Madras High Court
Thiru. P. Pandyrajan vs The General Manager on 11 October, 2012
Author: Vinod K. Sharma
Bench: Vinod K. Sharma
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 11/10/2012
Coram
THE HONOURABLE MR. JUSTICE VINOD K. SHARMA
W.P.(MD)No.11104 of 2012
W.P.(MD)Nos.11105 to 11110, 12797, 11150, 11285 to 11294,
12740, 12773, 11485 to 11489, 12494 to 12496, 11840, 11841,
11823, 12209, 12162, 12281 to 12284, 12335, 12513, 12336, 12519,
12555, 11686 to 11692, 11953, 11964, 11713, 12058, 12059, 12075 to
12079, 12161, 12148, 12541, 12528 to 12530, 12354 to 12356, 12170,
12288 to 12289, 11477, 12936 and 12973 of 2012
and
Connected Miscellaneous Petitions
W.P.(MD)No.11104 of 2012 :-
Thiru. P. Pandyrajan,
S/o. Pauldurai,
4/142/1 Karisal Main Road,
Anthony Nager,
Cheranmahadevi Via,
Ambasamudram Taluk,
Tirunelveli District. ....... Petitioner
Vs
1. The General Manager,
Tamil Nadu State Transport Corporation
(Nellai) Ltd.,
Vannarpettai, Tirunelveli District.
2. The District Employment Officer,
O/o. The District Employment Exchange,
Tirunelveli. ..... Respondents
Writ Petition filed under Article 226 of the Constitution of India,
praying for issuance of a Writ of Mandamus, to direct the first respondent to
provide five years age relaxation to the petitioner in the recruitment for the
post of Conductor.
!For Petitioners... Mr. M. Ponniah
^For Respondents... Mr. A. Navaneethakrishnan
Advocate General
Assisted by
Mr. K. Sathiya Singh
Standing Counsel for TNSTC
Mr. M. Govindan
Special Government Pleader and
Mr. R. Karthikeyan
Additional Government Pleader
- - - - - - - -
:COMMON ORDER
This common order shall dispose of W.P.(MD)Nos.11104 to 11110, 12797, 11150, 11285 to 11294, 12740, 12773, 11485 to 11489, 12494 to 12496, 11840, 11841, 11823, 12209, 12162, 12281 to 12284, 12335, 12513, 12336, 12519, 12555, 11686 to 11692, 11953, 11964, 11713, 12058, 12059, 12075 to 12079, 12161, 12148, 12541, 12528 to 12530, 12354 to 12356, 12170, 12288 to 12289, 11477, 12936 and 12973 of 2012, as the question of law raised in all these writ petitions are identical.
2. In all the writ petitions, the petitioners pray for issuance of Writ, in the nature of Mandamus, to consider the cases of the petitioners, for appointment, by giving five years age relaxation as per G.O.Ms.No.98 Personnel and Administrative Reforms(S) Department dated 17.07.2006, and the petitioners have also challenged the process of selection, for the post of Conductors and Technicians, being violative of Articles 14 and 16 of the Constitution of India, as the selection is being conducted, by inviting applications through Employment Exchange alone, without inviting applications from all eligible candidates through Press Notification.
3. For the sake of brevity, the facts are taken from W.P.(MD)No.12336 of 2012.
4. The petitioner got Conductor License No.2564 of 1997 dated 24.10.1997, and got his name registered with the District Employment Officer, Kanniyakumari District. The Registration Number of the petitioner is 515 of 1999. The petitioner belongs to Backward Community. It is submitted by the petitioner, that even after 11 years of registration with the employment exchange, he has not yet been sponsored for the post of Conductor, whenever the posts were advertised, for want of seniority.
5. During the years 2007, 2010 and 2011, the Tamil Nadu State Transport Corporation (Nellai) limited, selected 800 candidates, for the post of Conductor, and the recruitment was made through the District Employment Exchange. At the time of those selections, the upper age limit was fixed at 40 years, for Backward and Most Backward Community, by giving five years age relaxation as per G.O.Ms.No.98 Personnel and Administrative Reforms(S) Department dated 17.07.2006.
6. It is submitted, that now there is a proposal to fill up 200 posts of Bus Conductors in the Tamil Nadu State Transport Corporation, and for the process of selection, the Tamil Nadu State Transport Corporation had issued instructions vide Reference No.6362/a2/TNSTC(TVL)/Ngl/2012 dated 22.08.2012. As per the Notification, the Interview was proposed to be conducted on 04.09.2012, for eligible candidates sponsored by the District Employment Officer. It is also submitted, that the upper age limit of eligibility, for Scheduled Caste and Scheduled Tribe is fixed at 40 years, whereas for Backward and Most Backward Classes at 35 years, and for general category, age fixed is 30 years. The District Employment Officer, has forwarded the list of candidates, for appointment taking into consideration the age limits, as notified.
7. It is also the submission of the petitioner that vide G.O.Ms.No.212 Personnel and Administration Department dated 30.11.2001, a ban was imposed by the Government of Tamil Nadu, for filling up vacancies in the State, and it was on the lifting of the ban, that G.O.Ms.No.98 Personnel and Administration Department dated 17.07.2006 was issued, giving relaxation of five years, to enable the unemployed youth, to apply for the Government jobs.
8. It is the submission of the petitioner that G.O.Ms.No.98 Personnel and Administrative Reforms(S) Department dated 17.07.2006, was in force when the Tamil Nadu State Transport Corporation requested the District Employment Officer, to sponsor the candidates, for the post of Conductor, and as such, the Tamil Nadu State Transport Corporation was bound to follow G.O.Ms.No.98 Personnel and Administrative Reforms(S) Department dated 17.07.2006. But, the respondents, by ignoring G.O.Ms.No.98 Personnel and Administrative Reforms(S) Department dated 17.07.2006, fixed the age limit for Backward Community up to 35 years, and thereby deprived the right of senior most, to be considered by giving benefit of age relaxation. It is also stated, that while conducting the Interview for the post of drivers, the age limit for Backward Community is fixed at 40 years.
9. The selection process and non-consideration of the case of the petitioners are questioned on the following grounds :-
i.that vide G.O.Ms.No.212 Personnel and Administrative Reforms Department dated 30.11.2001, a ban was imposed, for filling up of vacant posts in the State and Subordinate Service, by direct recruitment except in respect of certain category of posts viz., Teachers, Doctors, Police Constable. This ban remained in force for five years. Therefore, it was a legal duty of the State Government, to give benefit of age relaxation of five years, for being considered for appointment.
