TN GOMs_44_T2_2015_0.pdf
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 09.06.2014
CORAM
THE HONOURABLE MR. JUSTICE N.PAUL VASANTHAKUMAR
and
THE HONOURABLE MR. JUSTICE M.SATHYANARAYANAN
Writ Appeal No.1027 of 2013
and
M.P.No.1 of 2013
1.The Commissioner,
Department of Employment and Training,
Alandur Road, Guindy,
Chennai-600 032.
2.The District Collector,
Cuddalore.
3.The District Employment Officer,
Cuddalore.
4.The Tahsildar,
Tittagudi Taluk, Cuddalore District. ... Appellants
Vs
K.P.Jaganathan ... Respondent
Prayer:- Writ appeal filed under Clause 15 of the Letters Patent, against the order, dated 02.08.2012, made in W.P.No.26162 of 2010.
For Appellant :Mr.V.Subbiah,
Spl. Govt. Pleader.
For Respondent :No appearance.
J U D G M E N T
(Judgment of
the Court was delivered by N.PAUL VASANTHAKUMAR,J.) This writ appeal is filed
against the order made in W.P.No.26162 of 2010, dated 02.08.2012, wherein the
respondent has prayed for a Writ of Declaration, declaring that the
recruitment/selection process initiated by the fourth appellant in the year
2010 to fill up 25 vacancies of Village Assistant by seeking sponsorship of
names from the office of the third respondent alone, pursuant to G.O.Ms.No.429,
Revenue Department, dated 08.08.2007, without making wide publicity by way of
advertisement in dailies, notice board, internet, etc. by inviting application
from all eligible persons of general public to participate and secure public
employment, is illegal, arbitrary, unconstitutional, and violative of Article
14 of the Constitution of India.
2. The case of
the respondent before the learned single Judge was that he had studied up to
10th standard and belong to Scheduled Caste community and registered his name
in the District Employment Office, Cuddalore in the year 1985, which was also
renewed and his name is in the live register and he is one among the unemployed
youth waiting for suitable employment in any one of the department in
Government/Quasi-Government or Local Bodies. The respondent name was sponsored
by the 3rd appellant for the post of Village Assistant in the year 2007. He
along with 320 persons appeared for interview before the office of the 4th
appellant on 27.4.2007, however, he was not selected. The reason for
non-selection was not informed to the respondent. According to the respondent,
even though 40 vacancies were available, only 8 persons were given appointment
due to extraneous reasons.
3. Further
case of the respondent is that in the year 2010, 25 vacancies were available
for the post of Village Assistant under the jurisdiction of the 4th appellant
and a list was sought for from the employment office of the 3rd appellant. The
said recruitment process initiated by the 4th appellant was challenged by the
respondent by filing writ petition in W.P.No.26162 of 2010 to declare that the
recruitment/selection process initiated by the 4th appellant in the year 2010
by seeking sponsorship of names from the office of the 3rd appellant alone
without making wide publicity by way of advertisement in dailies, notice board,
internet, etc. is unconstitutional, arbitrary and violative of Article
14 of the Constitution of India.
4. The said
writ petition was resisted by the appellants by contending that as per
G.O.Ms.No.65 Labour and Employment Department, dated 30.3.2007, for filling up
of any vacancy in any employment in Government Department, Local Bodies (Urban
and Rural), Co-operative Institutions, Public Sector Undertakings, all
Government Aided Educational Institutions and Government Aided Engineering
Colleges and Polytechnics etc., a list of candidates shall be called for in the
ratio of 1 : 1 based on employment seniority whose names are in the live
register and in respect of certain post ratio 1 : 5 was ordered to be followed
and the said procedure is being followed in terms of Employment
Exchanges (Compulsory Notification of Vacancies) Act, 1959 and there
is no illegality in the procedure being followed.
5. The learned
single Judge allowed the writ petition by following the various decisions of
the Hon'ble Supreme Court and having aggrieved, the appellants have filed this
writ appeal.
6. Heard
Mr.V.Subbiah, learned Special Government Pleader appearing for the appellants.
