R.Amirthaveni v. The District Employment Exchange Officer, District Employment Exchange Office, Railway Station Road, Dharmapuri District

Writ Petition No.33647 of 2007 filed under Article 226 of theConstitution of India, praying for issuance of a Writ ofMandamus, directing the first respondent to sponsor the petitionerbeing the senior most registrant for the next appointment afterimplementing the G.O.(Ms.)No.65, Labour and Employment (N2)Department, dated 30.3.2007.Suo Motu Writ Petition No.32836 of 2007 filed under Article226 of the Constitution of India, praying for issuance of a Writof Mandamus, for the reasons stated in the Office Reports(Letters) of the Principal District Judges of Thiruvallur andMadurai, dated 3.9.2007 and 20.9.2007 respectively, and to directthe first and second respondents to instruct all the DistrictEmployment Officers, more particularly the third and fourthrespondents to furnish the list of candidates as required by theUnit Heads of the Judiciary in the State of Tamil Nadu.For petitioners : Mr.R.Muthukumarasamy, Senior Counsel for Mr.O.A.Dinesh KumarFor respondents: Mr.Raja Kalifullah, Govt. Pleader, assisted byMr.D.Srinivasan, Addl.G.P.COMMON ORDERS.J.MUKHOPADHAYA,JIn both these Writ Petitions, as common question of law isinvolved, they were heard together and disposed of by this commonorder.2. The Principal District and Sessions Judge of Thiruvallur,with a view to take steps to fill up different ministerial posts,such as Examiner of Copies, Reader, Copyist, Senior Bailiff,Office Assistant, Masalchi, Watchman, Xerox Operator, Driver,etc., took steps and called for the names from the DistrictEmployment Office of Thiruvallur. In spite of different requests,including oral request, only some names were forwarded inpiecemeal and not for all the posts. The aforesaid matter wasreferred to by the Principal District and Sessions Judge,Thiruvallur, to this Court, vide D.No.3296/A/2007, dated31.8.2007 / 03.9.2007. Similar problem having been faced, thePrincipal District and Sessions Judge, Madurai, vide hisD.No.12393, dated 20.9.2007, referred the matter to this Court inits administrative side and pointed out the vacancy position. Itis informed that for the post of Steno-Typist, the EmploymentExchange was requested to send the list of candidates and the https://hcservices.ecourts.gov.in/hcservices/ District Employment Office, Madurai, has addressed all theEmployment Offices in Tamil Nadu, requesting them to send the listavailable and the willing candidates in the ratio of 1:1 by letterdated 10.8.2007, but in the absence of any candidate, no name hasbeen recommended. 3. As pursuant to G.O.Ms.No.65, Labour and Employment (N2)Department, dated 30.3.2007, the names can be recommended only inthe ratio of 1:1, but under the Rules, the post be filled up onthe basis of the merit and under Rule 10-A(a) of the Tamil NaduState and Subordinate Services Rules, generally no advertisementcan be published, facing difficulty, the Chief Justice of the HighCourt, suo motu referred the matter for determination of the issueunder Article 226 of the Constitution of India, registered as SuoMotu W.P.No.32836 of 2007.4. The petitioner-R.Amirthaveni has preferred the other WritPetition in W.P.No.33647 of 2007 and she claims to be the seniormost registrant in the local Employment Exchange, Dharmapuri. Itappears that the names of number of persons, were forwarded, butshe was not selected for appointment in the District Court,Dharmapuri. It is in the aforesaid background, prayer has beenmade to consider only her case pursuant to G.O.Ms.No.65, dated30.3.2007 issued from Labour Employment (N2) Department and noother person.5. According to the learned Senior Counsel appearing for theHigh Court, the State Government cannot restrict the name of oneperson against one vacancy. Otherwise, it will amount tocompelling the appointing authority to appoint the recommendedperson without assessing the merit. It was further submitted thatif the selection is made pursuant to G.O.Ms.No.65, dated 30.3.2007issued from Labour and Employment (N.2) Department, read with Rule10-A(a) of the Tamil Nadu State and Subordinate Services Rules, itwill not only violate Rule 10-A(b) of the said Rules, but alsoArticles 14 and 16 of the Constitution of India. According tohim, the selection should not be restricted among unemployedpersons, as employed persons have also a right to apply forselection against another post, if permission is granted by itsemployer and restricting the selection only amongst the unemployedpersons, will violate Articles 14 and 16 of the Constitution ofIndia. Further, according to him, an employer cannot be restrictedfrom selecting only the candidates recommended by EmploymentExchange, but can also make selection out of persons who may applypursuant to advertisement in the newspapers. According to him, inthe absence of any advertisement, if an employer is forced toselect only from those whose names have been empanelled in theEmployment Exchange, such action will be arbitrary anddiscriminatory and shall be against the constitutional provisions. https://hcservices.ecourts.gov.in/hcservices/

