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PETITIONER: GOVERNMENT OF ORISSA THROUGHSECRETARY, COMMERCE & TRANSPORTD

       Vs.

RESPONDENT: SHRI HARAPRASAD DAS & ORS.

DATE OF JUDGMENT:       24/11/1997

BENCH: G.T. NANAVATI, S.P. KURDUKAR

ACT:

HEADNOTE:

JUDGMENT:                THE 24TH DAY OF NOVEMBER, 1997 Present:               Hon’ble Mr. Justice G.T.Nanavati               Hon’ble Mr. Justice S.P.Kurdukar Dinabandhu  Mishra  and  Jana  Kalyan  Das,  Advs.  for  the appellant R.S.Jena, Adv. for the Respondents.                       J U D G M E N T      The following Judgment of the Court was delivered: NANAVATI, J. Leave granted. Heard learned counsel for the parties      This appeal  arises out  of the  order  passed  by  the Orissa Administrative  Tribunal in  O.A. No.346 of 1995. The O.A.  was   filed  by   the  four  respondents  against  the Government  of   Orissa  and   the  Director   of  Printing, Stationery and  Publication for  a declaration that they are entitled  to  be  appointed  as  Copy  Holders  and  for  an appropriate direction to the Government and the Director.      The Orissa  Government is  running a  Press and  in its Production Branch  it has  a Proof  Reading  Section.  Proof Readers  working  in  that  Section  are  assisted  by  Copy Holders. There  were six vacant posts of copy Holders in the Government Press  as on 16.4.1992. They were to be filled up by  direct   recruitment  in   accordance  with  the  Orissa Government  Press   Industrial   Employees   Classification, Recruitment, Promotion,  Conditions of  Service  and  Appeal Rules,  1978  (hereinafter  referred  to  as  the  "Rules"). Accordingly,  the   six  vacant   posts  were   notified  on 16.4.1992.  Out  of  the  large  number  of  applicants  194 candidates were  found eligible  for the  written test.  The written test  was held  on 7.3.1993.  Forty candidates  were found suitable for the oral test. The names were enlisted in order of marks secured by them and also category wise a four posts were  to be  filled up by general category candidates, one post was to be filled up by a scheduled castes candidate and one  was to  be filled  up by  a candidates belonging to scheduled tribes.  Meanwhile  on  26.2.1993  the  Government imposed a  ban effective  from 1.1.1993  to the  effect that 2/3rd of the vacancies of the base level posts should not be

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filled up.  Out of  the 40 candidates wh were found eligible for the  oral test  37 appeared fro the test and out of them 19 were  selected fro  empanelment. On 13.7.1993 a selection list  was  prepared  category  wise.  Nine  candidates  were impanelled in  the general  category and  five each  in  the categories  of   scheduled  castes   and  scheduled  tribes. Respondent Nos.1  to 3  were placed at serial Nos. 5 to 7 in the list  of general category candidates and respondent No.4 was placed  at serial  No.3 in  the list  of schedule castes candidates. On  2.6.1993 the vacant posts had increased to 9 and subsequently  to 15 and, therefore, five posts (1/3rd of 15) were  filled up  according to  their roaster points. The persons who  were appointed were above respondent Nos.1 to 4 in  the   selection  list.  It  appears  that  the  Director thereafter moved the Government to accord permission through the high power committee to fill up the remaining vacancies. the ban  which was imposed by the Government was temporarily lifted on  9.8.1994 and  was  re-imposed  with  effect  from 1.4.1995. In  view of this later development the respondents made representations  from time to time to the Government to fill up  the vacant posts on the basis of the said selection list. As the Government did not accede to their request they approached the Tribunal for the reliefs mentioned above.      The O.A.  was resisted  by the Government on the ground that only  six posts  were notified  and, therefore, no more posts could  be filled up on the basis of the said selection list. It was also the case of the Government that in view of the ban  only five  posts could  have been filled up even if the subsequent  vacancies were  taken into  account. It  was also its  case that  the panel  of selected candidates which was prepared  on 13.7.1993  had  remained  valid  only  till 12.7.1994 in view of Rule 11(v) of the Rules.      The Tribunal  rightly held that the only question which fell for  its consideration  was whether  the selection list was still in force or had expired on 12.7.1994. The Tribunal construed Rules  9, 10  and 11  of the Rules and observed as under:      "Rule 11  is the Chapter-III of the      Rules     which      deals     with      Classifications,       Recruitment,      Promotion  and  Confirmation.  Rule      9(A) provides that the Director who      is the  appointing  authority  with      respect to  non-gazetted Industrial      posts will make appointment to such      posts. He  will be aided and guided      by  a   committee  of  officers  as      proved therein. Clause (B) provides      for functions  of the committee. It      provided that  the committee  shall      meet  occasionally  to  discus  all      matters  relating  to  recruitment,      etc.  Sub-clause   (iii)   of   the      aforesaid   clause   provides   the      appointing authority  will normally      act  upon   recommendation  of  the      Committee  in  exigency  of  public      service, the  appointing  authority      may fill  up posts  in anticipation      of the  sanction of  the appointing      authority   by   recording   proper      reasons. Rule  10 provides that the      committee as well as the appointing      authority will  be  guided  by  the      principles as  laid down therein in

