- Bookmark
- Share
- CaseIQ
State Of Orissa And Others v. Bhikari Charan Khuntia And Others
Factual and Procedural Background
The respondents had their names sponsored by the relevant Employment Exchanges in response to a government requisition for filling 150 posts of Junior Assistants in the Local Fund Service for various Municipalities/Notified Area Councils in the State of Orissa. The minimum educational qualification was HSC, with preference for candidates holding the Local Self-Government Diploma.
Alleging that no interviews were conducted and the recruitment process was stalled, the respondents filed three writ petitions (OJCs Nos. 14221 of 1996, 458 and 4091 of 1997) before the Orissa High Court seeking a mandamus directing completion of the recruitment and their consequential appointment.
The State, in its counter-affidavit, asserted that:
- Exact vacancy position could not be finalised because several posts had already been filled through irregular promotions/appointments by local bodies.
- Government decisions later abolished 50% of base-level posts (effective 1-7-1999) and abolished octroi (30-11-1999), rendering about 3400 employees surplus who had to be absorbed first.
- Given these policy changes, the earlier recruitment exercise was abandoned.
The High Court nevertheless directed the State to conduct interviews within three months, prepare a merit list giving diploma-holders preference, relax age for over-aged petitioners, and make appointments subject to vacancies. The State of Orissa appealed to the Supreme Court, which consolidated the three matters into the present judgment.
Legal Issues Presented
- Whether candidates whose names were merely sponsored by Employment Exchanges acquire an enforceable right to be interviewed and appointed.
- Whether the High Court could compel the State to continue a recruitment process that the Government had abandoned pursuant to bona fide policy decisions on post abolition and surplus staff absorption.
Arguments of the Parties
Appellant State of Orissa
- Sponsorship by an Employment Exchange does not confer an indefeasible right to appointment; even empanelled candidates have no such right.
- The Government took a conscious, bona fide policy decision to freeze recruitment because surplus employees had to be absorbed after abolition of octroi and 50% base-level posts.
- The High Court exceeded its jurisdiction in directing recruitment contrary to this policy decision.
Respondent (Writ Petitioners)
- Sponsorship created a legitimate expectation; the State’s abandonment of recruitment after a prolonged delay was arbitrary and inequitable.
- Despite professed bans, appointments were allegedly made clandestinely in various local bodies, showing discriminatory treatment.
- The High Court appropriately exercised equitable jurisdiction under Article 226; Supreme Court should not interfere under Article 136.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Shankarsan Dash v. Union of India (1991) 3 SCC 47 | Inclusion in a merit list does not create an indefeasible right to appointment; State is not obliged to fill vacancies unless rules so require. | Relied on to hold that mere sponsorship (or even empanelment) does not create a right; State may choose not to fill posts for bona fide reasons. |
| All India SC & ST Employees' Assn. v. A. Arthur Jeen (2001) 6 SCC 380 | Reiteration of Shankarsan Dash principles regarding non-creation of appointment rights by listing. | Cited to reinforce absence of enforceable right where Government decides not to recruit. |
| Ludhiana Central Coop. Bank Ltd. v. Amrik Singh (2003) 10 SCC 136 | Further affirmation that inclusion in select list does not guarantee appointment. | Used to bolster the State’s stance and invalidate High Court’s directions. |
| Govt. of Orissa v. Haraprasad Das (1998) 1 SCC 487 | Whether to fill a post is a policy decision immune from court interference unless arbitrary. | Applied to conclude that High Court lacked jurisdiction to compel recruitment contrary to State policy. |
Court's Reasoning and Analysis
The Supreme Court held that no selection had been conducted and no select list existed; even if such a list had existed, it would not vest a right to appointment. Sponsorship by Employment Exchanges is an initial administrative step that creates neither legal entitlement nor legitimate expectation enforceable in court.
Drawing on Shankarsan Dash and subsequent cases, the Court reiterated that the State has discretion, subject to non-arbitrariness, to decide whether or not to fill vacancies. The Government’s decisions to abolish octroi, reduce base-level posts, and adjust 3400 surplus employees were found to be bona fide policy measures prompted by fiscal considerations. These reasons were neither extraneous nor irrelevant and therefore could not be disregarded.
