts based on proper
   reasons.

          Respondents' names were sponsored by Employment Exchanges
    for filling up 150 posts of Junior Assistants by direct recruitment in
    the cadre of Local Fund Service for appointment in different Munici-
E   palities/Notified Area Councils. Respondents filed writ petitions when
    no steps were taken to fill up the said posts, which was allowed by the
    High Court. Hence, these appeals by the State.

         State contended that respondents have no indefeasible right to
F appointment once their names were called from the employment
    exchanges; and that State took policy decision to abolish Octroi and
    not to make any further appointment by abandoning the process
    initiated through Employment Exchanges to adjust persons rendered
    surplus by abolition of Octroi.
G        Respondent contended that several persons were appointed despite
    stand of the State regarding ban on further appointment.

         Allowing the appeals, the Court

H        HELD : 1. Candidates whose names appear in the merit list do
                                 986
                      STATE v. B.C. KHUNTIA                          987

not acquire indefeasible right of appointment if vacancies exist. The A
State is under no obligation to fill up all or any of the vacancies, unless
the relevant recruitment rules so indicated. Though, the State is under
no legal duty to fill up all or any of the vacancies, it does not mean
that State has licence of acting in an arbitrary manner. The decision
not to fill up the vacancies has to be taken bona fide for proper reasons. B
If vacancies or any of them are filled up, the State is bound to respect
the comparative merit of candidates as reflected in the recruitment test
and no discrimination can be permitted. [991-A-C]

     Shankarsan Dash v. Union of India, [1991] 2 SCR 567, followed.
                                                                           c
     All India SC & ST Employees Association and Anr. v. A Arthur Jeen
and Ors., [2001] 6 SCC 380 and Ludhiana Central Co-operative Bank Ltd
v. Amrik Singh and Ors., [2003] 6 Supreme 196, relied on.

     2. Whether to fill up or not to fill up a post, is a policy decision D
and unless it is arbitrary, the High Court or the Tribunal has no
Jurisdiction to interfere with such decision of the Government and
direct it to make further appointments. No selection was made and not
even any select list was iu existence. Even if there had been any such
selection or inclusion of any of the names in the select list, same could
not have given any right. Therefore, mere sending of name by the E
employment exchange could not have conferred any right. The writ
applications were thoroughly mis-concieved, and the court mis-di-
rected itself as to the nature of relief to be granted. [991-E, F]

    Government of Orissa through Secretary, Commerce and Transport F
Department, Bhubaneswar v. Haraprasad Das and Ors., [1998] 1 SCC
487, relied on.

      3. The reasons which persuaded the Government to absorb those
who were rendered surplus on account of abolition of Octroi and the
decision taken to abolish substantial number of posts to minimize G
expenditure cannot be said to be either extraneous or irrelevant for the
purpose, to be ignored by the Court in according relief to the writ
petitioners. [991-G-H, 992-A]

     4. The appointments made in respect of some who got empanelled H
    988                  SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.
A on regular selections made by the recruitment Board pursuant to the
    selection process undertaken does not give any sustenance to the writ
    petitioners to claim parity of treatment when their claims cannot be
    equated to those of such empanelled candidates. [992-A-Bl

B       CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 7938 -
    7940 of 2003

         From the Judgment and Order dated 30.6.2000 of the Orissa High
    Court in O.J.C. Nos 14221/96, 458 and 4091 of 1997.

c                                       WITH

          C.A. Nos. 7941 and 7942 of 2003.

          Mukul Rohatgi, Additional Solicitor General and Radha Shyam Jena
    for the Appellants.
D
          B.A. Mohanti, Ms. M. Tripathy and Ashok Mathur for the respondents.

          The Judgment of the Court was delivered by

          ARIJIT PASAYAT, J.: Leave Granted.
E
          Since by common judgment learned Single Judge of the Orissa High
    Court disposed of three writ petitions (0.J.C. Nos. 14221 of 1996, 458 of
    1997 and 4091 of 1997), impugned in these appeals, the present judgment
    shall govern each one of them.
F         Factual position, almost undisputed, is as follows :

        Respondents filed writ petitions before the Orissa High Court taking
  the stand that their names were sponsored by the concerned employment
  exchanges. When requisitions were sent to them by competent functionaries
G of the State their names were sponsored. The requisition indicated that 150
  posts of Junior Assistants were to be filled up by direct recruitment in the
  cadre of Local Fund Service for appointment in different Municipalities/
  Notified Area Councils (for short 'N.A.Cs'). The proforma attached to the
  requisition letter in question indicated the types of workers required as
H Junior Assistants in the cadre of Local Fund Service and the minimum
                   STATE v. B.C. KHUNTJA [PASAYAT, J.]                       989

    qualifications for the post was H.S.C. It was also indicated in the requisition A
    that preference will be given to those who have passed Local Self
    Government Diploma Examination. Writ petitioners by writ applications
•   under Article 226 of the Constitution of India, 1950 (in short the
    'Constitution') made grievance before the High court that through their
    names were sponsored by the employment exchanges, no interview was B
    conducted and no action was taken to fill up the posts. Prayers in the writ
    petitions were as follows :

             "(i) issue a writ of mandamus directing the opposite parties to
             complete the recruitment process and select the petitioners for
             appointment as Junior Assistants in Municipalities/N.A.Cs. and C

             (ii) pass such other orders as may be deemed fit and proper in the
             facts and circumstances of the case."