Therefore, the action of the respondents is violative of Article 16 of the Constitution of India.
ii.that vide G.O.Ms.No.98 Personnel and Administrative Reforms(S) Department dated 17.07.2006, it was the duty / legal obligation of the respondents, to give five years relaxation to the Backward Community candidates, and to fix the age at 40 years, therefore, this being a legal infirmity, the selection process cannot be sustained.
iii.that the interview for the post of Conductors and Drivers were conducted simultaneously. While fixing the age at 40 years for the drivers, by extending the benefit of G.O.Ms.No.98 Personnel and Administrative Reforms(S) Department dated 17.07.2006, a different criteria has been adopted in the case of conductors, therefore, the selection is violative of Article 14 of the Constitution of India.
iv.that the Tamil Nadu State Transport Corporation has failed to advertise the posts, by giving wide publication, setting out the criteria and eligibility, for the post of conductors in the Corporation, so as to enable all the eligible candidates to compete for the post.
v.that it is not open to the respondents, to fill up the posts only by calling names from the employment exchanges.
10. In all other writ petitions, the points raised are almost identical. The relief prayed for in most of the cases, is basically for grant of relaxation of five years, because of the ban, and for the reasons that the petitioners did not have opportunity to compete for the post on earlier occasion.
11. Counter Affidavits have been filed by the Tamil Nadu State Transport Corporation. The stand taken in the counters is, that service conditions of all the employees of the Transport Corporation, including the appointment, qualification for appointment and age eligibility for appointment for the post of Technicians, Conductors and Drivers are governed by the Common Service Rules (hereinafter referred to as "the Rules").
12. The Rules, which has been adopted by all the Transport Corporation which were framed by the Institute of Road Transport and approved by the Government of Tamil Nadu vide G.O.Ms.No.1373 dated 02.12.1985.
13. It is submitted, that the State Transport Corporation, being the State Government undertaking, is governed by the Government Orders laying down these Rules. The stand of the respondents is that the Rules, have force of law, having been framed by State of Tamil Nadu.
14. This contention prima facie is not correct, as each Corporation is a Company, registered under the Companies Act. Though it is a "State" within the meaning of Article 12 of the Constitution of India, each Company therefore has to frame its own Rules and Regulations, and lay down the service conditions of its employees. Reference in this regard can made to the Judgment of the Hon'ble Supreme Court of India in PUNJAB STATE WAREHOUSING CORPORATION, CHANDIGARH ..VS.. MANMOHAN SINGH AND ANOTHER (2007 (9) S.C.C. 337), wherein it has been laid down, that a Policy made by the State ordinarily applies only in respect of the employees working under it. The policy decision of the State cannot be extended to Statutory Corporation, unless it is so permitted to do so by the Statute.
15. It is the stand of the respondents, that according to the Rules, no person is eligible for appointment, by direct recruitment, to any category in the Corporation, unless he satisfies the appointing authority or the Selection Committee, that he / she has not completed upper age of 35 years on the date of sponsoring by the employment exchange.
16. Rule 11 of the Rules reads as under:-
"11. General Conditions of Appointment:-
(a) No person shall be eligible for appointment by direct recruitment to any category in the Corporation unless he satisfies the appointing authority or the Selection Committee.
(b) 1. that he is a citizen of India, or a person declared as such by the Government or by the Director of Rehabilitation of Government of Tamil Nadu.
2. that he is of sound health, possesses active habits and is free from any bodily defect or deformity.
3. that he has completed the age of eighteen (18) years of such other higher minimum age that may be prescribed for appointment to any category of post.
4. that, if no upper age limit has been prescribed for appointment by direct recruitment to the category of post to which he has sought appointment, he has not completed thirty (30) years of age or if he belongs to Backward Class / Most Backward / Denotified Community he has not completed thirty five (35) years of age, if he belongs to Scheduled Caste or Scheduled Tribe, he has not completed forty (40) years of age as on the date of sponsoring of the candidate by the Employment Exchange.
i.Provided that when the appointment is to a post in the grade of Deputy Manager, that he has not completed forty (40) years of age, of if he belongs to BC / MBC / DNC / SC / ST that he has not completed forty five (45) years of age as on the date of sponsoring of the candidate by the Employment Exchange. ii.Provided also that in the cases of repatriates from Burma and Sri Lanka who have migrated to India on or after 01.06.1963 and 01.11.1974 respectively, age relaxation may be given by the appointing authority on par with persons belonging to SC s / ST s.
iii.Provided further that, in the case of an Ex-Serviceman, age relaxation may be given by the appointing authority upto forty five (45) years of age if he does not belong to B.Cs / MBC / DNC / SCs/ STs and upto fifty (50) years of age if he belongs to B.Cs/MBC/DNC/SCs/STs.
iv.Provided further in the case Physically Handicapped person age relaxation may be given by appointing authority upto 10 years of age if he does not belong to BC / MBC / DNC / SC / ST and upto 45 years of age if he belong to BC / MBC / DNC and upto 50 years of age if he belongs to SC / ST."
17. Reliance is also placed on Rule 59(c) of Appendix III, laying down the qualification for direct recruitment of Conductors, which read as under:-
1.Must have passed the S.S.L.C. examination or the 10th Standard Public Examination (under the revised scheme of 1979) with eligibility for admission to the Higher Secondary Course, from a recognized school in Tamil Nadu.
2.Must possess a valid Conductors License, First Aid Certificate and Public Service Badge.
3.Must have the following minimum Physical Standards:
Height --- 160 cms Weight --- 45 Kgs
4.Must be free from any Physical deformity.
5.Must have completed twenty (20) years of age as on the date of sponsoring by the Employment Exchange.
Under Appendix III (Qualification for direct recruitment under Rules 59(c) - the Qualifications for direct recruitment of Technician Selection says under Part - C of Appendix III as follows:-
1.Must have passed the S.S.L.C
2.Must have passed I.T.I. Certificate examination (NTC) in any one of the Trades.
3.Must have completed the Apprenticeship under the Apprenticeship Act 1961 in any of the STUs Tamil Nadu and obtained NAC.
Note:- The I.T.I. Certificate must be in the trade of the post for which the Selection is made.
If there be no appropriate I.T.I. certificate in any particular trade (link Liner Tyreman, Tyre Retrade etc.,) the candidate must have passed S.S.L.C examination and practical experience in the type of work concerned for a period of not less than one year".
18. The submission of the respondents, therefore, is that Rules 11, 14, 58(3) and Appendix III (Qualification for direct recruitment under Rule 59(c) ) makes it clear, that persons belonging to backward classes, seeking employment as Technicians / Conductor, who have crossed the age of 35 years, have no right to be considered, for appointment being of over age.
19. It is also the submission of the respondents, that under the Service Rules, there is no provision, for relaxation of age i.e., to increase the maximum age.