The High Court erred by assuming an indefeasible right in the petitioners and by issuing mandatory directions overriding a lawful policy determination. Alleged stray appointments made through regular recruitment examinations or under the Rehabilitation Assistance Scheme did not create a right to parity for the writ petitioners, as their positions were not comparable.
Holding and Implications
Decision: The appeals were allowed; the judgment of the Orissa High Court directing interviews and appointments was set aside.
Implications: The decision leaves the petitioners with no enforceable right to recruitment and affirms the State’s discretion to abandon or defer filling vacancies for bona fide policy reasons. The ruling does not establish new legal principles but reinforces existing jurisprudence on the limited rights of candidates and judicial deference to governmental staffing policies.
Arijit Pasayat, J.— Leave granted.
2. Since by common judgment the learned Single Judge of the Orissa High Court disposed of three writ petitions (OJCs Nos. 14221 of 1996, 458 and 4091 of 1997), impugned in these appeals, the present judgment shall govern each one of them.
3. The factual position, almost undisputed, is as follows:
The respondents filed writ petitions before the Orissa High Court taking the stand that their names were sponsored by the employment exchanges concerned. When requisitions were sent to them by competent functionaries 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 “NACs”). The pro forma attached to the requisition letter, in question, indicated the types of workers required as Junior Assistants in the cadre of Local Fund Service and the minimum qualification for the post was HSC. It was also indicated in the requisition that preference will be given to those who have passed Local Self-Government Diploma Examination. The 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 though their names were sponsored by the employment exchanges, no interview was 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/NACs, and
(ii) pass such other orders as may be deemed fit and proper in the facts and circumstances of the case.”
4. The State of Orissa filed a counter-affidavit, inter alia, taking the stand 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 the Government 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 were to be adjusted. The number included a large number of clerical staff also. As there was no scope for further appointment, the process which was initiated 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 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, 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 employment 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 the age of the petitioners who are found to be overaged. It is further directed that after preparation of the merit list, appointment shall be made depending on the availability of vacancies.”
5. In support of the appeals, the learned counsel for the appellant State submitted that the High Court proceeded as if the writ petitioners had indefeasible right for getting appointment once their names were called for from the employment exchanges. It is a settled position in law that even after a candidate's name is empanelled, no right is conferred on him. When the State took a conscious decision not to pursue further action to make any further appointment, particularly keeping in view the need to adjust persons who were rendered surplus by abolition of the octroi, there was no scope for the High Court to direct in the manner done.
6. In response, the learned counsel for the writ petitioner 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 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 a 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 the plight of the unemployed applicants. This is not a case where the jurisdiction under Article 136 of the Constitution should be exercised. The 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 revalidated. Out of 32 posts, 13 appointments were under the Rehabilitation Assistance Scheme. That being the position, no assistance is available to the writ petitioner respondents.
7. A Constitution Bench of this Court in Shankarsan Dash v. Union of India (1991) 3 SCC 47, (1991) 17 ATC 95, (1991) 2 SCR 567 held that candidates whose names appear in the merit list do not acquire indefeasible right of appointment if vacancies 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 the State has a 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 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' Assn. v. A. Arthur Jeen (2001) 6 SCC 380 and Ludhiana Central Coop. Bank Ltd. v. Amrik Singh (2003) 10 SCC 136, (2003) 6 Supreme 196.
8. As was observed by this Court in Govt. of Orissa v. Haraprasad Das (1998) 1 SCC 487 whether to fill up or not to fill up a post, is a policy decision 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. In the present case, 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, the same could not have given any right. Therefore, mere sending of names by the employment exchange could not have, and in fact, has not conferred any right. The writ applications were thoroughly misconceived, and the Court misdirected itself as to the nature of relief to be granted.
9. It cannot be lost sight of that because of certain circumstances and 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 a substantial number of posts to minimize 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. 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 to the writ petitioners to claim parity of treatment when their claims cannot be equated to those of such empanelled candidates.
10. In view of the 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.
Alert