          The State of orissa filed counter affidavit, inter alia, taking the stand D
    that the selection could not be held as the vacancy position of all urban
    local bodies could not be specifically ascertained. It was also stated that
    the vacancies assessed had been found already filled up through irregular
    promotions and appointments made by the respective local bodies.
    Accordingly instructions were issued to revert/retrench all such irregular
    appointees or promotees. Further counter affidavit was filed indicating that E
    the Gover.iment took a decision abolishing 50% base level posts as on
    1.7.1999. It was also indicated that w.e.f. 30.11.1999 policy decision was
    taken to abolish octroi and 3400 persons who were rendered surplus to be
    adjusted. The number included a large numeber of clerical staff also. As
    there was no scope for further appointment, the process which was initiated F
    by getting names from the employment exchanges was abandoned. After
    considering the rival stands, the High Court by the impugned judgment
    gave the following directions :

                    "Considering the submission of the learned counsel for the G
              petitioners in the three writ petitions, and submission of the
              learned Standing Counsel and the averments made in para-6 of
              the counter, it is directed that the opposite parties shall hold
              interview for selection of candidates for appointment to the posts
              of Junior Assistants in the cadre of Local Fund service within a
            . period of three months from today. While preparing the merit list, H
    990                   SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.

A            preference will be given to the candidates who have passed Local
             Self Government Diploma.

                   It is contended by Mr. Das that some petitioners have
             become overaged in the meantime for appointment. It appears
             from Annexure-4 that instructions were sponsored by the Employ-
B
             ment Exchange and some directly applied for the post, but till
             today no interview has been conducted. Keeping in view the said
             fact in my opinion, the authorities shall also consider age of the
             petitioners who are found to be overaged. It is further directed that
             after preparation of merit list, appointment shall be made depend-
c            ing on the availability of vacancies."

          In support of the appeals, learned counsel for the Appellant-State
    submitted that the High Court proceeded as if writ petitioners had
    indefeasible right for getting appointment once their names were called for
D   from the employment exchanges. It is a settled position in law that even
    after a candidates' name is empanelled, no right is conferred on him. When
    the State took conscious decision not to pursue further action to make any
    further appointment particularly keeping in view to adjust persons who
    have rendered surplus by abolition of the octroi, there was no scope for
E   the High Court to direct in the manner done.

          In response, learned counsel for the writ petitioners-respondents
    submitted that a hope was kindled in the hearts of the unemployed
    applicants when their names were sponsored by the employment exchange.
    Instead of pursuing the process, appointments were done clandestinely and
F   finally after a long lapse of time the process was claimed to have been
    abandoned. It is pointed out that though the stand of the State is ban on
    further appointment, and/or decision not to appoint persons, in fact, several
    persons have been appointed in various local bodies. It is submitted that
    the High Court took a view in equity taking into account plight of the
G   unemployed applicants. This is not a case where the jurisdiction under
    Article 136 of the Constitution should be exercised. Learned counsel for
    the appellant-State submitted that the instances referred to by the respondents
    do not have any bearing. Regular recruitment examinations were held in
    the year 1996 and result was published in June, 2000 and the list was
H   revalidated. Out of 32 posts, 13 appointments were under Rehabilitation
               STATE v. B.C. KHUNTIA [PASA YAT, J.]                      991

Assistance Scheme. That being the position, no assistance is available to A
the writ petitioners-respondents.

      A Constitution Bench of this Court in Shankarsan Dash v. Union of
India, [1991] 2 SCR 567 held that candidates whose names appear in the
merit list do not acquire indefeasible right of appointment if vacancies B
exist. The State is under no obligation to fill up all or any of the vacancies,
unless the relevant recruitment rules so indicated. Though, the State is
under no legal duty to fill up all or any of the vacancies, it does not mean
that State has licence of acting in an arbitrary manner. The decision not
to fill up the vacancies has to be taken bona fide for proper reasons. If
vacancies or any of them are filled up, the State is bound to respect the C
comparative merit of candidates as reflected in the recruitment test and no
discrimination can be permitted. This position was reiterated in All India
SC & ST Employees Association and Anr. v. A Arthur Jeen and Ors.,
(2001) 6 SCC 380 and Ludhiana Central Co-operative Bank Ltd. v. Amrik
Singh and Ors., (2003) 6 Supreme 196.                                           D
       As was observed by this Court in Government of Orissa through
Secretary, Commerce and Transport Department, Bhubaneswar v.
Haraprasad Das and Ors., [1998] I SCC 487, whether to fill up or not
to fill up a post, is a policy decision and unless it is arbitrary, the High E
Court or the Tribunal has no jurisdiction to interfere with such decision
of the Government and direct it to make further appointments. In the
present case, even no selection was made and not even any select list was
in existence. Even if there had been any such selection or inclusion of any
of the names in the select list, same could not have given any right. F
Therefore, mere sending of name by the employment exchange could not
have and in fact has not conferred any right. The writ applications were
thoroughly mis-conceived, and the court mis-directed itself as to the nature
of relief to be granted.

      It cannot be lost sight of that because of certain circumstances and G
policy decision which were also brought to the notice of the High Court,
appointments could not be made. The reasons which persuaded the
Government to absorb those who were rendered surplus on account of
abolition of octroi and the decision taken to abolish substantial number of
posts to minimize expenditure cannot be said to be either extraneous or H
    992                   SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.
A irrelevant for the purpose, to be ignored by the Court in according relief
    to the writ petitioners. But the High Court notwithstanding chose to give
    directions as quoted above. The appointments made in respect of some who
    got empanelled on regular selections made by the recruitment Board
    pursuant to the selection process undertaken does not give any sustenance
B   to the writ petitioners to claim parity of treatment when their claims cannot
    be equated to those of such empanelled candidates.

          In view of legal position highlighted above, the decision of the High
    Court is clearly unsustainable and is set aside. The appeals are allowed.
    Parties to bear their respective costs.
c
    A.KT.                                                     Appeals allowed.




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