6. On the other hand, according to the learned counselappearing for the State, restriction of selection from thoseenrolled in the Employment Exchange, will not vitiate theselection, nor violates Articles 14 and 16 of the Constitution ofIndia and the State Government has jurisdiction to issue suchdirection under the Employment Exchanges (Compulsory Notificationsof Vacancies), Act, 1959 (hereinafter referred to as "theEmployment Exchanges Act") and may also frame independent Ruleunder proviso to Article 309 of the Constitution of India.7. Both the learned counsel appearing for the parties reliedon the provisions of the Employment Exchanges Act, 1959, Rule 10-Aof the Tamil Nadu State and Subordinate Services Rules and thedecisions of High Courts and the Supreme Court.8. We have heard the learned counsel appearing for theparties and noticed the rival contentions and also gone throughthe relevant Act, Rules and the decisions of the Supreme Court.9. In these Writ Petitions, the following questions arise fordetermination:(i) Whether it is possible to make any selection on merits,if the name of only one person is forwarded by the EmploymentExchange against one vacancy, and the same will amount tocompelling the appointing authority to adjudge the merit of onlyone person?(ii) Whether G.O.Ms.No.65, Labour and Employment (N2)Department, dated 30.3.2007, read with Rule 10-A(a) of the TamilNadu State and Subordinate Services Rules, is violative of Rule10-A(b) of the said Rules and Articles 14 and 16 of theConstitution of India?(iii) Whether calling for the names only from local DistrictEmployment Exchange excluding those enrolled in other DistrictEmployment Exchanges, is violative of Articles 14 and 16 of theConstitution of India?(iv) Whether Articles 14 and 16 of the Constitution of Indiaenvisage employment only to unemployed persons or the employedpersons are also entitled for protection under Articles 14 and 16of the Constitution of India for getting any other employment inthe State ?(v) Whether those who have not enrolled with the EmploymentExchange stands excluded from consideration of their case forappointment, if the names are only called for from the EmploymentExchange and no advertisement is issued?(vi) What is the ground in giving preference to thoseenrolled earlier over those enrolled later in the matter ofappointment if the date of enrollment has no nexus with the dateof passing the minimum requisite qualification or age ? https://hcservices.ecourts.gov.in/hcservices/

10. For proper appreciation of the case and determination ofthe issues, it is necessary to notice and discuss certainprovisions as referred to hereunder.Section 2(i) of the Employment Exchanges Act defines"unskilled office work" and quoted hereunder:" "unskilled office work" means workdone in an establishment by any of thefollowing categories of employees, namely:-(1) daftri ;(2) jemadar, orderly and peon;(3) dusting man or farash;(4) bundle or record lifter;(5) process server;(6) watchman;(7) sweeper;(8) any other employee doing any routineor unskilled work which the Central Governmentmay, by notification in the Official Gazette,declare to be unskilled office work."Under Section 3, the Employment Exchanges Act will not applyto certain vacancies including the following:" (1) ...... ... (c) in any employment the totalduration of which is less than three months; (d) in any employment to dounskilled office work;....(2) Unless the Central Governmentotherwise directs by notification in theOfficial Gazette in this behalf this Act shallnot also apply in relation to --(a) vacancies which are proposed to befilled through promotion or by absorption ofsurplus staff of any branch or department ofthe same establishment or on the result of anyexamination conducted or interview held by, oron the recommendation of, any independentagency, such as the Union or a State PublicService Commission and the like;"However, for the vacancies to which the provisions of theEmployment Exchanges Act are applicable, it is mandated to followthe procedure under Section 4 and quoted hereunder:"4. Notification of vacancies toemployment exchanges--(1) After thecommencement of this Act in any State or area https://hcservices.ecourts.gov.in/hcservices/ thereof, the employer in every establishmentin public sector in that State or area shall,before filling up any vacancy in anyemployment, in that establishment, notifythat vacancy to such employment exchanges asmay be prescribed.(2) The appropriate Government may, bynotification in the Official Gazette, requirethat from such date as may be specified inthe notification, the employer in everyestablishment in private sector or everyestablishment pertaining to any class orcategory of establishment in private sectorshall, before filling up any vacancy in anyemployment in that establishment, notify thatvacancy to such employment exchanges as maybe prescribed, and the employer shallthereupon comply with such requisition.(3) The manner in which the vacanciesreferred to in sub-section (1) or sub-section(2) shall be notified to the employmentexchanges and the particulars of employmentin which such vacancies have occurred or areabout to occur shall be such as may beprescribed.