20. In para 6 of the counter, the stand taken by the respondents is as under:-
"I submit that while it so, in a writ petition this Honourable Court has held that amended Rule 54-B of the Tamil Nadu State Subordinate Service Rules that with regard to relaxation of age for five years more for Backward Class or Most Backward Class candidates is also applicable and to that effect the Transport Corporation Madurai by his letter No.609/HRD/CA3/TNSTC-MDU/2010 dated 31.08.2010 has requested the Principle Secretary to Government and by the Letter No.13973/C1/2010-2 dated 10.11.2010 sent by the Principle Secretary to Government to the Managing Director Tamil Nadu State Transport Corporation, Salem, Villupuram, Kumbakonam, Madurai, Coimbatore, Tirunelveli Ltd sent the all Transport Corporation saying that in the case of person who were affected by the ban on direct recruitment imposed on the 29th November 2001, the upper age shall be raised to a maximum period of five years reckoned on and from the 17th July 2006, ending with the 16th July 2011. Since the age relaxation period or the raising of the period of 5 years to the maximum of age of 35 years is already over by 16.07.2011 for the petitioners he cannot seek to raise the upper age limit for 5 more years as his request is already time barred by 16.07.2011. So the respondent Transport Corporation have no power and authority to raise the maximum age as the period of eligibility to raise the age is already expired on 16.07.2011 for the petitioner and hence 2nd respondent Transport Corporation cannot raise the maximum age by another 5 years. There is no Government Order available in favour of the writ petitioner to raise the maximum age for 5 more years beyond to expire dead line on 16.07.2011. So, when there no enabling provision to raise the maximum period to for 5 more years under the existing Rules there is no provision available to raise the maximum age or for the relaxation or age beyond 16.07.2011. So, the petitioner is not eligible, not entitled to get the maximum age raise as per the present Law. What he cannot ask for directly he cannot also ask for indirectly by filling the writ petition".
21. The stand of the respondents is, that the petitioners have no vested right, to claim relaxation of five years. Similarly the employment exchange also does not have any such authority.
22. In para 10 of the counter, it is stated, that the ultimate employer is the State Government. The State has taken a policy decision not to grant age relaxation to the petitioners. The decision of the Government cannot said to be arbitrary.
23. This stand of the respondents, on the face of it, is mis- conceived and not sustainable in law. The Tamil Nadu State Transport Corporation, is a Company registered under the Companies Act. The persons appointed by it are not the government employees, though they are entitled to protection under Part III of the Constitution of India, as Transport Corporation comes within the meaning "State" under Article 12 of the Constitution of India.
24. It is also the submission of the respondents, that though no upper age limit is prescribed in the Appendix of the Rules, for appointment to the posts of Conductors or Technicians, but in view of Rule 11(4) of the Rules, the age limit is 35 years. It is also the stand of the respondents, that the Corporations has notified the available vacancies to the employment exchange as per the Rules, which are applicable to all transport corporation employees under the State of Tamil Nadu. It is also the stand of the respondents, that under the Rules, vacancies are to be notified to the employment exchange under the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 (hereinafter referred to as "the Act").
25. Section 4(1) of the Act reads as under:-
"4(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 area shall, before filling up any vacancy in any employment in that establishment, notify that vacancy to such employment exchanges as may be prescribed."
26. The maintainability of writ petitions is also challenged, on the ground, that the Hon'ble Supreme Court of India in MAN SINGH ..VS.. COMMISSIONER, GARHWAL MANDAL PAURI AND OTHERS (2009 (11) S.C.C. 448), has laid down, that when the appellant's name was not sponsored by the employment exchange, and not considered, it could not be held to be bad in law.
27. It is the stand of the respondents, that a similar view was taken by the Hon'ble Supreme Court in ARUN TEWARI ..VS.. ZILA MANSAVI SHILSHAK SANGH (1998 (2) S.C.C. 332), and in AVTAR SINGH HIT ..VS.. DELHI SIKH GURDWARA MANAGEMENT COMMITTEE (2006(8) S.C.C. 487). Reliance was also placed by the respondents on the Judgment of a Division Bench of this Court in REGISTRAR GENERAL, HIGH COURT, CHENNAI ..VS.. THE DISTRICT EMPLOYMENT EXCHANGE OFFICER AND OTHERS.
28. Para 22 of the counter, which is in the nature of written argument is reproduced here under:-
22. I submit that the following questions were raised before the Division Bench of this Hon'ble Court in a suo motto writ petition the Registrar General, High Court, Chennai - Vs - The District Employment Exchange Officer, and others reported in 2008 (5) M.L.J 1252.
i.Whether those who have not enrolled with the Employment Exchange stands excluded from consideration of their case for appointment, if the names are only called for from the Employment Exchange and no advertisement is issued? ii.Whether the instruction issued by the Government that in the case of Government Departments the field of choice should, in the first instance, be restricted to candidates sponsored by the Employment Exchange offend Article 14 and 16 of the Constitution?
The Division Bench of this Hon'ble Court answered those questions as follows:-
The learned counsel appearing for some of the respondents strenuously urged that such a restriction would offend the equality clauses of the Constitution, namely Articles 14 and 16. He urged that when Parliament had gone into the question and decided that there should be no compulsion in the matter of appointment by way of restriction of the field of choice, it was not open to the government to impose such compulsion. He argued that it would be unreasonable to restrict the field of choice to those sponsored by the Employment Exchanges. In a country so vast as India, in a country where there was so much poverty, illiteracy and ignorance, it was not right that employment opportunities should necessarily be channelled through the Employment Exchanges when it is not shown that the network of Employment Exchanges is so wide, that it reaches all the corners of this vast country. He argued that it is futile to expect that persons living in distant places could get themselves registered with Employment Exchanges situated far away. The submission of Shri Parmeshwara Rao is indeed appealing and attractive. Nonetheless, we are afraid we cannot uphold it. 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."
29. This submission is misplaced. The judgment reported in 2008 (5) M.L.J. 1252 is R. AMIRTHAVENI AND ANOTHER ..VS.. DISTRICT EMPLOYMENT EXCHANGE OFFICER, DHARMAPURI DISTRICT AND OTHERS, where this Court was pleased to lay down, that Section 4 of the Act does not impose any obligation upon the employer, to recruit any person through employment exchange, to fill up the vacancy. The employer has option to call for the applications through open advertisement, and on assessment of merit, may appoint suitable persons, including those not recommended by the employment exchange.
30. The observation of the Hon'ble Division Bench in para 15 of the judgment, on which reliance was placed by the learned Advocate General, stands over ruled by the Hon'ble Supreme Court. It was for this reason, that learned Advocate General did not rely on the decision at the time of argument, though it formed part of the counter affidavit.
