Kerala High Court
Soumya M. Joseph vs State Of Kerala on 29 January, 2010
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
TUESDAY, THE 4TH DAY OF NOVEMBER 2014/13TH KARTHIKA, 1936
WP(C).No. 12553 of 2014 (T)
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PETITIONERS:
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1. SOUMYA M. JOSEPH
PAPPANAMSSERIL HOUSE
EZHAKKARAVAD SOUTH P.O, PUTHENCRUZ
ERNAKULAM DISTRICT, PIN 682 308.
2. M.J. SUKARNO
WORKING PRESIDENT
KERALA SOCIAL SECURITY MISSION EMPLOYEES ASSOCIATION
SOCIAL WELFARE COMPLEX, POOJAPURA P.O
THIRUVANANTHAPURAM-695 012.
BY ADVS.SRI.N.MANOJ KUMAR
SMT.JAYASREE MANOJ
RESPONDENTS:
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1. STATE OF KERALA
REPRESENTED BY THE CHIEF SECRETARY
TO GOVERNMENT, SECRETARIAT
THIRUVANANTHAPURAM-695 001.
2. THE PRINCIPAL SECRETARY TO GOVERNMENT
SOCIAL JUSTICE DEPARTMENT
SECRETARIAT, THIRUVANANTHAPURAM-695 001.
3. THE KERALA SOCIAL SECURITY MISSION
REPRESENTED BY ITS EXECUTIVE DIRECTOR
SOCIAL SECURITY MISSION, SOCIAL WELFARE COMPLEX
POOJAPURA PO, THIRUVANANTHAPURAM-695 012.
4. THE EXECUTIVE DIRECTOR
SOCIAL SECURITY MISSION
SOCIAL WELFARE COMPLEX, POOJAPURA P.O
THIRUVANANTHAPURAM-695 012.
R3 & R4 BY ADV. SRI.ELVIN PETER P.J.
SENIOR GOVERNMENT PLEADER SRI. P. FAZIL
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
04-11-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 12553 of 2014 (T)
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APPENDIX
PETITIONERS' EXHIBITS :
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EXT.P1 - TRUE COPY OF THE DEGREE CERTIFICATE OF THE 1ST PETITIONER
DATED 29-01-2010 ISSUED BY THE SREE SANKARACHARYA UNIVERSITY OF
SANSKRIT.
EXT.P2 - TRUE COPY OF THE MEMORANDUM OF ASSOCIATION AND RULES
AND REGULATION OF THE KERALA SOCIAL SECURITY MISSION.
EXT.P3 - TRUE COPY OF THE CIRCULAR DATED 27-04-1984 ISSUED BY THE
GOVERNMENT.
EXT.P4 - TRUE COPY OF THE CIRCULAR DATED 13-6-1985 ISSUED BY THE
GOVERNMENT
EXT.P5 - TRUE COPY OF THE CIRCULAR DATED 5-4-1986 ISSUED BY THE
GOVERNMENT.
EXT.P6 - TRUE COPY OF THE CIRCULAR DATED 5-1-1988 ISSUED BY THE
GOVERNMENT.
EXT.P7 - TRUE COPY OF THE CIRCULAR DATED 28-2-1992 ISSUED BY THE
GOVERNMENT
EXT.P8 - TRUE COPY OF THE CIRCULAR DATED 25-10-2004 ISSUED BY THE
GOVERNMENT
EXT.P9 - TRUE COPY OF THE NOTIFICATION DATED 26-7-2013 APPEARED IN
THE MATHRUBHOOMI DATED 26-7-2013
EXT.P10 - TRUE COPY OF THE NEWS ITEM PUBLISHED IN THE
DESHABHIMANI DAILY DATED 24-10-2013
EXT.P11 - TRUE COPY OF THE NOTIFICATION APPEARED IN MATHRUBHOOMI
DAILY DATED 18-02-2014
EXT.P12 - TRUE COPY OF THE REPRESENTATION DATED 04-03-2014
SUBMITTED BY THE 2ND PETITIONER
EXT.P13 - TRUE COPY OF THE NEWS ITEM APPEARED IN THE
DESHABHIMANI DAILY DATED 8-3-2014
EXT.P14 - TRUE COPY OF THE NEWS ITEM APPEARED IN THE
DESHABHIMANI DAILY DATED 7.4.2014
EXT.P15 - TRUE COPY OF THE NEWS ITEM APPEARED IN THE KERALA
KAUMUDI DAILY DATED 20-04-2013
EXT.P16 - TRUE COPY OF THE NEWS ITEM APPEARED IN MANGALAM DAILY
DATED 12-5-2013
RESPONDENT(S)' EXHIBITS : NIL
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//TRUE COPY// P.A. TO JUDGE
P.B.SURESH KUMAR, J.
