Madras High Court
Mr.P.Muthuvalan vs Teachers Recruitment Board on 12 October, 2012
Author: Vinod K.Sharma
Bench: Vinod K.Sharma
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 12/10/2012
CORAM
THE HONOURABLE Mr.JUSTICE VINOD K.SHARMA
Writ Petition (MD) No.11663 of 2012
and
Writ Petition (MD) No.13235 of 2010
W.P.(MD) No.11663 OF 2012
Mr.P.Muthuvalan ... Petitioner
Vs
1. Teachers Recruitment Board
rep. By its Chairman
EVK Sampath Maligai
DPI Compound
College Road
Chennai 06.
2. Mr.M.Jeyaseelan
3. Mr.M.Ramamoorthy. ... Respondents
Petition filed under Article 226 of the Constitution of India praying for
the issuance of Writ of certiorarified mandamus to call for the records
pertaining to the impugned tentative provisional list of candidates selected for
appointment for the recruitment of Special Teachers through Employment
Registratino State Seniority 2010 - 2011 and 2011 - 12 dated Nil published in
the Internet by the first respondent and quash the same as illegal and
consequently to consider the petitioner for appointment under LA (Land
Acquisition) priority to the post of Special Teacher (Physical Education) within
the stipulated time.
W.P.(MD) No.13235 OF 2010
M.Ramamoorthy ... Petitioner
Vs
1. The Member Secretary
Teachers Recruitment Board
College Road
Chennai 600 006.
2. The Director of School Education
Chennai 600 006.
3. The District Employment Officer
Ramanathapuram District.... Respondents.
Petition filed under Article 226 of the Constitution of India praying for
the issuance of a writ of certiorarified mandamus to call for the records
relating to the order not selecting the petitioner for the post of Physical
Education Teacher, on the file of the first respondent and quash the same and
further direct the respondents 1 and 2 to select and appoint the petitioner as
Physical Education Teacher.
!For petitioner ... Mr.T.Lajapthi Roy
{in W.P.(MD) No.11663 of 2012}
Mr.G.Prabhu Rajadurai
{in W.P.(MD) No.13235
of 2012}
^For respondents ... Mr.R.Karthikeyan, AGP
for R.1
Mr.G.Prabhu Rajadurai
for R.3.
- - - - -
:COMMON ORDER
The petitioner prays for the issuance of a writ in the nature of certiorari to quash the impugned tentative provisional list of candidates selected for the appointment for the recruitment as Special Teachers through Employment Exchange Registration State Seniority 2010 - 2011 and 2011 - 12 published in the Internet by the Teachers Recruitment Board, with a consequential relief of considering the petitioner and all other eligible persons for the appointment.
2. The petitioner acquired qualification of H.PED (Higher Grade Physical Education). The petitioner enrolled himself in the District Employment Exchange on 14/9/1999. In the year 2008, the lands of the petitioner were acquired and because of which, the petitioner was placed in priority category of L.A (Land Acquisition) for the purpose of employment preference.
3. In the year 2009, the Teachers Recruitment Board initiated recruitment to the post of Physical Education Teachers and filled up around 853 posts as per the guidelines issued to the concerned District Employment Exchanges, subject to reservation of posts, including priority categories. Though number of posts were filled up by giving preference to Inter Caste Marriage category and dependents of ex-serviceman category but no one under the Land Aquisition category was given employment.
4. In 2012, the Teachers Recruitment Board has commenced a process of selection of Special Teachers (Physical Education) by calling the candidates from the District Employment Exchanges. The total posts to be filled up is 1023 posts, out of which 98 posts are reserved for MBC priority category.
5. It is submitted that the name of the petitioner was sponsored under MBC (LA) Category but in the impugned provisional list, no one under LA category was selected whereas 17 out of 43 posts had been given to Inter-caste marriage priority category and 17 posts had been given to dependents of Ex-service man priority category. It is submitted that this reservation is unsustainable in law.
6. It is also the submission that out of 8 priority categories, only three have been given representation i.e., inter-caste marriage, dependents of ex-service man, destitute widow, but land acquisition category has been totally ignored.
7. In addition, Repatriates from Srilankan, physically handicapped category, orphan and discharged Government Employee (State) were also given representation.
8. The petitioner, has impleaded the second and third respondents in the representative capacity as per the Rules.
9. The learned Additional Government Pleader was directed to send notices to all the candidates in tentative list, but nobody has chosen to appear.
10. The tentative selective list and the process of selection is challenged by the petitioner on the ground of it being arbitrary and violative of Article 14 of the Constitution of India.
11. The selection is also challenged being violative of Article 16 of the Constitution of India as the process adopted has denied the equality of opportunity to all citizens in a matter of public employment.
12. It is also the submission of the petitioner that the appointment of Inter-caste marriage priority category is illegal as the reservation for inter- caste marriage has been declared to be ultra vires the Constitution by this Court.
13. The prayer in this case is to quash the tentative list of candidates provisionally selected for appointment for recruitment of Special Teachers through Employment Registration State Seniority 2010 - 2011 and 2011 - 2012.
14. In spite of three opportunities, neither the first respondent nor the private respondent have filed counter. Therefore, the averments made in the affidavit filed in support of the writ petition go unresulted.
15. Even otherwise, the averments made in the writ petition finds support from the Notification issued by the first respondent requesting the Employment Exchange to sponsor the name of the candidates.
16. The learned counsel for the petitioners challenged the tentative select list as also the process of selection by contending, that the select list deserves to be set aside as it given preference for appointment to inter-caste marriage category though this was declared to be unconstitutional by the larger Bench in W.A.(MD) No.3221 of 2001 and W.A.M.P.No.5348 of 2002 decided on 1/11/2002, holding that the separate reservation for children of inter-caste marriage under special category other than the reserved category is unsustainable in law.