31. In order to appreciate the stand of the respondents, paras 23 and 24 of the counter are also reproduced hereunder:-
23. I submit that in ARUN TEWARI ..VS.. ZILA MANSAVI SHIKSHAK SANGH AND OTHERS ETC., REPORTED IN A.I.R. 1998 S.C. 331, the Hon'ble Supreme Court in a similar circumstances held as follows:
"The next contention relates to inviting applications from employment exchanges instead of by advertisement. This procedure has been resorted to looking to the requirements of a time-bound scheme. The original applicants contended that if the posts had been advertised, many others like them could have applied. The original applicants who so complain, however, do not possess the requisite qualifications for the post. As far as we can see from the record, nobody who had the requisite qualifications, has complained that he was prevented from applying because advertisement was not issued. What is more important, in the special circumstances requiring a speedier process of selection and appointment, applications were invited through employment exchanges for 1993 only. In this context, the special procedure adopted is not unfair. The State has relied upon the case of Union of India vs. N. Hargopal and others (1987 (3) S.C.C. 308), where Government instruction enjoining that the field of choice should, in the first instance, be restricted to candidates sponsored by the employment exchanges, was upheld as not offending Articles 14 and 16 of the Constitution. In the case of Delhi Development Horticulture Employees' Union v. Delhi Admn., (1992 (4) S.C.C 99) this Court approved of recruitment through employment exchanges as a method of preventing malpractices. But in the subsequent and more recent case of Excise Supdt. v. K.B.N. Visweshwara Rao (1996 (6) S.C.C. 216) this Court has distinguished Union of India v. Hargopal (SUPRA) on the basis of special facts of that case. It has observed that the better course for the State would be to invite applications from employment exchanges as well as to advertise and also give wide publicity through TV, Radio, etc. The Court had to consider whether persons who had applied directly and not through employment exchange should be considered. This Court upheld their claim for consideration."
There are different methods of inviting applications. The method adopted in the exigencies of the situation in the present case cannot be labelled as unfair, particularly when, at the relevant time, the two earlier decisions of this Court were in vogue.
We do not see any reason to fault the procedure prescribed or the qualifications prescribed or to set aside these selections and consequent appointments since none of the grounds on which the amendments, circulars and selections have been challenged, is sustainable in law.
24. I submit that this Hon'ble Court in S.S.SEETHAVASAN ..VS.. THE GOVERNMENT OF TAMIL NADU reported in 2010 (4) M.L.J. 15 held that "the Supreme Court while dealing with the questions of fixing of retirement age by employer, held that it is prerogative of legislature and the Court cannot grant any direction entering into such arena. The Supreme court B.BHARAT KUMAR..VS.. OSMANIA UNIVERSITY reported in 2007 (11) S.C.C. 58 held in paragraph 23 as follows. Further, merely because in Yashpal case the observation about the gamut of the University does not necessarily mean that State Government will not be able to decide the age of retirement, particularly where it has the discretion to do so as also the Legislative Powers".
32. It is also necessary to reproduce Rule 14 of the Rules, which deals with Mode of Direct Recruitment, which reads as under:-
"14. Mode of Direct Recruitment:-
(a)All appointments by direct recruitment to categories of posts included in the Managerial cadre Supervisory Groups, Working Groups, and miscellaneous Groups shall be through the employment exchange, unless such recruitment is otherwise than through employment exchange permissible under any specific orders of Government or such requirement has been waived by Government in the case or cases of any individual or individuals.
(b)Notwithstanding the provisions of sub-rule (a) above
1. A permanent employee of the Corporation, who possesses all the qualifications and experience prescribed in these rules for direct recruitment to a category / post may, if applied for, be considered for such direct recruitment subject to his relinquishing all his rights in respect of the post held by him at the time of such appointment and he shall be allowed to deduct the period of his service upto a maximum of ten (10) years from his age for the purpose of maximum age limit - vide rule - 11.
Note:-
The provisions of this sub-rule are to be read with the provisions of rule 37 herein below.
2. A Member of the family of an employee, who had put in more than 240 days of work in a year and who died in harness (while in the service of the Corporation) shall be eligible for recruitment to any post for which there is provision for direct recruitment, without following the normal procedure of recruitment through employment exchange, and taking into account of the indigent circumstances, subject to the following conditions.
i. The recruitment shall be subject to availability of vacancies. ii. The term "Member of Family" shall mean and is restricted to include only the wife / husband / son / unmarried daughter / legally adopted son / unmarried adopted daughter of the deceased employee.
NOTE:-
Cases of near relatives such as brothers, sisters, married daughters of the deceased employee should be excluded.
iii. The candidates seeking employment must possess all prescribed qualifications for the post applied for and these conditions should not be relaxed in any case except as provided in the provision under sub-rule (a) of Rule 12.
iv. At the time of consideration of the case of the dependent of the deceased employee for appointment the actual age of the son or unmarried daughter / widow of the deceased employee should not be more than 30/40 years on the date of death of the employee.
Ref:- Government Letter No.43991/C2/82-4 Transport Department Dated 28.12.1982. Explanation I:- No distinction need be made between natural death, death by murder or suicide, etc., Explanation II:- The appointing authorities are responsible for satisfying themselves about the indigent circumstances of the family of the deceased employee before the appointment is offered. Explanation III:- Dependent of an employee who dies after his retirement are not eligible for the concession under this rule.
(c) In cases where the employment exchange is not able to recommend sufficient number of candidates with the requisite qualification or experience, the Management, may, after obtaining non-availability certificate from the employment exchange, recruit from the open market by advertisement in news papers calling for applications for such posts irrespective of whether they are included in the working group / miscellaneous groups or in the Supervisory Groups or in the Managerial cadre.
(d)The order of priority for recruitment of persons to various posts shall be as may be laid down by the Government of Tamil Nadu or by the Board from time to time.
3. Preference will be given to the drivers trained by the Institute of Road Transport and State Transport Undertakings in the matter of appointment of Driver through Employment Exchange."
33. A reading of the Rule 14 of the Rules shows that even as per the Rule, the calling of names through employment exchange alone, is not mandatory. In any case, if the Rule 14 of the Rules is read, as submitted by the respondents, that employment can be made through employment exchange alone, then it has to be declared ultra vires the Constitution, being violative of Articles 14 and 16 of the Constitution of India. The appointment to post in Government service or its authorities through employment exchange alone cannot be sustained in law.
34. On the pleadings referred to above, two questions arise for determination in all these writ petitions viz., i.Whether the process of selection adopted by respondents Corporation, for filling up the posts of Conductors and Technicians is hit by Articles 14 and 16 of the Constitution of India, thus liable to be quashed ? ii.Whether the petitioners are entitled to age relaxation of five years, for being considered for appointment, to the posts of Conductors and Technicians?