(4) Nothing in sub-section (1) and (2)shall be deemed to impose any obligation uponany employer to recruit any person throughthe employment exchange to fill any vacancymerely because that vacancy has been notifiedunder any of those sub-sections."11. From the aforesaid provisions, it will be evident thatthe Employment Exchanges Act is not applicable for the followingvacancies:- (1) daftri ;(ii) jemadar, orderly and peon;(iii) dusting man or farash;(iv) bundle or record lifter;(v) process server;(vi) watchman;(vii) sweeper;(viii) any other employee doing any routine or unskilled workwhich the Central Government may, by notification in the OfficialGazette, declare to be unskilled office work.Further, it would be evident from the aforesaid provisionsthat though for other vacancies, the names are to be called forfrom the Employment Exchange, Section 4 of the EmploymentExchanges Act, does not impose any obligation upon the employer to https://hcservices.ecourts.gov.in/hcservices/ recruit any person through the Employment Exchange to fill anyvacancy merely because that vacancy has been notified throughEmployment Exchange. The essence of such provision is that theemployer has option also to call for applications through openadvertisement published in the newspapers and on assessment ofmerit and selection, may appoint most suitable persons includingthose whose names have not been recommended by the EmploymentExchange.12. Rule 10-A(a) of the Tamil Nadu State and SubordinateServices Rules, relates to "recruitment to posts which areoutside the purview of the Tamil Nadu Public Service Commission".Under Sub-Rule (a) of Rule 10-A, while it is prescribed to makerecruitment only by calling for the names of eligible candidatesfrom the Employment Exchange, it is only in case of non-availability of candidates from the Employment Exchange, theappointing authority has been allowed to advertise the posts inprominent daily newspapers. Under Sub-Rule (b) of Rule 10-A, theselection is to be made on the basis of merit. Rule 10-A(a) and(b) are quoted hereunder: "Rule 10-A: Recruitment to posts, whichare outside the purview of the Tamil NaduPublic Service Commission:(a) Where the posts are outside thepurview of the Tamil Nadu Public ServiceCommission, recruitment shall be made only bycalling for names of eligible candidates fromthe Employment Exchange. In respect ofspecialized posts for which candidates are notavailable with the Employment Exchange, theappointing authority shall get a certificate anon-availability from the Employment Exchange,and call for applications from eligiblecandidates by advertising the posts inprominent daily newspapers giving the numberof vacancies and indicating thequalifications, etc.:Provided that this sub-rule shall notapply in the case of appointments ofdependents of Government Servants who die inharness, or the Government Servants who retirefrom service on medical invalidation beforeattaining the age of fifty years.(b) The candidates to be appointed shallbe selected on the basis of merit by theappointing authority, or by an officerdesignated by the appointing authority or by aCommittee of Officers not exceeding three dulyconstituted by the appointing authority, https://hcservices.ecourts.gov.in/hcservices/ subject to the rule of reservation of postswherever applicable after subjecting thecandidates to an oral interview and, ifnecessary, a short written test which can beevaluated in a short time."13. Section 4 of the Employment Exchanges Act, 1959 fell forconsideration before High Courts and the Supreme Court from timeto time.In the case of Union of India vs. N.Hargopal, reported in1987 (3) SCC 308 : JT 1987 (2) SC 182, having noticed theaforesaid provision--Section 4, the Supreme Court held as follows:"4. It is evident that there is noprovision in the Act which obliges an employerto make appointments through the agency of theEmployment Exchanges. Far from it. Section 4(4) of the Act, on the other hand, makes itexplicitly clear that the employer is under noobligation to recruit any person through theEmployment Exchanges to fill in a vacancymerely because that vacancy has been notifiedunder Section 4(1) or Section 4(2). In theface of Section 4(4), we consider it utterlyfutile for the learned Additional SolicitorGeneral to argue that the Act imposes anyobligation on the employers apart fromnotifying the vacancies to the EmploymentExchanges. .....6. It is, therefore, clear that theobject of the Act is not to restrict, but toenlarge the field of choice so that theemployer may choose the best and the mostefficient and to provide an opportunity to theworker to have his claim for appointmentconsidered without the worker having to knockat every door for employment. We are,therefore, firmly of the view that the Actdoes not oblige any employer to employ thosepersons only who have been sponsored by theEmployment Exchanges.8. It is clear that it is the desire ofthe Government of India that all governmentdepartments, government organisations andstatutory bodies should adhere to the rulethat not merely vacancies should be notifiedto the Employment Exchanges, but the vacanciesshould also be filled by candidates sponsoredby the Employment Exchanges. It was only whenno suitable candidates were available, that https://hcservices.ecourts.gov.in/hcservices/ other sources of recruitment were to beconsidered. While the government is at perfectliberty to issue instructions to its owndepartments and organisations provided theinstructions do not contravene anyconstitutional provision or any statute, theseinstructions cannot bind other bodies whichare created by statute and which functionunder the authority of statute. In the absenceof any statutory prescription the statutoryauthority may however adopt and follow suchinstructions if it thinks fit. Otherwise, thegovernment