Madras High Court
K.P.Jaganathan vs The Commissioner on 2 August, 2012
Author: Vinod K.Sharma
Bench: Vinod K.Sharma
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 02.08.2012
Coram
THE HONBLE MR. JUSTICE VINOD K.SHARMA
W.P.No.26162 of 2010 and M.P.No.1 of 2010
K.P.Jaganathan .. Petitioner
.. Vs ..
1. The Commissioner,
Dept. of Employment and Training,
Alandur Road, Guindy, Chennai 32.
2. The District Collector,
Cuddalore.
3. The District Employment Officer,
Cuddalore.
4. The Tahsildar,
Tittagudi Taluk,
Cuddalore District. ... Respondents
Amended Prayer:-
Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Declaration declaring that the recruitment/selection process initiated by the respondent No.4 in the year 2010 to fill up 25 vacancies of Village Assistants by seeking sponsorship of names from the office of the respondent No.3 alone, pursuant to G.O.Ms.No.429, Revenue, 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 and unconstitutional, therefore, violative of Article 14 of the Constitution of India.
(Prayer amended as per order dated 01.08.2012 in M.P.No.1/2012)
For Petitioner : Mr.N.Easwaran
For respondents : Mr.R.Vijayakhumar
Addl. Govt. Pleader
*****
O R D E R
The petitioner prays for issuance of a writ in the nature of declaration, declaring the recruitment /selection process initiated by the Tahsildar, Tittakudi, Cuddalore District in the year 2010 to fill up 25 vacancies of Village Assistant by seeking sponsorship of names from the office of District employment officer alone in pursuance to G.O.Ms.No.429, issued by Revenue department, dated 08.08.2007 and 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 and unconstitutional, therefore, violative of Article 14 of the Constitution of India.
2 The petitioner studied upto 10th Standard and belongs to scheduled caste community and had duly registered with the District Employment Office, Cuddalore in the year 1985 and renewed from time to time to keep the registration alive. The name of the petitioner was sponsored by the respondent No.3 for the post of Village Assistant in the year 2007. The petitioner participated in the interview held on 27.04.2007 by the respondent No.4 and was selected, but no appointment letter was issued to the petitioner. Thereafter, interview letters were sent to about 200 persons for interview to be held on 23.04.2010. The petitioner was not called for interview to be held on 23.04.2010.
3 The petitioner challenged the action of the respondent No.4 in not sponsoring his name for consideration for appointment to the post of Village Assistant, but was allowed to amend the writ petition to challenge the process of selection. It is submitted that the Government issued G.O.Ms.No.429 Revenue department, dated 08.08.2007 to fill up vacancies of Village Assistant all over Tamil Nadu. Out of the total vacancies, 25 vacancies of Village Assistant fall in Tittakudi Taluk. It was directed that the appointments be made by seeking sponsorship from employment exchange. The respondents have failed to advertise the posts in dailies, internet, notice board, etc. to enable all eligible persons to participate in the process of selection so as to be selected on merit.
4 It is not in dispute that though 200 persons sponsored by the employment exchange were interviewed, but as this Court had ordered maintenance of status quo, the selection process stood stayed.
5 The petitioner on pleaded facts prays for quashing the selection process.
6 The writ petition is opposed by the respondents. In the counter, it is admitted that the petitioner is registered with the District Employment Office, Cuddalore. But it is submitted that the Tahsildar, Tittakudi Taluk invited 25 vacancies of Village Assistant posts to the office of the respondent No.3 with minimum qualification of V Standard. The District Employment Officer, Cuddalore had drawn the following cut-off date of seniority:
1 SC General Non Priority - 08.08.1985 2 General turn General Non-Priority - 21.01.1987
7 It is submitted that seniority of the petitioner who is eligible to be nominated under both categories was 12.05.1989 and therefore, he did not come within the cut-off date of seniority decided for nomination, therefore, his name was not sponsored.
8 The question to be decided in this writ petition is whether it is open to the State of Tamil Nadu, State agencies or its officers to fill up the public posts merely by calling names from Employment Exchange, on the basis of their seniority, all eligible persons from the Employment Exchange only, without giving chance to all eligible persons to compete for selection.
