STATE OF ORISSA AND ORS. versus BHIKARI CHARAN KHUNTIA AND ORS. ETC.

Citation: [2003] SUPP. 3 S.C.R. 986 · Decided: 22-09-2003 · Supreme Court of India · Bench: DORAISWAMY RAJU · Disposal: Appeal(s) allowed

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Judgment (excerpt)

A 
STATE OF ORISSA AND ORS. 
v. 
BHIKARI CHARAN KHUNTIA AND ORS. ETC. 
SEPTEMBER 22, 2003 
B 
[DORAISWAMY RAJU AND ARIJIT PASAYAT, JJ.] 
Service Law : 
Appointment-Inclusion of name in Merit List/Select List and/or 
C recommended by Employment Exchange-Held, does not corifer indefeasible 
right to appointment if vacancies exist-State under no legal duty to 
fill up all or any of the vacancies-Interference with decision of State-
Held, it is a policy decision and unless arbitrary, no interference 
is required-Decision not to fill up posts has to be taken for proper 
D reasons-In the facts, held, decision not to fill up posts based on proper 
reasons. 
Respondents' names were sponsored by Employment Exchanges 
for filling up 150 posts of Junior Assistants by direct recruitment in 
the cadre of Local Fund Service for appointment in different Munici-
E palities/Notified Area Councils. Respondents filed writ petitions when 
no steps were taken to fill up the said posts, which was allowed by the 
High Court. Hence, these appeals by the State. 
State contended that respondents have no indefeasible right to 
F appointment once their names were called from the employment 
exchanges; and that State took policy decision to abolish Octroi and 
not to make any further appointment by abandoning the process 
initiated through Employment Exchanges to adjust persons rendered 
surplus by abolition of Octroi. 
G 
Respondent contended that several persons were appointed despite 
stand of the State regarding ban on further appointment. 
Allowing the appeals, the Court 
H 
HELD : 1. Candidates whose names appear in the merit list do 
986 
-
ST ATE v. B.C. KHUNTIA 
987 
not acquire indefeasible right of appointment if vacancies exist. The A 
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 State has licence of acting in an arbitrary manner. The decision 
not to fill up the vacancies has to be taken bona fide for proper reasons. B 
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. [991-A-C] 
Shankarsan Dash v. Union of India, [1991] 2 SCR 567, followed. 
All India SC & ST Employees Association and Anr. v. A Arthur Jeen 
and Ors., [2001] 6 SCC 380 and Ludhiana Central Co-operative Bank Ltd 
v. Amrik Singh and Ors., [2003] 6 Supreme 196, relied on. 
c 
2. Whether to fill up or not to fill up a post, is a policy decision D 
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. No selection was made and not 
even any select list was iu existence. Even if there had been any such 
selection or inclusion of any of the names in the select list, same could 
not have given any right. Therefore, mere sending of name by the E 
employment exchange could not have conferred any right. The writ 
applications were thoroughly mis-concieved, and the court mis-di-
rected itself as to the nature of relief to be granted. [991-E, F] 
Government of Orissa through Secretary, Commerce and Transport F 
Department, Bhubaneswar v. Haraprasad Das and Ors., [1998] 1 SCC 
487, relied on. 
3. 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 substantial number of posts to minimize G 
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. [991-G-H, 992-A] 
4. The appointments made in respect of some who got empanelled H 
988 
SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R. 
A 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. [992-A-Bl 
B 
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 7938 -
7940 of 2003 
c 
D 
E 
F 
From the Judgment and Order dated 30.6.2000 of the Orissa High 
Court in O.J.C. Nos 14221/96, 458 and 4091 of 1997. 
WITH 
C.A. Nos. 7941 and 7942 of 2003. 
Mukul Rohatgi, Additional Solicitor General and Radha Shyam Jena 
for t

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