may not compel statutory bodies tomake appointments of persons from amongcandidates sponsored by Employment Exchangesonly. The question, of course, does not arisein the case of private employers which cannotbe so compelled by any instructions issued bythe Government.9. The further question is whether theinstructions issued by the government that inthe case of government departments the fieldof choice should, in the first instance, berestricted to candidates sponsored by theEmployment Exchanges offend Articles 14 and 16of the Constitution. Shri P.Parmeshwara Rao,learned counsel appearing for some of therespondents strenuously urged that such arestriction would offend the equality clausesof the Constitution, namely Articles 14 and16. He urged that when Parliament had goneinto the question and decided that thereshould be no compulsion in the matter ofappointment by way of restriction of the fieldof choice, it was not open to the governmentto impose such compulsion. He argued that itwould be unreasonable to restrict the field ofchoice to those sponsored by the EmploymentExchanges. In a country so vast as India, in acountry where there was so much poverty,illiteracy and ignorance, it was not rightthat employment opportunities shouldnecessarily be channelled through theEmployment Exchanges when it is not shown thatthe network of Employment Exchanges is sowide, that it reaches all the corners of thisvast country. He argued that it is futile toexpect that persons living in distant placescould get themselves registered with https://hcservices.ecourts.gov.in/hcservices/ Employment Exchanges situated far away. Thesubmission of Shri Parmeshwara Rao is indeedappealing and attractive. Nonetheless, we areafraid we cannot uphold it. The object ofrecruitment to any service or post is tosecure the most suitable person who answersthe demands of the requirements of the job. Inthe case of public employment, it is necessaryto eliminate arbitrariness and favouritism andintroduce uniformity of standards andorderliness in the matter of employment. Therehas to be an element of procedural fairness inrecruitment. If a public employer chooses toreceive applications for employment where andwhen he pleases, and chooses to makeappointments as he likes, a grave element ofarbitrariness is certainly introduced. Thismust necessarily be avoided if Articles 14 and16 have to be given any meaning. We,therefore, consider that insistence onrecruitment through Employment Exchangesadvances rather than restricts the rightsguaranteed by Articles 14 and 16 of theConstitution. The submission that EmploymentExchanges do not reach everywhere appliesequally to whatever method of advertisingvacancies is adopted. Advertisement in thedaily press, for example, is also equallyineffective as it does not reach everyonedesiring employment. In the absence of abetter method of recruitment, we think thatany restriction that employment in governmentdepartments should be through the medium ofemployment exchanges does not offend Articles14 and 16 of the Constitution. With thismodification of the judgment of the HighCourt, the appeals and special leave petitionsare disposed of. No orders are necessary inthe writ petition." Subsequently, in the case of the Excise Superintendent vs.K.B.N.Visweshwara Rao, reported in 1996 (6) SCC 216 : JT 1996 (9)SC 638, the question of equality of opportunity in the matter ofemployment fell for consideration before the Supreme Court, whichnoticed the earlier decision in the case of N.Hargopal (supra),and the Supreme Court observed as follows:"6. Having regard to the respectivecontentions, we are of the view that contentionof the respondents is more acceptable which https://hcservices.ecourts.gov.in/hcservices/ would be consistent with the principles of fairplay, justice and equal opportunity. It iscommon knowledge that many a candidates areunable to have the names sponsored, thoughtheir names are either registered or arewaiting to be registered in the employmentexchange, with the result that the choice ofselection is restricted to only such of thecandidates whose names come to be sponsored bythe employment exchange. Under thesecircumstances, many a deserving candidate aredeprived of the right to be considered forappointment to a post under the State. Betterview appears to be that it should be mandatoryfor the requisitioning authority/establishmentto intimate the employment exchange, andemployment exchange should sponsor the names ofthe candidates to the requisitioningDepartments for selection strictly according toseniority and reservation, as per requisition.In addition, the appropriate Department orundertaking or establishment, should call forthe names by publication in the newspapershaving wider circulation and also display ontheir office notice boards or announce onradio, television and employment news-bulletins; and then consider the cases of allthe candidates who have applied. If thisprocedure is adopted, fair play would besubserved. The equality of opportunity in thematter of employment would be available to alleligible candidates." (emphasis supplied) In the case of Arun Tewari vs. Zila Mansavi Shikshak Sangh,reported in 1998 (2) SCC 332, it came to the notice of the SupremeCourt that the names were called for from the Employment Exchange,but no advertisement was issued. Referring the decision in thecases of Hargopal (supra) and