17. The selection is also challenged on the ground that the process of filling up of the posts of Teachers only by inviting application through Employment Exchange is unconstitutional. Therefore, is hit by Article 14 and 16 of the Constitution of India.
18. On consideration, I find that these writ petitions deserve to succeed.
19. The Honourable larger Bench of this Court in R.SIVAKUMARI AND SEVENTEEN OTHERS ..VS.. RAMANATHAPURAM MAVATTA PAYIRCHIPETRA EDAINILAI ASIRIYARGAL SANGAM, REP. BY ITS SECRETARY (2007 (5) C.T.C. 561) had been pleased to lay down that appointment of the public or Government post can be made only by adopting the following procedure.
(a)by notifying employment exchanges;
(b)publication in the newspapers having wide circulation, inviting applications;
(c)Display Notification on Notice Boards of respective offices or make announcements in Media, as right to seek employment to public services is valuable right, and the Constitution guarantees equality of opportunity in matters relating to employment or appointment to any office under the State;
(d). No discrimination can be made between persons already in employment, and those who were not in employment, except by statutory law.
20. It is contended that the reliance by the respondents on Section 4 of the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 to justify action is not sustainable as the Honourable Supreme Court in UNION OF INDIA AND OTHERS Vs. N.HARGOPAL AND OTHERS (1987) 3 SCC - 308. While interpreting Section 4, laid down that the employers is not bound to appoint only the persons sponsored by the employment exchange. Under Section 4, the employers is only required to notify the vacancies to the employment exchange.
21. In view of the decision of the Honourable Supreme Court, it can be said that Section 4 of Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 cannot be interpreted to defeat the Constitutional right granted under Article 16 of the Constitution of India.
22. This Court in K.P.JAGANATHAN ..VS.. THE COMMISSIONER, DEPARTMENT OF EMPLOYMENT AND TRAINING, CHNENAI (W.P.No.26162 of 2010 decided on 02.08.2012), directed the State Government to 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.
23. The Article 309 of the Constitution and Article 162 of the Constitution also stipulates that the Government can make Rules or issue direction which are in consonance with the constitutional provisions of law.
24. It is therefore, not open to the State Government to issue instructions or frame rules contrary to the Article 14 and 16 of the Constitution of India.
25. The Honourable Supreme Court, while considering the question as to whether the public post can be filled only by requisition from the Employment Exchange, in STATE OF BIHAR ..VS.. UPENDRA NARAYAN SINGH AND OTHERS (2011(1) SCT 208), 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."
26. This view was again reiterated in STATE OF ORISSA AND ANOTHER ..VS. MAMATA MOHANTY (2011 (2) S.C.T. 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 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 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."
27. This Court in P.M.MALATHI ..VS.. STATE OF TAMIL NADU AND OTHERS (2012 (3) M.L.J. 669) also held, that it is not permissible for the State to fill up the posts, only by calling names from the employment exchange, and thereby denying right of consideration, to other eligible persons, who are not registered with employment exchange.
28. The Judgments of the Supreme Court is declaration of law and binding on all, including the State Government and the State agencies. Any rules or instructions by other authorities or State Government cannot have binding effect on the law declared by Hon'ble Supreme Court and the High Court. Reference in support can be made to the judgment of Hon'ble Supreme Court in COMMISSIONER OF CENTRAL EXCISE ..VS.. M/S. RATAN METAL AND WIRE INDUSTRY (2008 (13) SCALE 353).
29. Therefore, any appointment merely by inviting names from the Employment Exchange does not meet the requirement of Articles 14 and 16 of the Constitution of India, as it violates the mandate of Articles 14 and 16 of the Constitution of India; as it results in depriving of eligible candidates having the requisite qualification for the post from being considered.
30. The democratic progressive Government of Tamil Nadu in the best interest of eligible candidates and keeping in view the interest of the students constituted the Teachers' Recruitment Board, so as to select the best available talent for appointment as Teacher so that the future of the country is safe.
31. The first respondent, instead of achieving the great object of the State Government, is acting in a clerical manner in selecting the candidates merely based on employment seniority by mere verification of the certificates. This cannot be the job of Teachers Recruitment Board consisting of prominent people entrusted with the job of selecting Teachers who are the custodian of the future of the Nation.
32. The Teachers' Recruitment Board is under legal obligation to follow the law declared by the High Courts and Supreme Courts of India. Once the Full Bench of this Court, as well as the Honourable Supreme Court has laid down that the appointments through Employment Exchange alone is violative of Article 14 and 16 of the Constitution of India. It is not understood how the first respondent has adopted unconstitutional method to select the Teachers merely based on employment exchange. The impugned tentative select list being violative of Article 14 and 16 of the Constitution of India. Therefore, cannot be sustained in law.
33. Consequently, this writ petition is allowed. The writ in the nature of certiorari is issued to quash the impugned tentative provisional list of candidates selected for appointment for the recruitment of Special Teachers through Employment Registration State Seniority 2010 - 2011 and 2011 - 12.
34. The writ in the nature of mandamus is also issued directing the respondents to fill up the post of Special Teacher (Physical Education) by inviting applications from all eligible persons by publication in press in addition to the names sponsored by the employment exchange and thereafter, select the candidates on merits. According to the criteria adopted by the first respondent, the criteria be decided before process of selection starts. It shall be open to respondent No.1 to have written test followed by interview/viva-voce.
35. This exercise be carried out within one month of the receipt of certified copy of this order. No costs. Consequently, the connected Miscellaneous Petitions are closed.
mvs.
To
1. The Member Secretary Teachers Recruitment Board College Road Chennai 600 006.
2. The Director of School Education Chennai 600 006.
3. The District Employment Officer Ramanathapuram District