35. Learned counsel for the petitioners vehemently contended, that the object behind framing of recruitment rules, is to provide equal opportunity to all the citizens entitled, for being considered, for recruitment to the vacant posts. Therefore it is not open to the respondents, to frame any rules, which deny equal opportunity, to all citizens, for right of consideration to the public posts / employment in State Government undertaking.
36. In support of this contention, reliance was placed on the Judgment of the Hon'ble Supreme Court in PRINCIPAL, MEHAR CHAND POLYTECHNIC AND ANOTHER ..VS.. ANU LAMBA AND OTHERS (2006 (7) S.C.C. 161).
37. It is also the contention of the learned counsel for the petitioners, that appointment to public or Government posts 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.
38. In support of this contention, reliance was placed on the decision of a Full 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).
39. It was next contended, that the statutory provisions in the Act only requires the intimation of vacancies, to employment exchange and there is no obligation, for recruitment of candidates sponsored only by the employment exchange. It is, therefore not open to the respondents, to ignore the candidates, who are otherwise eligible, for being considered for appointment merely because their names were not sponsored by the employment exchange.
40. In support of this contention, reliance was placed on the Judgment of the Full Bench of Calcutta High Court in RABINDRA NATH MAHATA ..VS.. STATE OF WEST BENGAL AND OTHERS (2005 (5) C.T.C. 161).
41. Reliance was also placed on the Judgment of the Hon'ble Supreme Court in UNION OF INDIA AND OTHERS ..VS.. N.HARGOPAL AND OTHERS (1987 (3) S.C.C. 308), wherein the Hon'ble Supreme Court held, that employers are not bound, to appoint only the persons sponsored by the employment exchange, and the employers are only to notify the vacancies.
42. Reliance was also placed on the decision of 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), wherein the State Government was directed, 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.
43. The learned Advocate General appearing on behalf of the respondents referred to letter Ka.No.5531/Nee.Ya.2/TNSTC/Tli/2012-1 dated 16.07.2012, of the Tamil Nadu State Transport Corporation Tirunelveli Limited, Tirunelveli Region addressed to the District Employment Officer, District Employment Exchange, Tirunelveli, calling the list of eligible candidates of all Communities, to fill up 135 vacancies for the post of Conductors. The letter and the Notification reads as follows:-
"TAMIL NADU STATE TRANSPORT CORPORATION TIRUNELVELI LIMITED TIRUNELVELI REGION Ka.No.5531/Nee.Ya.2/TNSTC/Tli/2012-1 Dated : 16.07.2012 To The District Employment Officer, District Employment Exchange, Tirunelveli.
Sir, Sub: Appointment - Conductor (Daily Wages) Selection - Notification sent - Regarding.
* * * * * * We are sending herewith the Notification to send a list of eligible candidates with particulars of all communities to fill up 135 vacancies for the Conductor Post in the Tamil Nadu State Transport Corporation Tirunelveli Limited, Tirunelveli Region. We request you to send the list of candidates who are satisfying the qualification prescribed in the Notification quickly to this office.
Sd/- Sd/- Assistant Manager(AD) General Manager Encl.:Notification" ANNEXURE
NOTIFICATION FORM TO BE USED WHEN CALLING FOR APPLICANTS FROM EMPLOYMENT EXCHANGES FOR RECRUITMENT TO STATE GOVERNMENT / STATE QUASI / LOCAL BODY VACANCIES 1 (a) Office / Department & Address & Phone No. TAMIL NADU STATE TRANSPORT CORPORATION (TNV) LIMITED, TIRUNELVELI
(b) Sector to which the employer belongs Public Sector Undertaking - Transport (Tick whichever is applicable) - Tirunelveli 2 Name and Designation of indenting Officer S. MURUGAN B.E., and Telephone Number GENERAL MANAGER, TNSTC (TNV) LIMITED, TIRUNELVELI REGION 2500393 3 Name and Designation of the Officer to GENERAL MANAGER, whom the applicants should report TNSTC(TNV) LIMITED, TIRUNELVELI.
4 Date, time and place of interview A list of suitable candidates can be sent.
We will call them for interview and selection on a convenient date to us.
Place of interview:
5(a) Designation of the posts CONDUCTOR (DAILY WAGES)
(b) Wages Rs.229/- per day Place of work TIRUNELVELI Total number of posts 135 Break - up by number of posts - - -
Details of Reservation for various communities / categories as per rule of the Tamil Nadu State and Subordinate Services Rules and other relevant Government Orders, viz., 1 G.O.Ms.No.983 Personnel and Administrative For Physically Handicapped Reforms (Personnel- P) Department dated 07.10.1986 2 G.O.Ms.No.616, Personnel and Administrative For Ex-Servicemen Reforms (Personnel - R) Department dated 06.07.1987 3 G.O.Ms.No.89, Personnel and Administrative For Women Reforms (Personnel - S) Department dated 17.02.1989 4 G.O.Ms.No.242 BCW, NMP & SW Department For Backward Class / Most Backward Classes / dated 28.03.1989 Denotified Communities 5 G.O.Ms.No.541 Personnel and Administrative For priority and non-priority Reforms (Personnel-R) Department dated 29.09.1989 6 G.O.Ms.No.1090 Adi Dravidar and Tribal Welfare For Scheduled Castes and Scheduled Tribes Department dated 22.06.1990 7 G.O.Ms.No.85 Personnel and Administrative Communal Roaster Reforms Department dated 06.05.2000 8 G.O.Ms.No.105 Personnel and Administrative Communal Roaster Reforms Department dated 20.05.2000 GENERAL BOTH MEN AND WOMEN Schedule Caste Schedule caste Schedule Tribe Back ward Back ward Most Backward Open Reserved Arundadiyar Class (Other Class Muslim classand Denotified competi for than Muslim) communities tion Ex-Serviceman in respect of LGGsonly Priority Non Priority Non Priority Non PriorityNon PriorityNon Priority Non Priority Non Priority Priority Priority Priority Priority Priority Priority 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 4 16 1 3 -- 1 7 29 1 4 5 22 8 34 --
WOMEN The Suitability of the women candidates for the post notified to be ensured by the employer himself Schedule Caste Schedule Tribe Back ward Most Backward Open Reserved for Class classand' and competi Ex-Serviceman Denotified tion in respect of communities LGGsonly PriorityNon PriorityNon PriorityNon Priority Non PriorityNon Priority Priority Priority Priority Priority Priority 16 17 18 19 20 21 22 23 24 25 26 Need not be Spo nsor ed PHYSICALLY HANDICAPPED (The suitability of the physically handicapped candidates for the posts notified to be ensured by the employer himself) Schedule Caste Schedule Tribe Back ward Most Backward and Open Class classand' competi Denotified tion communities Women General Women General Women General Women General Women General 27 28 29 30 31 32 33 34 35 36 Need not be Spo nsor ed vide Govt LrNo 25074/SW IV/89-4 dt.