9 The learned Additional Govt. Pleader vehemently contended that the petitioner is not eligible for being appointed, according to the Govt. orders issued from time to time, fixing the ratio for sponsoring names by the District Employment office. The stand taken is that petitioner did not come within the cut-off date of seniority, therefore, cannot have any grievance. The stand of the respondent cannot be accepted as the petitioner has approached this Court to sponsor his name for appointment, but has challenged the process of selection being unconstitutional.
10 The contention of the learned Addl. Govt. Pleader that the respondents are bound by the Govt. orders issued from time to time, for filling up all the posts by inviting names from the District Employment office alone. In support of this, the learned Additional Govt. Pleader referred to letter No.RA.2(2)79191/06 dated 11.12.2006 addressed by Thiru M.F.Farooqui, I.A.S., Special Commissioner and Commissioner of Revenue Administration, Ezhilagam, Chennai 5 to the Collectors of all districts pointing out that norms prescribed for recruitment of Village Assistant under G.O.Ms.No.521, Revenue dated 17.06.1998 should be followed.
11 G.O.Ms.No.521 Revenue dated 17.06.1998 has not been placed on record. However, in this letter, there is no direction to appoint the person to the post of Village Assistant merely by calling names from the Employment Exchange.
12 Reliance was thereafter placed on G.O.Ms.No.787 dated 6.12.2006. In this letter, again it was ordered that 3674 Village Assistant posts to be filled up by relaxing the relevant condition imposed earlier in G.O.Ms.No.625, Revenue Department, dated 06.07.1995. G.O.Ms.No.625 is again not placed on record.
13 In G.O.Ms.No.65, dated 30.03.2007, it was laid down that for filling up of any vacancy in any employment in Government departments, Local bodies, (Urban and Rural), Co-operative institutions, Public sector Undertakings, all Govt. aided Educational Institutions and Govt. aided Engineering Colleges and Polytechnics, etc., Employment Exchanges shall sponsor candidates to the employers in the ratio of 1 : 1 (one : one) as per seniority of registrants who are in the live register. Whereas for all other private organisations and institutions etc., vacancies are to be filled through employment exchange and in case of selection on merit, the Employment exchange shall sponsor the candidates to the employers in the ratio of 1 : 15 (one : fifteen) from the live register.
14 In G.O.Ms.No.86 dated 12.05.2007, the following guidelines were issued.
(i) In order to avoid delay and to expedite filling up of vacancies, wherein notifications of vacancies have been sent earlier and list of candidates has already been received from the Employment Exchange prior to 30.03.2007 to fill up the vacancies arising in the offices referred to in G.O.Ms.No.65, Labour and Employment Department, dated 30.03.2007, the vacancies may be filled up based on the said list already sent to the Employment Exchanges.
(ii) In all other cases, the ratio of 1:1 fixed in G.O.Ms.No.65, Labour and Employment Department, dated 30.03.2007 may strictly be followed by the Employment Exchange while sponsoring candidates to employers; and
(iii) In case of departments where certain posts require fulfilling physical skill and technical parameters and if it is not possible to follow 1:1 ratio as stipulated in G.O.Ms.No.65, Labour and Employment Department, dated 30.03.2007 such department may follow the earlier guidelines regarding the ratio of sponsoring the candidates.
15 The learned Additional Govt. Pleader also placed on record letter Ms.No.631, dated 07.11.2008 of the Revenue department, pointing out that according to the instructions issued vide G.O.Ms.No.429, Revenue department, dated 8.8.2007, the District Collectors are to fill up vacancies from the candidates sponsored by the Employment Exchange in the ratio of 1 : 5 (one : five). The letter under reference was issued clarifying certain doubts. The clarification given in the letter reads as under:
"3. In this connection, the Government have examined the request of the Special Commissioner and Commissioner of Revenue Administration in detail and issue the instructions as follows:-
(i) The ratio of 1 : 5 has been decided in G.O.(Ms) No.429, Revenue Department, dated 8.8.2007 for sponsor of candidates from employment exchange. This G.O. will prevail.
(ii) Regarding the minimum educational qualification of V Std. Passed for the post of Village Assistant, a maximum be fixed i.e. 10th fail as asked by the Special Commissioner and Commissioner of Revenue Administration.
(iii) If so eligible hands are available in the concerned village, then the least distant adjoining village may be selected for recruiting the Village Assistants. If more than one village is having the same distance, then the candidates may be called for from all such least distant villages and so on and so forth. If there is no candidate still from all these adjoining villages, then alone the candidates may be called for from the entire firka and later if necessary from the entire taluk.