7. The issue
as to whether for employment in public services, whether the department can
restrict the candidates sponsored through the employment exchange for
selection, was also considered by the Hon'ble Supreme Court in the decision
reported in (1996) 6 SCC 216 [Excise Superintendent, Malkapatnam, Krishna
District, A.P. v. K.B.N.Visweshwara Rao and others]. The said decision was
rendered by the Hon'ble Supreme Court of India bearing in mind the Employment
Exchanges (Compulsory Notification of Vacancies) Act, 1959,
particularly, Section 4(1) of the said Act. In the said
decision, the Hon'ble Supreme Court (Three Judge Bench), in Paragraph 6, held
thus:-
6. ..... It is
common knowledge that many a candidate is unable to have the names sponsored,
though their names are either registered or are waiting to be registered in the
employment exchange, with the result that the choice of selection is restricted
to only such of the candidates whose names come to be sponsored by the
employment exchange. Under these circumstances, many a deserving candidate is
deprived of the right to be considered for appointment to a post under the
State. Better view appears to be that it should be mandatory for the
requisitioning authority/establishment to intimate the employment exchange, and
employment exchange should sponsor the names of the candidates to the
requisitioning departments for selection strictly according to seniority and
reservation, as per requisition. In addition, the appropriate department or
undertaking or establishment should call for the names by publication in the
newspapers having wider circulation and also display on their office notice
boards or announce on radio, television and employment news bulletins; and then
consider the cases of all the candidates who have applied. If this procedure is
adopted, fair play would be subserved. The equality of opportunity in the
matter of employment would be available to all eligible candidates.
8. Again the
said issue came up for consideration before the Hon'ble Supreme Court in the
decision reported in (2003) 10 SCC 276 [Suresh
Kumar and others v. State of Haryana and others] in respect of
recruitment of 1600 Police Constables in the State of Haryana. In the said
case, selection of candidates made were not disturbed till the new process was
over as directed by the Hon'ble Supreme Court and it was held that no
advertisement to the newspaper nor employment exchange was intimated for
filling up of the vacancies and further selection was ordered to be conducted
by issuing re-advertisement calling for application to fill up those vacancies.
9. In the
decision reported in (2011) 3 SCC 436 [State
of Orissa v. Mamata Mohanty], the same issue came up for
consideration and in Paragraphs 35 and 36, it was held thus:-
35. At one
time this Court had been of the view that calling the names from employment
exchange would curb to certain extent the menace of nepotism and corruption in
public employment. But, later on, it came to the conclusion that some
appropriate method consistent with the requirements of Article
16 should be followed. In other words there must be a notice
published in the appropriate manner calling for applications and all those who
apply in response thereto should be considered fairly. Even if the names of
candidates are requisitioned from employment exchange, in addition thereto it
is mandatory on the part of the employer to invite applications from all
eligible candidates from the open market by advertising the vacancies in
newspapers having wide circulation or by announcement in radio and television
as merely calling the names from the employment exchange does not meet the requirement
of the said article of the Constitution. (Vide Delhi Development Horticulture
Employees Union v. Delhi Admn., (AIR 1992 SC 789), State
of Haryana v. Piara Singh AIR 1992 SC 2130), Excise Supdt. v. K.B.N. Visweshwara Rao ((1996) 6 SCC
216), Arun Tewari v. Zila Mansavi Shikshak Sangh (AIR
1996 SC 331), Binod Kumar Gupta v. Ram Ashray Mahoto (AIR
2005 SC 2103), National Fertilizers Ltd. v. Somvir Singh (AIR
2006 SC 2319), Telecom District Manager v. Keshab Deb ((2008)
8 SCC 402),State of Bihar v. Upendra Narayan Singh ((2009)
5 SCC 65) and State of M.P. v. Mohd. Abrahim((2009) 15 SCC
214)
36. Therefore,
it is a settled legal proposition that no person can be appointed even on a
temporary or ad hoc basis without inviting applications from all eligible
candidates. If any appointment is made by merely inviting names from the
employment exchange or putting a note on the noticeboard, etc. that will not
meet the requirement of Articles 14 and 16 of the Constitution. Such a course
violates the mandates of Articles 14 and 16 of the Constitution of India as it
deprives the candidates who are eligible for the post, from being considered. A
person employed in violation of these provisions is not entitled to any relief
including salary. For a valid and legal appointment mandatory compliance with
the said constitutional requirement is to be fulfilled. The equality clause
enshrined in Article 16 requires that every such
appointment be made by an open advertisement as to enable all eligible persons
to compete on merit.