01.06.90 BLIND NIL DEAF NIL ORTHO NIL PHYSICALLY HANDICAPPED NIL NUMBER OF VACANCIES:- 6.Duration of vacancies : 240 days daily wages
Permanent Temporary less Temporary 3 months Temporary likely to than 3 months and above be continued beyond one year 1 2 3 4
- - - - - - - - -
7.Qualifications required (Copy of Service Rules in respect of qualification, equivalent Qualifications, Age limit and Age relaxation to be furnished) - enclosed. a. Essential :
1.Academic: Must have passed SSLC or X Std., Public examinations under the revised scheme of 1979 with eligibility for admission to Higher Secondary course from a recognised school in Tamil Nadu
2.Technical: (State with authority particulars of equivalent technical qualification) Must possess a valid Conductor license First Aid Certificate and Public service badge and physical fitness b. Whether there is any relaxation in qualification available for certain NIL categories of applicants c.
1.Age Limit SC ST MBC BC OC Maximum 40 40 35 35 30 Minimum 20 20 20 20 20
2. Crucial date 01.07.2012 for reckoning the age limit
3. Upper age NIL limit relaxation, if any d. 1. Height 160 CMS
2. Weight 45 Kgs.
Scheduled Scheduled Most Backward Open Caste Tribe Backward Class Competition class Destitued Widow -- Ex-Servicemen -- Physically Handicapped -- Employed Person -- (Definition should be provided by the employer) Others (if any) may be - - specified in detail
8.Whether willing to wait and consider applicants from - - - -
other exchange areas in case local applicants are not available
9.Whether Rule 12(d) of the General Rules for the Tamil Nadu State and Subordinate Services will be applicable to the vacancy / vacancies notified in this proforma (Vide Govt. Letter No.48882/N2/96-3, L&E, Department dated 03.03.1998
10.Any other information considered relevant NIL
1.Certified that while placing the demand, instructions of the Government have been fully complied with by duly examining the roaster maintained for communal rotation and reservation for priority and non-priority categories.
2.Certified that while placing this demand, qualifications and conditions other than those prescribed for the post in the special rules have not been insisted upon.
3.Certified that all applications for appointment on compassionate ground have been taken into account and eligible cases are pending for appointments on compassionate ground as on date of sending this vacancy notification.
4.Certified that suitable candidates have been considered from / are not available in the list of retrenched personnel maintained by the authorities concerned / Officer-in-charge of the closed units belonging to Government / Quasi Government / Local Body etc., and that the Government orders/ instructions issued in this regard have been strictly adhered to.
Sd/- Sd/- Asst. Manager (Pers) General Manager"
44. A reference was also made to section 4 of the Act, to support the action of the respondents in calling the names through employment exchange alone, without issuing public notice and inviting applications from all eligible persons.
45. The learned Advocate General also referred to the Announcement made by the Hon'ble Chief Minister under Rule 110 of the Tamil Nadu Legislative Assembly Rules, which reads as under:-
"Filling up vacancies:-
Since the number of routes operated by the Tamil Nadu State Transport Corporations has been increased to 20,000 totally 16,661 vacancies including 6,910 posts of drivers, 7,402 posts of conductors and 2,349 posts of technicians including the posts that will fall vacant due to retirement up to 31.03.2013 will be filled up. In those vacancies totally 9,157 badhili workers including 4,511 badhili drivers, 4,558 badhili conductors and 88 badhili technicians will be appointed permanently".
46. A reference was also made to the Memorandum of Association and Articles of Association of the Tamil Nadu State Transport Corporation (Tirunelveli) Ltd., Tirunelveli, wherein it is stipulated, that the Government has a right from time to time to issue such directions or instructions, as they may think fit, in regard to the finances, and the conduct of the business, and affairs of the Company, and the Directors shall duly comply with, and give effect to such directives or instructions.
47. This contention has to be noticed to be rejected, for the reason, that though it is permissible for the Government, to give directions, being the majority shareholder in a Company, but those instructions have to be adopted by the Board of Directors. These instructions do not automatically apply, as the Corporation is governed by its own Rules and Regulations. The Government Orders do not automatically apply to the Corporation, as was contended by the learned Advocate General.
48. The learned Advocate General has vehemently contended, that all the writ petitions deserve to be dismissed, for the reason that none of the petitioners are eligible for appointment to the post of Conductor or Technician, as they are admittedly over aged. It is not for this Court, to take a policy decision for increasing the age. Once the petitioners are not eligible, they have no right to challenge the process of selection.
49. The learned Advocate General vehemently contended, that the process of calling names from employment exchange alone, as per the Rules, cannot be said to be bad in law or violative of Articles 14 and 16 of the Constitution of India, as the filling up of the posts through employment exchange is a recognized mode under the service law.
50. In support of this contention, the learned Advocate General placed reliance on the decision of the Hon'ble Supreme Court in ARUN TEWARI AND OTHERS ..VS.. ZILA MANSAVI SHIKSHAK SANGH AND OTHERS (1998 (2) S.C.C. 332) wherein the Hon'ble Supreme Court has been pleased to lay down as under:-
"20. The next contention relates to inviting applications from employment exchanges instead of by advertisement. This procedure has been resorted to looking to the requirements of a time-bound scheme. The original applicants contended that if the posts had been advertised, many others like them could have applied. The original applicants who so complain, however, do not possess the requisite qualifications for the post. As far as we can see from the record, nobody who had the requisite qualifications, has complained that he was prevented from applying because advertisement was not issued. What is more important, in the special circumstances requiring a speedier process of selection and appointment, applications were invited through employment exchanges for 1993 only. In this context, the special procedure adopted is not unfair. The State has relied upon the case of Union of India v. N. Hargopal (1987 (3) S.C.C. 308) where Government instruction enjoining that the field of choice should, in the first instance, be restricted to candidates sponsored by the employment exchanges, was upheld as not offending Articles 14 and 16 of the Constitution. In the case of Delhi Development Horticulture Employees' Union v. Delhi Admn.,(1992 (4) S.C.C. 99), this Court approved of recruitment through employment exchanges as a method of preventing malpractices. But in the subsequent and more recent case of Excise Supdt. v. K.B.N. Visweshwara Rao (1996 (6) S.C.C. 216) this Court has distinguished Union of India v. Hargopal on the basis of special facts of that case. It has observed that the better course for the State would be to invite applications from employment exchanges as well as to advertise and also give wide publicity through TV, Radio, etc. The Court had to consider whether persons who had applied directly and not through employment exchange should be considered. This Court upheld their claim for consideration.