(iv) Regarding the age limit of above 35 years, it has been already clarified in Government letter No.261/Ser-8(1)/07-1, Revenue, dated 23.02.2007 i.e. the orders issued in G.O.(Ms.) No.98, Personnel and Administrative Reforms Department, dated 17.7.2006 will automatically made applicable for recruitment the Village Assistant post.
4. The receipt of this letter may be acknowledged early."
16 G.O.Ms.No.787 and G.O.Ms.No.429 again have not been placed on record. It seems no record of Government instructions is maintained, as inspite of number of adjournments, the State counsel was unable to place on record G.O.'s issued from time to time, to know the source of authority to issue those orders.
17 Finally, the learned Addl. Govt. Pleader placed reliance on G.O.Ms.No.429 Revenue (Ser 8(1) Department dated 8.8.2007 stipulating therein as under:
"ORDER:
In the Government order first read above, the Government have ordered for filling up of 3674 vacancies of Village Assistants in Revenue Department in the State of Tamil Nadu.
2 In the Government order second read above, Government have ordered that 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., Employment Exchanges shall sponsor candidates to the employers in the ratio of 1 : 1 (one : one) as per seniority of registrants, who are in the live register.
3. In the Government Order third read above, the Government have issued further orders as follows:
(i) In order to avoid delay and to expedite filling up of vacancies, wherein notifications of vacancies have been sent earlier and list of candidates has already been received from the Employment Exchange prior to 30.03.2007 to fill up the vacancies arising in the offices referred to in G.O.Ms.No.65, Labour and Employment Department, dated 30.03.2007, the vacancies may be filled up based on the said list already sent to the Employment Exchanges.
(ii) In all other cases, the ratio of 1:1 fixed in G.O.Ms.No.65, Labour and Employment Department, dated 30.03.2007 may strictly be followed by the Employment Exchange while sponsoring candidates to employers; and
(iii) In case of departments where certain posts require fulfilling physical skill and technical parameters and if it is not possible to follow 1:1 ratio as stipulated in G.O.Ms.No.65, Labour and Employment Department, dated 30.03.2007 such department may follow the earlier guidelines regarding the ratio of sponsoring the candidates.
4. In the letter 4th read above, the Special Commissioner and Commissioner of Revenue Administration has stated that the post of Village Assistant should be recruited from among the persons who are resident of same village and also know cycle riding. The purpose of selecting local people for the job is that they would be available for officials as well as for the public round the clock and very familiar with the public as well as local issues including land particulars. At the time of any emergencies of natural calamities, their services will be very vital in Disaster management. That is why the Government are very particular about recruiting the Village Assistants belonging to the same Revenue Villages. Further, he has also stated that if we follow 1:1 ratio in getting the candidates sponsored from the Employment Exchange this will delay recruitment process unnecessarily.On the other hand if 1:20 ratio is adopted this problem could easily be sorted out.
5. Government have examined the proposal of the Special Commissioner and Commissioner of Revenue Administration and by exempting the orders issued in the Government order second read above, now order for the recruitment of 3674 Village Assistants in this State of Tamil Nadu from the candidates sponsored by the Employment Exchange as per seniority of registrants, who are in the live register in the ratio of 1:5 (one : five).
6. The Special Commissioner and Commissioner of Revenue Administration is requested to issue above necessary instructions to all the District Collectors to take immediate action in the matter and send a report to Government in due course."
18 The learned Addl. Govt. Pleader therefore contended that the respondents are bound by the Govt. orders issued from time to time, therefore, petitioner cannot have any grievance to the process of selection which is strictly in accordance with the Govt. policy in making appointment of the candidates sponsored by the Employment Exchange, based on their seniority.
19 The contention of the learned Addl. Govt. Pleader cannot be accepted. The question whether it is open to the State Government to fill up the public posts through Employment Exchange without advertising the vacancies in the open market, was considered by the Hon'ble Supreme Court in number of cases.
20 The earlier view of the Hon'ble Supreme Court was that in view of the provisions of Employment Exchanges (Compulsory Motification of Vacancies) Act 1959, the appointment through Employment exchange could not be said to be illegal or violative of constitutional provisions of law. However, this view does not hold the field any longer for reasons stated hereinafter.