10. This
Court, in the decision reported in (2012) 3 MLJ 669 [P.M.Malathi
v. State of Tamil Nadu] held that any Rule of the State Government
restricting the right of consideration of the eligible candidates for public
appointment is unconstitutional as it is violative of Articles 14 and 16 of the
Constitution of India.
11. The
learned single Judge has followed the above said decisions and held that
selecting persons in public employment, on the basis of the list of candidates
sponsored by the Employment Exchange alone, is in violation of Articles 14 and
16 of the Constitution of India, as it denies opportunity to all the eligible
persons to participate in selection in public employment.
12. The
learned Special Government Pleader argued to set aside the order of the learned
single Judge by contending that the appellants have followed the procedure by
inviting a list from the Employment Exchange in terms of Employment Exchange
(Compulsory Notification of Vacancies) Act, 1959 and the said procedure is
being followed for all these years and the learned single Judge was not right
in allowing the writ petition filed by the respondent.
13. It is
pertinent to note that no contra decision rendered by the Hon'ble Supreme Court
was cited by the learned Special Government Pleader to set aside the order of
the learned single Judge.
14. It is also
relevant, at this juncture, to note that the Three Judge Bench of the Hon'ble
Supreme Court, in the decision reported in 2014 (2) SCALE 262 [Renu and others
v. District & Sessions Judge, Tis Hazari and another] reiterated the above
said proposition of law and gave a direction to all the High Courts to comply
with the purport of Articles 14 and 16 of the Constitution of India while
filling up of any vacant post either in the High Court or in the Subordinate
Courts throughout the India. In the said decision, the Hon'ble Supreme Court
held that post shall be filled up by issuing the advertisement in atleast two
newspapers and one of which must be in vernacular language having wide
circulation in the respective State, apart from calling for a list from the
local employment exchange and any vacancy filled up without advertising as
prescribed, shall be void ab-initio and would remain unenforceable and
inexecutable except the appointment on compassionate grounds, as per the Rules
applicable .
15. Therefore,
no error could be found from the order of the learned single Judge. The learned
single Judge was also right in giving further direction to communicate the copy
of the order to the Chief Secretary to the Government of Tamil Nadu for strict compliance
to see that all public posts in future are filled up, as per the law declared
by the Hon'ble Supreme Court.
16. During the
course of argument, the learned Special Government Pleader has drawn the
attention of this Court that out of 25 vacancies, for which selection was held
in the year 2010, only 8 persons were selected. Of which, 6 persons alone
joined and from among 6 persons, one person died and the remaining 5 persons
viz., Rajavel, Ramalingam, Chinnathurai, Marimuthu and Kolanji are in service
for the past four years. Considering the submissions of the learned Special
Government Pleader and also the fact that the respondent has not chosen to
implead the said five persons, who are now serving, as party-respondents in the
writ petition as well as in the writ appeal, we hold that their continuance,
need not be disturbed by virtue of the order passed in this writ appeal.
17. In the
result, the writ appeal is dismissed with a further direction to the Government
of Tamil Nadu to follow this judgment while filling up of all public posts in
future as directed above to comply with Articles 14 and 16 of the Constitution
of India. No costs. Consequently, M.P.No.1 of 2013 is closed.
Registry is
directed to forward the copy of this judgment forthwith to the Chief Secretary
to the Government of Tamil Nadu, who in turn directed to circulate the copy of
this judgment to all the Secretaries of various departments, for strict
compliance.
(N.P.V.,J) (M.S.N.,J)
09.06.2014
Index: Yes
Internet:Yes
bs/bbr
Note to office:
Issue copy of this judgment on or before 19.6.2014.
N.PAUL VASANTHAKUMAR,J.
And
M.SATHYANARAYANAN,J.
bs/bbr
W.A.No.1027 of 2013