K.B.N.Visweshwara Rao (supra), theSupreme Court observed as follows:"21. There are different methods ofinviting applications. The method adopted inthe exigencies of the situation in the presentcase cannot be labelled as unfair,particularly when, at the relevant time, thetwo earlier decisions of this Court were invogue."The recruitment through Employment Exchange without advertisementwas upheld by the Supreme Court in that case. https://hcservices.ecourts.gov.in/hcservices/ Recently, similar issue relating to employment in consonancewith Articles 14 and 16 of the Constitution of India, fell forconsideration before the Supreme Court in the case of UPSC vs.Girish Jayanti Lal Vaghela, reported in 2006 (2) SCC 482, wherein,the Supreme Court held as follows:"12. Article 16 which finds place inPart III of the Constitution relating tofundamental rights provides that there shallbe equality of opportunity for all citizens inmatters relating to employment or appointmentto any office under the State. The main objectof Article 16 is to create a constitutionalright to equality of opportunity andemployment in public offices. The words"employment or appointment" cover not merelythe initial appointment but also otherattributes of service like promotion and ageof superannuation, etc. The appointment to anypost under the State can only be made after aproper advertisement has been made invitingapplications from eligible candidates andholding of selection by a body of experts or aspecially constituted committee whose membersare fair and impartial through a writtenexamination or interview or some otherrational criteria for judging the inter semerit of candidates who have applied inresponse to the advertisement made. A regularappointment to a post under the State or Unioncannot be made without issuing advertisementin the prescribed manner which may in somecases include inviting applications from theemployment exchange where eligible candidatesget their names registered. Any regularappointment made on a post under the State orUnion without issuing advertisement invitingapplications from eligible candidates andwithout holding a proper selection where alleligible candidates get a fair chance tocompete would violate the guarantee enshrinedunder Article 16 of the Constitution." (emphasissupplied) In the case of Secy., State of Karnataka vs. Umadevi (3) ,reported in 2006 (4) SCC 1, a Constitution Bench of the SupremeCourt, while considering the relevant provisions relating toemployment, held as follows: https://hcservices.ecourts.gov.in/hcservices/ "6. The power of a State as an employeris more limited than that of a privateemployer inasmuch as it is subjected toconstitutional limitations and cannot beexercised arbitrarily (see Basu's ShorterConstitution of India). Article 309 of theConstitution gives the Government the power toframe rules for the purpose of laying down theconditions of service and recruitment ofpersons to be appointed to public services andposts in connection with the affairs of theUnion or any of the States. That articlecontemplates the drawing up of a procedure andrules to regulate the recruitment and regulatethe service conditions of appointees appointedto public posts. It is well acknowledged thatbecause of this, the entire process ofrecruitment for services is controlled bydetailed procedures which specify thenecessary qualifications, the mode ofappointment, etc. If rules have been madeunder Article 309 of the Constitution, thenthe Government can make appointments only inaccordance with the rules. The State is meantto be a model employer. The EmploymentExchanges (Compulsory Notification ofVacancies) Act, 1959 was enacted to ensureequal opportunity for employment seekers.Though this Act may not oblige an employer toemploy only those persons who have beensponsored by employment exchanges, it placesan obligation on the employer to notify thevacancies that may arise in the variousdepartments and for filling up of thosevacancies, based on a procedure. Normally,statutory rules are framed under the authorityof law governing employment. It is recognisedthat no government order, notification orcircular can be substituted for the statutoryrules framed under the authority of law. Thisis because, following any other course couldbe disastrous inasmuch as it will deprive thesecurity of tenure and the right of equalityconferred on civil servants under theconstitutional scheme. It may even amount tonegating the accepted service jurisprudence.Therefore, when statutory rules are framedunder Article 309 of the Constitution whichare exhaustive, the only fair means to adopt https://hcservices.ecourts.gov.in/hcservices/ is to make appointments based on the rules soframed."Subsequently, in the case of Principal, Mehar ChandPolytechnic vs. Anu Lamba, reported in 2006 (7) SCC 161, theSupreme Court held as follows:"17. Parliament for giving effect to theprovisions of Article 16 of the Constitutionenacted the Employment Exchanges (CompulsoryNotification of Vacancies) Act, 1959. Thestatutes and the statutory rules framed by theUnion of India and other States alsoinvariably require issuance of public noticesso as to enable all eligible candidates tofile applications thereof. The Constitutionand/or statutes or statutory rules do not makeany distinction between post and posts. Therecruitment process for all posts is thesame." In Arun Kumar Nayak vs. Union