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"4. In the counter affidavit filed on behalf of the respondents in Civil Appeal No. 915/2000, in paragraph 16 it is stated that the process of selection was cancelled at the last stage, i.e., before publishing the list of selected candidates on the sole ground that the State Government wanted to introduce prohibition and obviously the Government felt that there was no need of Excise Constables during imposition of prohibition in the State. There is serious dispute as to the completion of selection process. According to the appellants, the selection process was not complete. No record has been placed before us to show that the selection process was complete, but, it is not disputed that the select list was not published. In paragraph 16 of the counter affidavit, referred above, the respondents themselves had admitted that the selection process was cancelled at the last stage. In the absence of publication of select list, we are inclined to think that the selection process was not compete. Be that as it may, even if the selection process was complete and assuming that only select list was remained to be published, that does not advance the case of the respondents for the simple reason that even the candidates who are selected and whose names find place in the select list, do not get vested right to claim appointment based on the select list. It was open to the State Government to take a policy decision either to have prohibition or not to have prohibition in the State. Certainly, the Government had right to take a policy decision. If pursuant to a policy decision taken to impose prohibition in the State there was no requirement for the recruitment of constables in the Excise Department, nobody can insist that they must appoint the candidates as Excise Constables. It is not the case of the respondents that there was (sic) malafide on the part of the appellants in refusing the appointment to the respondents after the selection process was compete. The only claim was that the action of the appellants, in not appointing the respondents as Excise Constables, was arbitrary. In the light of the facts that we have stated above, when it was open to the Government to take a policy decision, we fail to understand as to how the respondents can (sic) the action of the respondents as arbitrary, particularly, when they did not have any right as such to claim appointments. In the absence of selection and publication of select list, mere concession or submission made by the learned Government Pleader on behalf of the appellant-State cannot improve the case of the respondents. Similarly such a submission cannot confer right on the respondents, which they otherwise did not have."

(ii) It is also argued on behalf of the respondent that there is no law which bars a probationer from appearing in a selection process of promotion to the higher post and which is a post of Junior Executive (HR) in this case. The argument is sought to be buttressed with the reasoning that even the Recruitment and Promotion Rules of the respondent do not bar the probationers for being considered for appointment by promotion to the higher posts.

4. The issue therefore to be examined and decided in the present case is as to whether probationers have a right to be considered for appointment by promotion to higher posts although the probationary periods do not stand completed at the time of commencement of the selection process being the last date for submission of the applications for being considered for the posts in question.

(underlining is mine)

8. A reference to the aforesaid para of the judgment of the Supreme Court shows that the State does not have a licence to act in an arbitrary manner and the decision not to fill up the vacancies has to be taken for bonafide and appropriate reasons. Therefore one will have to examine in facts of the present case whether germane reasons are given and so argued before me for scrapping of the selection process and in not finalizing the select list although the entire selection process is complete by conduct of the interviews and also otherwise a merit list has been prepared which has not been published.

9. The argument which is argued before this Court of selection process requiring to be scrapped on account of change of rules of the game midway by allowing probationers as valid candidates and also that all eligible probationers in whatever posts employed with the respondent ought to have been considered, is an argument which in my opinion does not give valid and germane reasons for scrapping of the selection process and not finalizing the merit list/select list. I have already held above that probationers cannot be part of a promotion process unless and until the probationary officers stand confirmed as regular/permanent employees. Admittedly, respondent allowed (may be just before the interviews were conducted) probationary officers to be part of the selection process, however, that cannot mean that the entire selection process can be scrapped because all that it means is that probationary officers who were wrongly considered in the process will have to be ousted from the merit list which has to be finalized and the merit list which has to be finalized can in law only be of those employees who participated in the selection process as regular/permanent employees of the respondent. Therefore, there is no reason to scrap the entire selection process and all that is required is that the probationary officers who in the first place could not have been considered in the selection process, cannot be validly considered for the selection process merely because of the circular of the respondent dated 11.1.2013. Therefore, it will suffice to direct the respondent that in the present case the selection process can be completed without at all considering the probationary officers for appointments to the 22 posts of Junior Executive (HR) which are to be filled up by promotion.