IMPORTANT POINT
Whether to fill up a post or not is a policy decision and unless it is shown to be arbitrary it is not open to the Administrative Tribunal to interfere with such decision of the Government and direct it to make further appointments.

Headnote:(i) SERVICE LAW-Jurisdiction of Administrative Tribunal-Whether to fill up a post or not is a policy decision-Unless it is shown to be arbitrary, it is not open to the Tribunal to interfere with such decision of Government and direct it to make further appointments-Merely because there were some vacant posts and Director had recommended to the Government to fill up those posts-It was not open to the Tribunal to direct Government to fill up those posts even though it had good reasons not to do so-If Government decides not to make further appointments for a valid reason-It cannot be said that it has acted arbitrarily by not appointing those whose names are included in selection list-Mere empanelment or inclusion of one s name in selection list does not give him a right to be appointed.
       Held : 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 reason, it cannot be said that it has acted arbitrarily by not appointing those whose names are included in the selection list. Whether to fill up a post or not is a policy decision and unless it is shown to be arbitrary it is not 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 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 posts and are required to be filled up by direct recruitment from open market under Rules 10 and 11 of the Rules. (Para 8)
       (ii) Orissa Government Press Industrial Employees Classification, Recruitment, Promotion, Conditions of Service and Appeal Rules, 1978-Rules 9, 10, 11-Direct recruitment-Selection list not required to be approved by Appointment and Promotion Committee-Selection list once drawn will remain valid for one year-Period of one year starts running from the date on which a selection list is drawn-It was not for the Tribunal to direct the Government to treat selection list as live and in force after expiry of period of one year. (Paras 9, 10)

JUDGMENT

Nanavati, J.-Leave granted.

Heard learned counsel for the parties.

2. 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.

3. 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 Classifcation, 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 as 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 candidate 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 filled up. Out of the 40 candidates who were found eligible for the oral test 37 appeared for the test and out of them 19 were selected for empanelment. On 13.7.1993 a selection list was prepared category wise. Nine candidates were empanelled 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 scheduled 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.

4. 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.

5. 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 in 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 appointmen

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1997 Supreme(SC) 1515

IMPORTANT POINT Whether to fill up a post or not is a policy decision and unless it is shown to be arbitrary it is not open to the Administrative Tribunal to interfere with such decision of the Government and direct it to make further appointments.

IMPORTANT POINT
Whether to fill up a post or not is a policy decision and unless it is shown to be arbitrary it is not open to the Administrative Tribunal to interfere with such decision of the Government and direct it to make further appointments.