of India, reported in 2006 (8)SCC 111, it came to the notice of the Supreme Court that among thecandidates who submitted application forms on being sponsored bythe Employment Exchange, except one, others found disqualified onthe ground that they did not produce all the necessary documentsand only one candidate who produced all the relevant documents,was found eligible, and was considered and selected and theSupreme Court held that there was no element of selection and theprocess of selection was a mockery. The Supreme Court in thatcase further held that the decision in Arun Tewari (supra) isbased on the facts of that case and no law was laid down thereinand in K.B.N.Visweshara Rao (supra), the three-Judge Bench of theSupreme Court has laid down the law and that is still holding thefield.Apart from the aforesaid decisions, it is better to refersome of the decisions of the High Courts which relate to Section 4of the Employment Exchanges Act, 1959.In State of Tamil Nadu, etc. and 93 others vs. Tamil NaduRecognised Private Schools Managers' Assn., etc., reported in 1995Writ L.R. 499, it fell for consideration before this Court,whether the State Government can issue a direction to the privateeducational institutions, whether of minority institutions orotherwise, receiving aid from the State to make recruitment to thepost of Teachers only from among the candidates sponsored by theEmployment Exchange and this Court held in favour of the State. Though the present case does not relate to appointment in theprivate institutions, but a reference was made by the counsel forthe State, as the direction of the State Government to make https://hcservices.ecourts.gov.in/hcservices/ appointment only from among the candidates sponsored by theEmployment Exchange, was upheld in that case. Similar matter fell for consideration before a Full Bench ofthe Calcutta High Court in the case of Rabindra Nath Mahata vs.State of West Bengal, reported in 2005 (5) C.T.C. 161 (FB) (Cal).The Full Bench of the Calcutta High Court held that persons whosenames were not sponsored by the Employment Exchange, have a rightto participate as candidates in the selection process initiated bya school governed by the Management of Recognized Non-GovernmentInstitutions (Aided and Unaided) Rules, 1969 (framed under theWest Bengal Board of Secondary Education Act, 1963) for recruitingand selecting persons for appointment as members of the non-teaching staff.Before a Full Bench of this Court in the case ofSivakumari,R. vs. Ramanathapuram Mavatta Payirchipetra EdainilaiAsiriyargal Sangam, reported in 2007 (5) CTC 561 (FB), the rightof candidates who have got appointment in private aided school tobe sponsored by the Employment Exchange to the Government post,fell for consideration. In the said case, the Full Bench, whileholding that the Employment Exchange cannot act as the only sourceof recruitment, further held that the recruitment to Governmentpost was to be made by adopting procedures such as, (i) bynotifying through Employment Exchanges, (ii) issuing publicationsin newspapers having wide circulation, inviting applications,(iii) displaying Notification in notice boards of respectiveoffices or making announcements in media and the Full Bench heldthat right to employment to a public services is valuable rightand the Constitution guarantees equality of opportunity in mattersrelating to employment or appointment to any office under theState. No discrimination can be made between persons already inemployment and persons who are not in employment except by the lawenacted by Parliament or State under Article 16 (3) or 16(4) ofthe Constitution. Thereby, the Full Bench held that personsalready in employment can also apply.14. So far as calling for the names only from local DistrictEmployment Exchange is concerned, similar issue fell forconsideration before a Constitution Bench of the Supreme Court inthe case of P.Rajendran vs. State of Madras, reported in AIR 1968SC 1012. In the said case, the Supreme Court held as follows:"11. .... It is true that Article 14does not forbid classification, but theclassification has to be justified on thebasis of the nexus between the classificationand the object to be achieved, even assumingthat territorial classification may be areasonable classification. ....13. .... We may add that we do not meanto say that territorial classification is https://hcservices.ecourts.gov.in/hcservices/ always bad under all circumstances. But thereis no doubt that districtwise classificationwhich is being justified on a territorialbasis in these cases is violative of Article14, for no justification worth the name insupport of the classification has been madeout. ... " 15. From the aforesaid finding, it would be evident that inappropriate cases, if proper justification is made and nexus withthe object to be achieved is brought on record, calling for thenames from the local Employment Exchange to fill up the posts,will not render it illegal, till it is shown violative of Articles14 and 16 of the Constitution of India.16. In one of the present cases, namely in W.P.No.33647 of2007, prayer was made by the petitioner to make selection pursuantto G.O.Ms.No.65, dated 30.3.3007, issued from Labour andEmployment (N.2) Department of the State, which reads as follows:"AbstractEmployment Exchanges – Filling up of Vacancies– Fixation of ratio for sponsoring candidatesfrom the Employment Exchanges – Orders issued.