Madras High Court
Mr.M.Pounraj vs The State Of Tamil Nadu on 16 October, 2012
Author: Vinod K.Sharma
Bench: Vinod K.Sharma
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 16/10/2012
CORAM
THE HONOURABLE MR.JUSTICE VINOD K.SHARMA
W.P.(MD).No.10390 of 2011
&
W.P.(MD).No.10391 of 2011
1.Mr.M.Pounraj ... Petitioner in W.P.(MD).10390/2011
2.Mr.S.Rengarajan ... Petitioner in W.P.(MD).10391/2011
Vs.
1.The State of Tamil Nadu
Represented by its Secretary,
Department of Tourism and Cultural,
Chennai.
2.The Commissioner of Tourism,
Department of Tourism,
Tamil Nadu Tourism Complex,
Valaja Road, Chennai-02.
3.The Commissioner,
(Employment Wing),
Commissionarate of Employment and Training,
Guindy, Chennai-32.
4.Mr.D.Kamaraj
5.Mr.T.Kannan
6.Mr.N.Anbarasu
7.Mr.Y.Anburose
8.Tmt.N.Nithyakalyani
9.Mr.K.Palanisamy
10.Mr.H.Govinddaraj
11.Mr.A.Sankar
12.Mr.R.Ramakrishnan
13.Mr.B.Kathiresan
14.Mr.Senthil Kumar
15.Mr.E.Baskaran ...Respondents in both the above WPs
PRAYER
Writ Petitions have been filed under Article 226 of the Constitution of
India for the issuance of a Writ of Certiorarified Mandamus to call for the
records pertaining to the impugned orders of appointment in
Se.Mu.Aa.No.2866/ma.va.me2/08-1 to Se.Mu.Aa.No.2866/ma.va.me2/08-12, dated
29.01.2011 issued to the respondent No.4 to 15 by the respondent No.2 and quash
the same and consequently to direct the respondents to make a fresh recruitment
to the 12 posts of Assistant Tourism Officer Grade-II permitting the petitioner
to participate in the said recruitment process.
!For Petitioner ... Mr.T.Lajapathi roy
^For Respondents... Mr.M.Govindan, Spl GP (For R1 to R3)
No appearance for (R4 to R15)
:COMMON ORDER
***************** This judgment shall dispose of the above mentioned writ petitions as common question of law and facts are raised in both these writ petitions.
2.For the sake of brevity, the facts have been taken from W.P.(MD).No.10390 of 2011.
3.The petitioner prays for issuance of a writ in the nature of Certiorari to quash the impugned orders of appointment of respondents 4 to 15 issued vide Se.Mu.Aa.No.2866 /ma.va.me2/08-1 to Se.Mu.Aa.No.2866/ma.va.me2/08-12, dated 29.01.2011, by the 2nd respondent with consequential prayer for issuance of a writ in the nature of mandamus to direct the respondents 1 to 3 to fill up the posts by issuing advertisement in press to enable all eligible persons to compete for the posts.
4.The petitioner is B.A.(History) and also post graduation in MTM (Master of Tourism Management). The petitioner has also undergone basic course in computer. The petitioner got himself enrolled with the District Employment Office, Theni in the year 1998, and thereafter, got himself enrolled with the Professional Employment Office, Chennai in the year 2002.
5.The Commissioner of Tourism issued notification for recruitment to the post of Assistant Tourism Officer Grade-II, and to fill up the posts, sent a requisition to the District Employment Officers to sponsor the names of the candidates in the ratio 1 : 5. It was also notified that the interview for the posts will be held on 10th & 11th of January 2011. Though the name of the petitioner was included in the list of candidates sent by the Madurai Employment Officer, no letter for interview was sent to the petitioner. The petitioner was informed that only persons, having prior registration than the petitioner were called for interview.
6.According to the Rules of the Tourism Department, the qualification prescribed for direct recruitment to the post of Assistant Tourism Officer Grade-II is only a degree. The qualification for the post was amended vide G.O.Ms.No.31, Tourism & Culture (T.2) Department, dated 16.02.2010.
7.On the date of issuance of notification, the qualifications for the post of Assistant Tourism Officer notified was :-
(i)A degree in Travel and Tourism; or any degree with Deploma in Tourism; or any degree with a subject on Tourism; and
(ii)Must have undergone a basic course in computer.
8.It is submitted that the petitioner was duly qualified as he had passed graduation in Tourism and also undergone basic course in computer.
9.It is the case of the petitioner that the selection process adopted by the respondents 1 to 3 in restricting the choice of selection through employment exchange is contrary to the law laid down by the Hon'ble Full Bench of this Court in Sivakumari.R Vs. Ramanathapuram Mavatta Payirchipetra Edainilai Asiriyargal Sangam reported in 2007(5) CTC 561, laying down that restricting the choice of selection only to those whose names are borne on the rolls of the Employment Exchanges vitiates the equality of opportunity in the matter of employment to all eligible candidates, and therefore, violates Article 16 of the Constitution of India.
10.The petitioner sent representation against decision of respondent in not permitting all the eligible persons to compete for employment. The petitioner, thereafter, filed W.P.No.271 of 2011 praying for issuance of a writ in the nature of mandamus to direct the respondent to consider the petitioner for the post of Assistant Tourism Officer Grade-II, but no interim order was passed in favour of the petitioner.
11.The petitioner sought information under the RTI Act, was informed that as against 12 posts of Assistant Tourism Officer, 60 candidates were sponsored by the Employment Exchange based on the employment seniority cut off date.