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    matters of  recruitment,  promotion      etc. clause  (A) provides  for  the      general   principles.    Sub-clause      (iii) provides that the recruitment      shall   be    made   trade    wise.      Production wing  is as  branch  and      proof reading  is a  section of the      said   branch.   Sub-clause   (vii)      provides  that  all  posts  in  the      first point  of recruitment  in all      the trades will be filled up by way      of  direct   recruitment   and   as      referred to  above  the  manner  of      recruitment has  been  provided  in      Rule-11. In this context the select      list drawn  will remain  valid  for      one year.  Thus, the  list  is  not      complete unless  it is  approved by      the committee  as  proved  in  Rule      9(B)(iii)     though     appointing      authority may  fill up the posts in      anticipation of the approval of the      committee   by   recording   proper      reasons."      It, therefore,  held that a list of selected candidates will become  valid only after its approval by the Appointing and Promotion  Committee. As  there was nothing to show that the Committee  had approved the said list an inference could be drawn  that the  Committee did not approve it. Therefore, 13.7.1993 cannot  be treated  as the  date  from  which  the period of  one year is to be counted. The Tribunal also held that under  the Rules  there is  no provision  enabling  the State Government  to control  filling up  of vacancies  and, therefore,  period  during  which  the  said  list  remained suspended has to be excluded for the purpose of counting the period of  one year. It also held that the provision made in Rule 11(v)  that the  selection list  once drawn will remain valid for  one year  being a  procedural provision  is  only directory and  not mandatory.  Taking this  view it directed the Government,  that for  the sake  of efficiency of public administration, it  should  fill  up  the  vacant  posts  by appointing candidates  from the  selection list  prepared on 13.7.1993. It  also directed  the Director  of the  Press to obtain permission  of the  Government and after getting such permission to  treat the appointees as probationers from the date of their appointment.      Aggrieved by  the said  directions and the order passed by the Tribunal the State has approached this Court.      It  was  contended  by  the  learned  counsel  for  the appellant-State that  the Tribunal  in giving  the aforesaid directions has  acted beyond  its jurisdiction  and that the said directions are illegal inasmuch as they are contrary to Rule 11 of the Rules. In our opinion the contention deserves to be  accepted. Merely because there were some vacant posts of  Copy   Holders  and   the  Director  of  the  Press  had recommended to  the Government to fill up those posts it was not open to the Tribunal to direct the Government to fill up those posts even though it had good reasons not to do so. It should have  been appreciated  by  the  Tribunal  that  mere empanelment or inclusion of one’s name in the selection list does not  give him  a right  to be appointed. So also if the Government decides  not to  make further  appointments for a valid  reasons,   it  cannot  be  said  that  it  has  acted arbitrarily by  not appointed those whose names are included in the selection list. Whether to fill up a post or not is a