----------------------------------------------Labour and Employment (N.2) DepartmentG.O.(Ms).No.65 Dated: 30.03.2007 Read:1. G.O.Ms.No.201, Labour and EmploymentDepartment, dated 28.09.1993.2. G.O.Ms.No.180, Labour and EmploymentDepartment, dated 13.09.1995.3. G.O.Ms.No.152, Labour and EmploymentDepartment, dated 17.11.1998.4. G.O.(4D).No.1, Labour and EmploymentDepartment, dated 13.01.1999.5. G.O.(4D).No.2, Labour and EmploymentDepartment, dated 16.02.1999.6. G.O.(2D).No.21, Labour and EmploymentDepartment, dated 20.09.2001.Read Also:-7. G.O.(Ms).No.6, Labour and EmploymentDepartment, dated 01.02.2002.8. From the Special Commissioner andCommissioner of Employment and Training,Letter No.Pa.Pa.1/58384/2006, dated18.01.2007.----- https://hcservices.ecourts.gov.in/hcservices/ Order:In order to avoid delays and to bringobjectivity and transparency, the Governmenthave reviewed the existing provisions forfixation of ratio for sponsoring of candidatesto employers, from the Employment Exchange.2. In supersession of the GovernmentOrders read above and all other orders andinstructions issued on the subject, theGovernment, after careful consideration issueorders as follows:-(i) for filling up of any vacancy in anyemployment in Government Departments, LocalBodies (Urban and Rural), Co-operativeinstitutions, Public Sector Undertakings, allGovernment aided Educational institutions andGovernment aided Engineering Colleges andPolytechnics etc., Employment Exchanges shallsponsor candidates to the employers in theratio of 1:1 (one : one) as per seniority ofregistrants, who are in the live register.(ii) for all other private organizationsand institutions etc., for filling up ofvacancies through Employment Exchanges, whichneeds selection as per merit, the EmploymentExchanges shall sponsor candidates to theemployers in the ratio of 1:15 (one : fifteen)from the registrants who are in the liveregister. 3. The Special Commissioner andCommissioner of Employment and Training isrequested to issue necessary instructions, todisplay the contents of this order in theNotice Boards of all Employment Exchanges forinformation of the registrants and the public. (BY ORDER OF THE GOVERNOR)L.K.TRIPATHYCHIEF SECRETARY TO GOVERNMENT"17. On the other hand, in the analogous case, in Suo MotuW.P.No.32836 of 2007, it was argued by the learned Senior Counselappearing for the High Court that the appointment of only oneperson recommended against one vacancy, will amount to compellingthe appointing authority to appoint the person concerned and itwill frustrate the selection. The aforesaid G.O.Ms.No.65, dated30.3.2007 was attacked on the ground of violation of Articles 14and 16 of the Constitution of India. While the decisions as https://hcservices.ecourts.gov.in/hcservices/ referred to above were relied upon, attention was also drawn onthe decision of the Supreme Court in the case of Arun Kumar Nayak(supra). In the said case, as noticed above, as only one candidatewas found to be eligible, the Supreme Court held that there was noelement of selection and the process of selection was a mockery.18. It may be in the aforesaid background that after thehearing of the present cases were concluded, the cases were againbrought in the list at the instance of the counsel for the State,who brought on record G.O.Ms.No.18, dated 25.2.2008, issued fromLabour and Employment (N.2) Department, published during thependency of the cases and by the said G.O. dated 25.2.2008, theearlier G.O.Ms.No.65, dated 30.3.2007 issued from Labour andEmployment Department and the other instructions on that issue,were superseded. G.O.Ms.No.18, dated 25.2.2008 issued from Labourand Employment (N.2) Department, is extracted hereunder:"ABSTRACTEmployment Exchanges – Filling up of Vacancies– Fixation of ratio 1:5 for sponsoringcandidates from the Employment Exchanges –Orders issued.----------------------------------------------Labour and Employment (N2) Department G.O.(Ms).No.18 Dated: 25.2.2008 Read:1. G.O.Ms.No.201, Labour and EmploymentDepartment, dated 28.09.1993.2. G.O.Ms.No.180, Labour and EmploymentDepartment, dated 13.09.1995.3. G.O.Ms.No.152, Labour and EmploymentDepartment, dated 17.11.1998.4. G.O.(4D).No.1, Labour and EmploymentDepartment, dated 13.01.1999.5. G.O.(4D).No.2, Labour and EmploymentDepartment, dated 16.02.1999.6. G.O.(2D).No.21, Labour and EmploymentDepartment, dated 20.09.2001.7. G.O.(Ms).No.6, Labour and EmploymentDepartment, dated 01.02.2002.8. G.O.Ms.No.65, Labour and EmploymentDepartment, dated 30.3.2007.9. Government Letter No.2167/N2/2007-2, L& E dated 25.04.2007.10. G.O.Ms.No.86, Labour and EmploymentDepartment, dated 12.5.2007. ------ https://hcservices.ecourts.gov.in/hcservices/ Order:In order to have uniformity in thefixation of ratio for sponsoring thecandidates and to ensure expeditious fillingup of vacancies, the Government have reviewedthe existing Government Orders & guidelinesregarding fixation of ratio for sponsoring thecandidates from the Employment Exchanges tofill up the vacancies for various categoriesof posts.2. In supersession of the Governmentorders & guidelines read above and all otherinstructions issued on the subject, theGovernment, after careful consideration issueorder as follows:-For filling up of all categories of postscoming under the purview of GovernmentDepartments, Local Bodies (Urban and Rural),Cooperative