IMPORTANT POINT
A decision on part of an employer whether to fill up existing vacancies or not is within its domain. On this limited ground in absence of discrimination or arbitrariness, a writ court ordinarily would not interfere in such matters.

JUDGMENT

S.B. Sinha, J. —

1. Leave granted.

2. Appellants are before us aggrieved by and dissatisfied with a judgment and order dated 18.07.2006 passed by the Kerala High Court in Writ Appeal Nos.2275, 2527 and 2622 of 2005 affirming the judgment and order dated 7.9.2005 passed by a learned single judge of the said Court.

3. Recruitment to the posts is made by the respondent No. 4 Commission. A requisition was made for filing up of 214 posts. Allegedly, the respondent No.2 approved only 208 posts. 201 vacancies were filled up. Contending inter alia that the Respondent - Cooperative Bank could fill 16 more vacancies, a writ petition was filed. A learned single judge of the High Court opined that having regard to the approved vacancy position, six more vacancies could be filled up and one vacancy having arisen due to non-joining of the same could also be filled up. A direction was, therefore, issued to fill up seven more vacancies. An intra-court appeal was preferred thereagainst, which by reason of the impugned judgment has been dismissed opining :

“The vacancies already stand reported to the Public Service Commission in implementation of the interim order passed on 10.12.2004 and this report shall be deemed to have been in respect of the vacancies occurred before the expiry of the list, limited to the vacancies available. There cannot have any dispute on that. In Ext.P10, the Registrar had approved the staff strength sanctioning only 208 posts of clerk/cashier. Out of that, only 201 are in position. Therefore, there are remaining 7 vacancies. These 7 vacancies shall be taken as, as mentioned above, reported before 31.12.2004 and the candidates shall be advised as if the report had been received before the expiry of the said date, following the appropriate ratio and communal rotation as applicable to the post. As the Public Service Commission had received the report regarding the Non Joining Duty vacancy only on 10.5.2005, they need consider it as one in respect of the vacancies that had arisen after the expiry of the list. When the Registrar had sanctioned only 208 posts, whatever be the resolution in Ext.R4(g) or the contentions raised in the counter affidavit, the bank is disabled from appointing persons any more than what is contained in the order of the Registrar. Moreover, because of the computerization of the branches and other modern facilities introduced in the banking business, necessarily there may be reduction in the number of vacancies. Therefore, the view taken by the learned Single Judge to direct 7 vacancies to be advised, cannot be said to be unjustified to invite interference in these appeals.”

4. Mr. Sree Kumar, learned counsel appearing on behalf of the appellants submits that the High Court committed a serious error in so far it failed to take into consideration that having regard to the decision of the said Court in Elampal Service Coop. Bank Ltd. v. Government of Kerala,1 [2000 (3) KLT 389], approval of Registrar in such matters was not necessary and in any event profitability or otherwise of the Cooperative Bank being not a relevant factor for determining the cadre strength and, thus, the impugned judgment cannot be sustained.

5. Mr. Roy Abhraham; Mr. P.V. Dinesh and Mr. Vipin Nair, lerned counsel appearing on behalf of the Respondent Cooperative Bank, Kerala Public Service Commission and the State of Kerala, on the other hand, submit that the ranked list having expired on 31st December, 2004 the High Court could not have issued any writ on the petition filed by the appellants herein, particularly in view of the fact that the Bank had taken a policy decision not to fill up any other or further post. It was furthermore submitted that in terms of Rule 182 of the Kerala Cooperative Societies Rules, 1969, the approval of the Registrar is imperative.

6. Indisputably requisition was made by the respondent-Bank to the Commission for appointment of 220 clerk-cum-cashier in the Bank. After the processes wer