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policy decision and unless it is shown to be arbitrary it is open to  the Tribunal to interfere with such decision of the Government and  direct it  to make further appointments. The Tribunal  in   directing  the  Government  to  make  further appointments   on    the   efficiency   ground   of   public administration went  beyond its  jurisdiction. While  giving such a  direction what the Tribunal failed to appreciate was that the  decision of  the Government  not to  make  further appointments was  not challenged  as arbitrary  and  it  was challenged only on two grounds viz : (1) In between 9.8.1994 and  13.1.1995   there  was   no  ban  and,  therefore,  the Government could  have  appointed  the  respondents  on  the vacant posts and (2) The Government had made appointments in the same Press from out of a panel of Distributors, Binders, Type Suppliers,  etc. which  was prepared about 7 years back and, therefore,  the Government had meted out discriminatory treatment to  the respondents. The Tribunal did not find the action of  the Government discriminatory possibly because as pointed out  by the  State in  its counter  filed before the Tribunal the  selection  list,  prepared  for  Distributors, Binders, Type  Suppliers, was  of  a  different  nature  and character as  it was  prepared on  the basis of a trade test which was  confined to the in-service employees eligible for promotion to  those posts under Rule 17 of the Rules. It may be recalled  at this stage that the posts of Copy Holders in the Government  Press are  base level class-III post and are required to  be filled  up by  direct recruitment  from open market under Rule 10 and 11 of the Rules.      We also  find  that  the  Tribunal  has  not  correctly construed Rules  9, 10  and 11  of the  Rules. Rule  9 which refers to  the Committee  is the  Appointment and  Promotion Committee which  has to deal with promotions and recruitment of only  in-service employees.  Rule 9  and 10 of the Orissa Government Recruitment  Rules, 1978 deal with recruitment of in-service employees  and promotion  of employees;  and,  in respect of  the recruitment  and promotion of such employees the Appointment  and Promotion  Committee has a role to play but in  cases of direct recruitment from the open market the Appointment and  Promotion Committee  does not  come to  the picture at  all and,  therefore, the  Tribunal was  wrong in holding  that   the  selection   list  prepared  for  direct recruitment from  open market was required to be approved by the said  Committee and  it could  become a  valid selection list only  after its  approval by  the said  Committee.  The Tribunal also  failed to  appreciate that  if the  selection list was  not  valid  since  it  was  not  approved  by  the Committee then  it could  not have  conferred any  right  in favour of  those who  were included  in the said list and it would not be legal to make appointments of those included in such an invalid list.      Rule 11(V)  of the Rules does not speak of any approval by the  Appointment and  Promotion Committee.  Moreover,  it does not  prove that  it will remain valid for one year from the date of approval by such Committee. The language used in the Rule  is very  clear and  admits  of  no  ambiguity.  It provides that  selection list  once drawn  will remain valid for one  year. What  the Tribunal  failed to  appreciate was that the  significance of  word "drawn"  used  in  the  said Rules. Therefore,  according to  the Rules the period of one year starts running from the date one which a selection list is drawn.  Admittedly, in  this case  the selection list was drawn up  on 13.7.1993  to, therefore, expired on 12.7.1994. The Government  , therefore, was justified in not making any further appointment  from the said list after 12.7.1994. The Tribunal  in   directing  the  Government  to  make  further

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appointments from  the  said  dead  list  has  committed  an illegality in exercise of its jurisdiction. Even if the said Rule is  treated as  directory and not mandatory, it was not for the  Tribunal to  direct the  Government to  treat it as ’live’ and  in force  and to  make further appointments from the list.      As we find that the view taken by the Tribunal is wrong and the  directions given  by it  are not  legal the  orders passed by  its is  quashed and  set aside.  This  appeal  is allowed accordingly with no order as to costs.