Government
of Orissa Throughsecretary, Commerce & Transport Vs. Shri Haraprasad Das
& Ors [1997] INSC 847 (24 November 1997)
G.T.
NANAVATI, S.P. KURDUKAR
ACT:
HEADNOTE:
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.
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 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 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 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
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.
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