12.It is submitted that the information supplied shows that the name of 9th respondent was sponsored twice at Serial No.45 & 47, that of the 14th respondent was sponsored twice at Serial Nos.5 and 10, whereas one Mohamed Hanifa, though not selected, was also sponsored twice at Serial Nos.46 & 48. In addition, number of ineligible persons, who did not have the requisite qualification, were also sponsored.
13.It is submitted that the person shown at Serial No.26 had the qualification of B.Sc., the persons at Serial Nos.37 & 42 had B.Com. qualification and the persons at Serial Nos.46, 20 and 59 were holding the degree of B.A., whereas the person at Serial No.23 was holding mere Higher Secondary. It is submitted that the respondents 4 to 15 did not have the requisite qualification of a degree in Travel & Tourism or any Degree with diploma in Tourism, or the degree with subject of Tourism.
14.It is also one of the contentions of the learned counsel for the petitioner that out of the selected candidates, number of persons have been selected on priority category of intercaste marriage, which is not permissible in law.
15.The petitioner challenges the selection of the respondents 4 to 15, on the ground that the selection is in violation of Article 16 of the Constitution of India, as all eligible persons were not given an opportunity to compete for the post.
17.The impugned selection is also challenged on the ground that ineligible candidates, who did not fulfill the requisite qualification, have been given appointment.
18.The other ground of challenge is that the preference for intercaste marriage for appointment has been declared as ultra vires by the Hon'ble Full Bench of this Court, but inspite of this, preference was given to the intercaste marriage couples.
19.The counter has been filed, wherein the factual position is not disputed. In the counter, the stand taken by the respondents 1 to 3 is that the 12 candidates selected for the post of Assistant Tourism Officer Grade-II were fully qualified candidates, as per the Adhoc Rules framed for the post of Assistant Tourism Officer Grade-II vide G.O.Ms.No.31, Tourism & Culture (T2) Department, dated 16.02.2010, and that the selection was based on communal rotation as per G.O.Ms.142, Personnel and Administrative Reforms Department, dated 14.10.2009.
20.It is also submitted that the Commissioner of Employment & Training Department, Guindy, Chennai, was requested to include the names of candidates possessing the qualification of Master degree in Tourism Management or any degree with PG Diploma in Tourism. The basic course certificate in computer was said to be mandatory.
21.It is not disputed in the counter that the name of the petitioner was not sponsored. The stand taken in the counter is that the selection was to be made from the list of qualified candidates sponsored by the Director, District Employment & Training Department, Chennai, based on communal rotation. The counter does not deal with the submissions that the selection was contrary to the law laid down by the Hon'ble Full Bench of this Court in Sivakumari.R Vs. Ramanathapuram Mavatta Payirchipetra Edainilai Asiriyargal Sangam [2007(5) CTC 561].
22.The learned counsel for the petitioner vehemently contended that the impugned selection cannot be sustained, as it is hit by Article 16 of the Constitution of India, as it was not open to the respondents 1 to 3 to fill up the public post merely by calling names sponsored by the employment exchange, thereby denying the opportunity of employment to all eligible persons.
23.The learned counsel for the petitioner also vehemently contended, that the persons have been given preference based on intercaste marriage, which is not sustainable in law in view of the judgment of the Hon'ble Full Bench of this Court in M.Aarthi (minor) represented by her mother and natural guardian Mrs.M.Renuka vs. State of Tamil Nadu represented by its Secretary to Government
- (W.A.No.3221 of 2002) and connected Writ Petitions, dated 01.11.2002, declaring this preference to be unconstitutional.
24.The writ petition is opposed by the learned Special Government Pleader by contending, that the impugned selection has been made on merit, from the persons sponsored by the employment exchange. The learned Special Government Pleader further contended that this procedure is being followed in the State of Tamil Nadu for all the posts including the judicial branch, therefore, no error can be found with the appointment of the respondents 4 to 15 through seniority of cut of date of employment exchange. The respondent No.4 to 15 inspite of notice, did not chose to contest this writ.
25.On consideration of the matter, this Court finds that the writ petitions deserve to succeed.
26.The contention of the learned Special Government 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.
27.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.
28.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)."
29.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.
30.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."
31. This view was 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."
32.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.
33.In view of the settled proposition of law, these writ petitions deserve to succeed. The process of selection of Assistant Tourism Officer Grade-II merely by considering the candidates sponsored by the employment exchange cannot be sustained in law.
34.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 unconstitutional Government orders do not have any force of law. The appointments made by following this process cannot be sustained in law.
35.The Employment Exchange is 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 giving wide publicity, so as to enable all eligible persons compete for the posts.
36.It was also not open to the respondents 1 to 3 to give preference to intercaste marriage. In view of the decision of the Hon'ble Full Bench of this Court and Hon'ble Supreme Court referred to above.
37.In the result, both these writ petitions are allowed. The selection of the respondents 4 to 15 is ordered to be quashed. A writ of mandamus is issued directing the respondents 1 to 3 to make fresh selection for the post of Assistant Tourism Officer Grade -II after due publicity in the leading newspapers, in addition to calling the names from the employment exchange, and thereafter select the persons on merit. Needful shall be done within one month of the receipt of a certified copy of this order.
No costs.
ssv To
1.The Secretary, State of Tamil Nadu Department of Tourism and Cultural, Chennai.
2.The Commissioner of Tourism, Department of Tourism, Tamil Nadu Tourism Complex, Valaja Road, Chennai-02.
3.The Commissioner, (Employment Wing), Commissionarate of Employment and Training, Guindy, Chennai-32.