21 The Hon'ble Full Bench of this Court in R.Sivakumari and 17 others vs. Ramanathapuram Mavatta Payirchipetra Edainilai Asiriyargal Sangam and four others (2007(5) C.T.C. 561) was pleased to lay down as under:
"15. In order to find an answer to the above question, it is necessary to have a peep into the statutory provisions governing the functions and the role of the Employment Exchange. In order to provide for Compulsory Notification of vacancies to employment exchange, the Parliament enacted the Employment exchange (Compulsory Notification of vacancies) Act, 1959. As the preamble as well as the title given to the Act indicates, the Act provides only for Compulsory Notification of Vacancies. The Act does not even provide for the employment exchanges to sponsor candidates to employers. While Sec.2 of the Act contains definitions, section 3 specifies the posts and vacancies to which the Act would not apply. Sec.4 makes Notification of vacancies to Employment exchanges mandatory and section 5 imposes an obligation upon the employer to file returns and furnish information. Section 6 enables the Government to nominate an oficer to have access to the records or documents in possession of any employer who is required to file returns under section 5. Sec.7 prescribes penalties for the failure of employers to notify vacancis and section 8 provides for immunity for action taken in good faith, and section 10 vests rule making power upon the Central Government.
16. Thus, the entire scheme of the Act makes no whisper about the role of the Employment Exchange in sponsoring candidates for appointment to Government services or Private or Public Sector. The Act does not even prescribe as to what the Employment exchanges are supposed to do with the notification of vacancies made to them by employers. Even section 10(2), which lists out the matters that could be provided for n the Rules framed by the Central Govt., does not deal with sponsorship by Employment Exchanges, of candidates. However, there is a residuary clause under Clause (d) of sub-section (2) of section 10 where the rule making power of the Central Govt. is extended to any other matter also.
17 In exercise of the power conferred under section 10 of the Act, the Central Govt. had issued the Employment Exchanges (Compulsory Notification of vacancies) Rules, 1960. Rule 2 of the said rules contains the definitions. Rule 3 lists out the vacancies which had to be notified to Employment Exchanges. Rule 4 prescribes the form and manner of Notification of vacancies. Rule 5 prescribes the time limit for Notification to be submitted . Rule 7 prescribes the Director of Employment and training as the person who is authorised to exercise the power to call for records under section 6 of the Act. Rule 8 confers power upon the Director of Employment to sanction prosecution under the Act. Thus, the rules also do not deal with the procedure to be followed while sponsoring candidates for appointment to any posts in Govt. or Private or public sector.
18 In the absence of a specific provision in the Act or in the Rules, both for maintenance of what is termed by the respondents as "Live Register" and for the inclusion or deletion of the name of a person, it is to be seen if the official respondents are entitled to make a distinction between employed and unemployed candidates while sponsoring their names for recruitment. This question wouldnot have arisen for consideration if the law laid down by the Supreme Court that the Employment Exchanges cannot act as the only source of recruitment, had been taken note of by the respondents.
24 Therefore, if the recruitment of about four thousand secondary grade teachers to the Government Schools, were to be made in accordance with the law laid down by the Supreme Court, the respondents ought to have followed the following procedure namely:-
A. Notify the Employment Exchanges B. Issue publications in newspapers having wide circulation, inviting applications.
C. Display the notification in the notice boards of the respective offices or make annoucements in the media.
26 The Division Bench in its decision dated 5.4.2007 has come to the conclusion that persons who are already in employment have no right to continue in the rolls of the Employment Exchanges, on the basis that their status changes from that of 'unemployed persons' to that of 'employed persons' and that it would be inequitable to state that they are entitled to be sponsored. Such an argument would not have been available, if the respondents had resorted to a proper method of recruitment by inviting applications even from the open market. Right to seek employment to public services is a valuable right and Article 16 of the Constitution guarantees equality of opportunity in matters relating to employment or appointment to any office under the State. This fundamental right is subject to the entitlement of the State to make any law under Article 16(3) or 16(4) including 15(4-A) and 16(4-B). Now, a discrimination is sought to be made between persons already in employment and persons who are not in employment. This classification, unless made under any law enacted by the Parliament or the State under Article 16(3) or 16(4), cannot be a valid classification.