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W.P.(C).No.12553 of 2014
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Dated this the 4th day of November, 2014
J U D G M E N T
The first petitioner is a Post Graduate un-employed woman, who has registered for employment in the employment exchange. The second petitioner is an office bearer of an association of employees of the Kerala Social Security Mission, a society controlled by the Government of Kerala. Ext.P11 notification issued by the Kerala Social Security Mission is under challenge in this writ petition. Petitioners also seek directions to the Kerala Social Security Mission to refrain from making appointments , without notifying the vacancies to the employment exchange, as provided for under the employment exchange (Compulsory Notification of Vacancies) Act, 1959.
2. As per Ext.P11 notification, applications were invited by the Executive Director of the Kerala Social Security Mission, hereinafter referred to as 'the Mission' for short, for appointment on contract basis for a period of one year to the post of Manager in the District Early Intervention Centers established by the Mission. The case of the petitioners is that Ext.P11 notification was published, without notifying the vacancies to the employment exchange, as provided for in Section 4(1) of the Employment Exchange (Compulsory Notification W.P.(C).No.12553 of 2014 2 of Vacancies) Act, 1959, hereinafter referred to as "the Act" for short, and therefore, the same is illegal and liable to be quashed. According to the petitioners, had the vacancies been notified to the employment exchange, the first petitioner and other similarly placed persons, who are qualified for appointment to the notified post and who are registered for employment in the employment exchange would have been sponsored by the employment exchange.
3. The respondents 3 and 4 filed a counter affidavit, opposing the relief sought for by the petitioners. The stand of the said respondents in the counter affidavit is that merely for the reason that the vacancies are not notified to the employment exchange, it cannot be said that the selection process is vitiated. It is also contended by the said respondents that they are entitled to make appointments in accordance with the constitutional mandate contained in Article 16 of the Constitution of India and that the provisions of the Act do not interdict such appointments.
4. The question arises for consideration therefore, is whether the Mission is entitled to make appointments to its service, without notifying the vacancies to the employment exchange.
Section 4 of the Act reads thus:
"4. Notification of vacancies to employment exchanges.--(1) After the commencement of this Act in any State or area thereof, the employer in every establishment in public sector in that State or W.P.(C).No.12553 of 2014 3 area shall, before filling up any vacancy in any employment in that establishment, notify that vacancy to such employment exchanges as may be prescribed.
(2) The appropriate Government may, by notification in the Official Gazette require that from such date as may be specified in the notification, the employer in every establishment in private sector or every establishment pertaining to any class or category of establishments in private sector shall, before filling up any vacancy in any employment in that establishment, notify that vacancy to such employment exchanges as may be prescribed, and the employer shall thereupon comply with such requisition.
(3) The manner in which the, vacancies referred to in sub-section (1) or sub-section (2) shall be notified to the employment exchanges and the particulars of employment in which such vacancies have occurred or are about to occur shall be such as may be prescribed. (4) Nothing in sub-sections (1) and (2) shall be deemed to impose any obligation upon any employer to recruit any person through the employment exchange to fill any vacancy merely because that vacancy has been notified under any of those sub-sections.
5. In Kuriakose v. Cochin Shipyard Ltd. & others (1985 KLT
789), this Court on a consideration of the scheme of the Act held that Section 4 (1) of the Act is not mandatory and that the appointments made by the employer will not be rendered invalid, merely by reason W.P.(C).No.12553 of 2014 4 of the employer not complying with the requirements of Section 4 (1) or 4 (2) of the Act. In D. James Jesudas v. Malabar Cements Ltd.
(1996(1) K.L.J. 511), this Court held that the provisions of the Act do not affect the right of the employer to make appointments. In Union of India v. N. Hargopal [(1987) 3 SCC 308], the Apex Court held that the Act does not oblige any employer to employ only those who are sponsored by the employment exchanges. Even though Ext.P11 notification is published for selection of employees on contract basis for a period of one year, the same gives equal opportunity to all eligible persons to apply for selection. As such, it is a notification published in accordance with the equality clause enshrined in Article 16 of the Constitution of India.
6. In the said circumstances and in the light of the aforesaid decisions of this court and the Apex Court, I am of the view that the petitioners are not entitled to challenge Ext.P11 notification on the ground that the vacancies were not notified to the employment exchange before the selection process.
7. The learned counsel for the petitioners submitted that circulars have been issued by Government directing the public bodies to follow the principles of communal reservation, as provided for under Rules 14 to 17 of the Kerala State & Subordinate Services Rules, 1958, and the appointments are sought to be made in the W.P.(C).No.12553 of 2014 5 service of the Mission in violation of the said circulars. There is no pleading in the writ petition to the effect that the provisions in Rules 14 to 17 of the Kerala State & Subordinate Services Rules, 1958, have been adopted by the Mission for employment in its service. The circulars claimed to have been issued by the Government are not part of the records in this writ petition. The first petitioner has no case that she is entitled to the benefits of reservation. As such, according to me, the said issue does not arise for consideration in this writ petition.
There is, therefore, no merit in the writ petition and the same is, accordingly dismissed.
Sd/-
P.B.SURESH KUMAR, JUDGE
//true copy// P.A to Judge
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