21. There are different methods of inviting applications. The method adopted in the exigencies of the situation in the present case cannot be labelled as unfair, particularly when, at the relevant time, the two earlier decisions of this Court were in vogue."
51. The learned Advocate General also placed reliance on the decision of the Hon'ble Supreme Court in DELHI DEVELOPMENT HORTICULTURE EMPLOYEES' UNION ..VS.. DELHI ADMINISTRATION, DELHI AND OTHERS (1992 (4) S.C.C.
99), wherein the Hon'ble Supreme has been pleased to lay down as under:-
"23. Apart from the fact that the petitioners cannot be directed to be regularised for the reasons given above, we may take note of the pernicious consequences to which the direction for regularisation of workmen on the only ground that they have put in work for 240 or more days, has been leading. Although there is an Employment Exchange Act which requires recruitment on the basis of registration in the Employment Exchange, it has become a common practice to ignore the Employment Exchange and the persons registered in the Employment Exchanges, and to employ and get employed directly those who are either not registered with the Employment Exchange or who though registered are lower in the long waiting list in the Employment Register. The courts can take judicial notice of the fact that such employment is sought and given directly for various illegal considerations including money. The employment is given first for temporary periods with technical breaks to circumvent the relevant rules, and is continued for 240 or more days with a view to give the benefit of regularisation knowing the judicial trend that those who have completed 240 or more days are directed to be automatically regularised. A good deal of illegal employment market has developed resulting in a new source of corruption and frustration of those who are waiting at the Employment Exchanges for years. Not all those who gain such backdoor entry in the employment are in need of the particular jobs. Though already employed elsewhere, they join the jobs for better and secured prospects. That is why most of the cases which come to the courts are of employment in government departments, public undertakings or agencies. Ultimately it is the people who bear the heavy burden of the surplus labour. The other equally injurious effect of indiscriminate regularisation has been that many of the agencies have stopped undertaking casual or temporary works though they are urgent and essential for fear that if those who are employed on such works are required to be continued for 240 or more days they have to be absorbed as regular employees although the works are time-bound and there is no need of the workmen beyond the completion of the works undertaken. The public interests are thus jeopardised on both counts."
52. On consideration, this Court finds that:-
The Rules framed by the Transport Corporations to regulate the service conditions, are required to be in consonance with Part III of the Constitution of India, being a State within the meaning of Article 12 of the Constitution of India.
53. Articles 14 and 16 of the Constitution of India reads as under:-
"14. Equality before law:- The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
16. Equality of opportunity in matters of public employment:- (1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. (2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State. (3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union Territory prior to such employment or appointment. (4) Nothing in this Article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.
(4-A) Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which in the opinion of the State are not adequately represented in the services under the State. (4-B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4-A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty percent reservation on total number of vacancies of that year.
(5) Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination".
54. A reading of Article 16 of the Constitution of India, reproduced above would show, that it is the constitutional duty of the State, to give equal opportunity to all the citizens in the matter relating to employment or appointment to any office under the State.
55. 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."
56. This view is 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."
57. 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.
58. 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).
59. In view of the settled law, the reliance by the respondents on the judgment of the Hon'ble Supreme Court in MAN SINGH ..VS.. COMMISSIONER, GARHWAL MANDAL PAURI AND OTHERS (supra) cannot advance the case of the respondents, as the Hon'ble Supreme Court in the latest judgment held that earlier view of the Hon'ble Supreme Court that appointment by the names from the employment exchange will be valid is no longer good law.
60. The reliance on the Judgment of the Hon'ble Supreme Court in ARUN TEWARI ..VS.. ZILA MANSAVI SHILSHAK SANGH (supra) is also misplaced as the Hon'ble Supreme Court nowhere laid down, that names from the employment exchange alone can be called. It was on the peculiar facts and circumstances of the said case, that the Court did not interfere with selection process for want of eligibility of the petitioners to challenge the selection. This judgment, again has no application to facts of this case. Similarly, reliance on the Division Bench of this Court is misplaced rather contemporaneous, as the view of the Hon'ble Division Bench stands overruled by the Hon'ble Supreme Court in STATE OF ORISSA AND ANOTHER ..VS..f MAMATA MOHANTY (2011 (2) S.C.T. 718).
61. 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.
62. In view of what has been stated above, the first question is answered in favour of the petitioners, and Notifications issued by all Corporations, inviting applications through only employment exchange are ordered to be quashed.
63. This process of appointment through employment exchange is prima facie arbitrary, as it is clear from the facts of the cases referred to above. The respondents are not only filling up the posts, by requesting the employment exchange to sponsor the names of eligible candidates, but have also allowed the employment exchanges, to lay down their own criteria of recommending the names based on seniority, and thereby leaving it to the choice of the employment exchange, to consider the eligibility conditions of the employees to be appointed. This process has resulted in many of the eligible candidates not getting chance to be considered for employment, in Government undertaking as in number of occasions, name of the person registered with employment exchange for more than 20 years earlier were not given any chance to compete for the post, for want of seniority. This has resulted in many eligible persons becoming overage without any chance to be considered. This process, therefore on the face of it, is arbitrary, and cannot be accepted in any civilized society.
64. In support of the second question, as to whether the petitioners are entitled to relaxation of five years, the learned counsel for the petitioners vehemently contended, that all the petitioners had been registered with employment exchanges, and are waiting for employment for number of years.
65. It is the contention of the learned counsel for the petitioners, that on previous occasion, the petitioners though eligible for appointment, were not sponsored because of seniority, and when their names reached within the zone of seniority, they were not sponsored because of the ban imposed by the State Government. Therefore, by adopting this arbitrary and unconstitutional practice in the matter of appointment exclusively through employment exchange, the petitioners have lost their valuable right, of appointment as guaranteed under Article 16 of the Constitution of India.
66. It was also contended by the learned counsel for the petitioners, that it was in view of this fact, that the Government issued G.O.Ms.No.98 Personnel and Administrative Reforms(S) Department dated 17.07.2006, giving relaxation of five years of age.
67. Though prima facie, this G.O.Ms.No.98 Personnel and Administrative Reforms(S) Department dated 17.07.2006 is not automatically applicable to the Transport Corporation, but, it is admitted by the respondents, in the counter that in view of the decision of this court, a Notification was issued, to apply it to the State Corporations.
68. The State Government did not challenge the decision of this Court, but accepted it.
69. As per the decision, State Government agreed to grant age relaxation of 5 years, for employment in State owned Corporations, which is part of the "State" within the meaning of Article 12 of the Constitution of India.