27 Article 19(1)(g) of the Constitution guarantees to all citizens, the right to carry on any occupation. By holding that persons who are now in employment in Private Aided Schools are not entitled to be sponsored for appointment to Government Schools, the fundamental right of such employed persons, is sought to be taken away. But this cannot be done without enacting a law imposing reasonable restrictions under Article 16(6)."
22 Inspite of authoritative pronouncement by the Hon'ble Full Bench of this Court, the State Government has continued to issue Government orders for making appointment in Government posts only through employment exchange, the act of State Government in not following the law laid down by this Court cannot be appreciated.
23 The Hon'ble Supreme Court in State of Bihar vs. Upendra Narayan singh and others (2011(1) SCT 208) again considered the question with regard to appointment to public office and declared the law as under:
"27. For ensuring that equality of opportunity in matters relating to employment becomes a reality for all, Parliament enacted the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 (for short `the 1959 Act'). Section 4 of that Act casts a duty on the employer in every establishment in public sector in the State or a part thereof to notify every vacancy to the employment exchange before filling up the same.
28 In Union of India and others v. N. Hargopal and others [(1987) 3 SCC 308], a two-Judge Bench of this Court considered the question whether persons not sponsored by the employment exchange could be appointed to the existing vacancies. The High Court of Andhra Pradesh had ruled that the provisions of 1959 Act are not applicable to Government establishment; that the Act does not cast duty either on the public sector establishment or on the private sector establishment to make the appointments from among candidates sponsored by the employment exchanges only, and that instructions issued by the Government of India that candidates sponsored by the employment exchanges alone should be appointed are contrary to Articles 14 and 16. This Court referred to Sections 3 and 4 of the 1959 Act, adverted to the reasons enumerated in the counter-affidavit filed on behalf of the Union of India before the High Court to justify the appointments only from among the candidates sponsored by the employment exchange and held:
"9........ The object of recruitment to any service or post is to secure the most suitable person who answers the demands of the requirements of the job. In the case of public employment, it is necessary to eliminate arbitrariness and favouritism and introduce uniformity of standards and orderliness in the matter of employment. There has to be an element of procedural fairness in recruitment. If a public employer chooses to receive applications for employment where and when he pleases, and chooses to make appointments as he likes, a grave element of arbitrariness is certainly introduced. This must necessarily be avoided if Articles 14 and 16 have to be given any meaning. We, therefore, consider that insistence on recruitment through Employment Exchanges advances rather than restricts the rights guaranteed by Articles 14 and 16 of the Constitution. The submission that Employment Exchanges do not reach everywhere applies equally to whatever method of advertising vacancies is adopted. Advertisement in the daily press, for example, is also equally ineffective as it does not reach everyone desiring employment. In the absence of a better method of recruitment, we think that any restriction that employment in government departments should be through the medium of employment exchanges does not offend Articles 14 and 16 of the Constitution.
29. In Excise Superintendent, Malkapatnam, Krishna District, A.P. v. K.B.N. Visweshwara Rao and others [(1996) 6 SCC 216], a three-Judge Bench while reiterating that the requisitioning authority/establishment must send intimation to the employment exchange and the latter should sponsor the names of candidates, observed:
"...... 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.
30. The same principle was reiterated in Arun Kumar Nayak v. Union of India and others [(2006) 8 SCC 111] in the following words:
"9 This Court in Visweshwara Rao, therefore, held that intimation to the employment exchange about the vacancy and candidates sponsored from the employment exchange is mandatory. This Court also held that in addition and consistent with the principle of fair play, justice and equal opportunity, the appropriate department or establishment should also call for the names by publication in the newspapers having wider circulation, announcement on radio, television and employment news bulletins and consider all the candidates who have applied. This view was taken to afford equal opportunity to all the eligible candidates in the matter of employment. The rationale behind such direction is also consistent with the sound public policy that wider the opportunity of the notice of vacancy by wider publication in the newspapers, radio, television and employment news bulletin, the better candidates with better qualifications are attracted, so that adequate choices are made available and the best candidates would be selected and appointed to subserve the public interest better.
31. The ratio of the above noted three judgments is that in terms of Section 4 of the 1959 Act, every public employer is duty bound to notify the vacancies to the concerned employment exchange so as to enable it to sponsor the names of eligible candidates and also advertise the same in the newspapers having wider circulation, employment news bulletins, get announcement made on radio and television and consider all eligible candidates whose names may be forwarded by the concerned employment exchange and/or who may apply pursuant to the advertisement published in the newspapers or announcements made on radio/television.
32. Notwithstanding the basic mandate of Article 16 that there shall be equality of opportunity for all citizens in matters relating to employment for appointment to any office under the State, the spoil system which prevailed in America in 17th and 18th centuries has spread its tentacles in various segments of public employment apparatus and a huge illegal employment market has developed in the country adversely affecting the legal and constitutional rights of lakhs of meritorious members of younger generation of the country who are forced to seek intervention of the court and wait for justice for years together."
24 This view is again reiterated in State of Orissa and another vs. Mamata Mohanty (2011(2) SCT 718) laying down as under:
"APPOINTMENT/EMPLOYMENT WITHOUT ADVERTISEMENT:
18. 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, 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 18 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 Administration, Delhi & Ors., AIR 1992 SC 789; State of Haryana & Ors. v. Piara Singh & Ors., AIR 1992 SC 2130; Excise Superintendent Malkapatnam, Krishna District, A.P. v. K.B.N. Visweshwara Rao & Ors., (1996) 6 SCC 216; Arun Tewari & Ors. v. Zila Mansavi Shikshak Sangh & Ors., AIR 1998 SC 331; Binod Kumar Gupta & Ors. v. Ram Ashray Mahoto & Ors., AIR 2005 SC 2103; National Fertilizers Ltd. & Ors. v. Somvir Singh, AIR 2006 SC 2319; Telecom District Manager & Ors. v. Keshab Deb, (2008) 8 SCC 402; State of Bihar v. Upendra Narayan Singh & Ors., (2009) 5 SCC 65; and State of Madhya Pradesh & Anr. v. Mohd. Ibrahim, (2009) 15 SCC 214).
19. 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 19 by merely inviting names from the Employment Exchange or putting a note on the Notice Board 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 of 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."
25 This Court in P.M.Malathi vs. State of Tamil Nadu and others [(2012)3 M.L.J. 669 again held that any Rule of the State Government restricting the right of consideration of the eligible candidates for public appointment is unconstitutional, being contrary to Article 14 and 16 of the Constitution of India.
26 In view of the settled proposition of law, this writ petition is deserves to succeed. The process of selection of Village Assistant merely by considering the candidates sponsored by the employment exchange cannot be sustained in law. The Government orders laying down that appointment be made only from the list of candidates sponsored by the Employment Exchange in the ratio prescribed under the Government orders, are unconstitutional being hit by Article 14 and 16 of the Constitution of India, The illegal Government orders do not have any force of law, the appointment made by this process cannot be sustained in law. The Employment Exchange can only be one of the source for considering the names of the candidates for appointment to public office. It is constitutional mandate to the State that all public posts are to be filled up after wide publicity, so as to enable all eligible persons compete for the posts.
27 Consequently, this writ petition is allowed as prayed for. The selection process for appointment to the post of Village Assistants only from candidates sponsored through Employment Exchange is quashed. A writ in the nature of mandamus is issued directing the respondents to advertise the posts in all leading newspapers and other media to enable all the eligible persons to compete for the post. The advertisement should show the number of posts to be filled up, the qualification for the post. The age limit and relaxation in age if any. The post reserved for different categories. The respondents should also constitute selection committee, who shall adopt the criteria of selection before commencement of selection process laying down marks for qualification, experience, interview, etc. depending on the post to be filled up.
28 In view of the different Government orders placed on record, it is directed that the State Government should take immediate steps to fill up the posts, by inviting applications from all eligible persons, along with names sponsored by the Employment Exchange after laying down criteria for selection, so as to select best available talent.
29 The copy of this judgment is directed to be circulated 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 Hon'ble Supreme Court in State of Orissa and another vs. Mamata Mohanty (2011(2) SCT 718). The Chief Secretary is further directed to place compliance report in this Court within one month of receipt of copy of this order.
Connected miscellaneous petition is closed.
No cost.
vaan To
1. The Commissioner, Dept. of Employment and Training, Alandur Road, Guindy, Chennai 32.
2. The District Collector, Cuddalore.
3. The District Employment Officer, Cuddalore.
4. The Tahsildar, Tittagudi Taluk, Cuddalore District