70. G.O.Ms.No.98 Personnel and Administrative Reforms(S) Department dated 17.07.2006 reads as under:-
"ABSTRACT Personnel - Tamil Nadu State and Subordinate Services - Ban on recruitment
- lifted - Relaxation of upper age limit for entering the Government service by five years to unemployed youth - Orders - issued.
- ------------------------------------------------------------------------------
-------------
PERSONNEL AND ADMINISTRATIVE REFORMS (S) DEPARTMENT G.O.Ms.No.98 Dated 17.07.2006 Read:
1.G.O.Ms.No.212 Personnel and Administrative Reforms (P) Department dated 29.11.2001.
2.G.O.Ms.No.14 Personnel and Administrative Reforms (P) Department dated 07.02.2006.
* * * * * ORDER:-
The Government in their orders First read above, have issued orders banning the filling up of vacant posts in the State and Subordinate Services by direct recruitment, except in respect of certain categories of posts considered essential, such as Teachers, Doctors and Police Constabulary. In their orders Second read above, the above ban on direct recruitment was lifted with immediate effect.
2. His Excellency the Governor of Tamil Nadu, in his address in the Tamil Nadu Legislative Assembly on 24.05.2006 has among others announced that the upper age limit for entering into Government service will be relaxed by five years to enable the unemployed youth affected by the ban order to recruitment, to apply for government jobs.
3. The Government after careful consideration, accordingly direct that the upper age limit for entering into Government service shall be relaxed by five years, to enable the unemployed youth affected by the ban order on recruitment, to apply for Government jobs.
4. Necessary amendments to the General Rules for the Tamil Nadu State and Subordinate Services will be issued separately.
(BY ORDER OF THE GOVERNOR) GIRIJA VAIDYANATHAN SECRETARY TO GOVERNMENT"
71. The right of the petitioners is sought to be defeated by the respondents, by making reference to Rule 54-B of the Tamil Nadu State and Subordinate Services Rules, which read as under:-
" 54-B. Age concession for persons affected due to the ban on direct recruitment:- Notwithstanding anything contained in the Special Rules for the various State and Subordinate Services or in any adhoc rules applicable to any temporary post, in the case of a person who have been affected due to the ban on direct recruitment that was imposed on the 29th November 2001, the upper age limit shall be raised to a maximum period of five years reckoned on and from the 17th July 2006, ending with the 16th July, 2011, in computing his age for appointment to any post under the State Government except the categories of posts of Teachers, Doctors and Police Constabulary and shall be applicable in respect of notifications issued or selections made by competent recruiting authorities or appointments made by competent appointing authorities during the aforesaid period". (Emphasis supplied)
72. The learned Advocate General and other Counsel appearing on behalf of the respondents have not been able to explain how G.O.Ms.No.98 Personnel and Administrative Reforms(S) Department dated 17.07.2006, which gave general relaxation of age was modified, while incorporating it as Rule 54-B of the Tamil Nadu State and Subordinate Services Rules, by adding that the benefit of five years relaxation is only applicable from 17th JULY 2006 to 16th JULY 2011.
73. Once in exercise of powers under Article 309 of the Constitution of India, G.O.Ms.No.98 Personnel and Administrative Reforms(S) Department dated 17.07.2006 was issued, giving relaxation of five years of age, in appointment to the Government service, which was extended to the State Corporations, the right could not be taken away by subsequent G.O.Ms.No.114 Personnel and Administrative Reforms Department dated 11.08.2010, as G.O.Ms.No.98 Personnel and Administrative Reforms(S) Department dated 17.07.2006, stipulated that relaxation would be incorporated in the Rules. This was required to be incorporated, as such, and and not modified. It is well settled law, that Rules framed under Article 309 of the Constitution of India, can only be amended or modified, by following the same procedure.
74. Rule 54-B of the Tamil Nadu State and Subordinate Services Rules therefore, on the face of it, is arbitrary, as it has no nexus with object sought to be achieved. The posts to be filled up fell vacant prior to 16.07.2011, therefore right of eligible persons cannot be taken away by modifying the rule framed by Hon'ble Governor while incorporating it as rule. Otherwise also, while G.O.Ms.No.98 Personnel and Administrative Reforms (S) Department dated 17.07.2006, was adopted by transport corporations, subsequent G.O., framing Rule 54-B has not been adopted by transport corporations. Therefore, the transport corporations are bound by G.O.Ms.No.98 Personnel and Administrative Reforms (S) Department dated 17.07.2006 and not Rule 54-B of the Tamil Nadu State and Subordinate Services Rules.
75. The contention of the learned Advocate General, that it is the policy decision of the State Government, whether to grant or not to grant the age relaxation cannot be disputed. It is true, that this Court, by issuing a writ, in the nature of Mandamus, cannot direct the State Government, to frame the Rules with regard to age or other conditions of service, as it is the prerogative of the Corporation or the State, to take a decision in this regard. But, at the same time, in view of the admission in the counter, that State Government had taken a policy decision by accepting the order of this Court, and had issued directions to make G.O.Ms.No.98 Personnel and Administrative Reforms(S) Department dated 17.07.2006, applicable for employees to the State agencies. This right could not be taken away by Rule 54-B of the Tamil Nadu State and Subordinate Services Rules, in garb of incorporating Notification in the Rules, specially when this Rule is not adopted by the State Corporations.
76. The second question is also decided in favour of the petitioners, and it is held, that the candidates applying for the posts will be entitled to benefit of five years relaxation in age.
77. In view of what is stated above, all these writ petitions are allowed.
(1) A writ in the nature of Certiorari is issued quashing the impugned Notifications, calling the names for appointment to the posts of Conductors and Technicians only through employment exchanges.
(2)A writ in the nature of Mandamus is issued, directing the respondents,
(a)to advertise the posts in all leading newspapers, having wide circulation, and display the Notification on the Notice Board or by announcement in radio and television, so as to enable all the eligible candidates to apply for the posts ; The advertisement should disclose number of posts, reserved posts and eligibility conditions etc.,
(b)to interview the eligible candidates as per the criteria to be laid down by the Selection Committee and selection be made purely on merit and not on the employment seniority.
(3)All the appointments for filling up the posts in pursuance to the Notifications were stayed by this Court. Therefore, if any selection has been made in violation of the Stay order granted by this Court, it shall not give any right to the selected candidates for appointment / or to continue in the post.
(4)In view of the fact that number of posts are lying vacant, it would be appreciated that the advertisement in the leading newspapers, having wide circulation be published preferably within one month from the date of receipt of a certified copy of this order.
No costs.
Consequently, all the connected miscellaneous petitions are closed.
Dpn/-
To The District Employment Officer, O/o. The District Employment Exchange, Tirunelveli.