institutions, Public SectorUndertakings, all Government aided Educationinstitutions and Government aided EngineeringColleges and Polytechnics, all other privateorganizations and institutions etc. EmploymentExchanges shall sponsor candidates in theratio of 1:5.3. The Special Commissioner andCommissioner of Employment and Training isrequested to issue necessary instructions, todisplay the contents of this order in theNotice Boards of all Employment Exchanges forinformation of the registrants and the public. (BY ORDER OF THE GOVERNOR) L.K.TRIPATHYCHIEF SECRETARY TO GOVERNMENT" 19. From the aforesaid recent G.O.Ms.No.18, Labour andEmployment (N.2) Department, dated 25.2.2008, the following factsemerge:(i) The aforesaid guideline is issued to all GovernmentDepartments, Local Bodies (Urban and Rural), Co-operativeInstitutions, Public Sector Undertakings, all Government aidedEducational Institutions and Government aided Engineering Collegesand Polytechnics, all other private organisations andinstitutions, etc., but the said order is not applicable either tothe High Court or any of the District Courts or Courts subordinateto the High Court, which are not Government Departments or LocalBodies or Undertakings of the State. https://hcservices.ecourts.gov.in/hcservices/ (ii) For the Government Departments and others, as referredto therein, the Employment Exchanges are required to sponsorcandidates in the ratio of 1:5, i.e. five names of persons againstone vacancy. 20. From the discussions as made above, the Government Ordersissued from time to time, the Employment Exchanges Act and thedecisions as referred to above, we hold as follows: (i) The Employment Exchanges Act is not applicable for thefollowing vacancies:(a) daftari;(b) jemadar, orderly and peon; (c) dusting man or farash;(d) bundle or record lifter;(e) process server;(f) watchman;(g) sweeper;(h) any other employee doing any routine or unskilled workwhich the Central Government may, by notification in the OfficialGazette, declare to be unskilled office work.(ii) An employer is not bound to appoint only personssponsored by the Employment Exchange. The essence of Section 4 ofthe Employment Exchanges Act is that the employer has option tocall for application through open advertisement published in thenewspapers and on merit and selection, may appoint best of thepersons including those whose names have not been recommended bythe Employment Exchange. (iii) The employer is only obliged to notify the vacancies.(iv) It should be mandatory for the requisitioningauthority/establishment to intimate the Employment Exchange andthe Employment Exchange should sponsor the names of the candidatesto the requisitioning Departments for selection strictly inaccordance with the seniority and reservation, as per therequisition. In addition, appropriate Department or undertaking orestablishment should call for the names by publication in thenewspapers having wider circulation and also display on theiroffice notice boards or announce on radio, television andemployment news-bulletins and then consider the cases of allcandidates who have applied. A regular employment under the Statecannot be made without advertisement, which may include in somecases inviting applications from the Employment Exchange. (v) Restricting selection only to the candidates sponsored bythe Employment Exchange is not proper and such procedure will notsubserve fair play.(vi) In case the selection is made to a post/vacancy of aDistrict cadre, calling for the names from the concerned localEmployment Exchange, it will not ipso facto violate Articles 14 https://hcservices.ecourts.gov.in/hcservices/ and 16 of the Constitution of India, till it is proved and inappropriate cases, the employer may justify such employment byshowing its nexus with the object to achieve.But in case any post/vacancy is of State level/cadre, thenames cannot be called for from one particular District EmploymentExchange, which otherwise will violate Articles 14 and 16 of theConstitution of India. In such a case, apart from calling for thenames from the Employment Exchanges, the names should be calledfor by publication in the newspapers having wider circulation andthrough other sources.(vii) G.O.Ms.No.18, Labour and Employment (N.2) Department,dated 25.2.2008, issued by the State Government is applicable toall Government Departments, Local Bodies (Urban and Rural), Co-operative Institutions, Public Sector Undertakings, all Governmentaided Educational Institutions and Government aided EngineeringColleges and Polytechnics, all other private organisations andinstitutions etc., but the said order is not applicable to theHigh Court or any of the District Courts or Courts subordinate tothe High Court, which are not Government Departments or LocalBodies or Undertakings of the State. (viii) G.O.Ms.No.18, Labour and Employment (N.2) Department,dated 25.2.2008 to call for the names to fill up the vacanciessponsored by the Employment Exchange in the ratio of 1:5, is notviolative of Articles 14 and 16 of the Constitution of India. (ix) Rule 10-A(a) of the Tamil Nadu State and SubordinateServices Rules, if limited for selection from among the personsrecommended by the Employment Exchange, may not violate ofArticles 14 and 16 of the Constitution of India, in view ofG.O.Ms.No.18, Labour and Employment (N.2) Department, dated25.2.2008. But in case of large number of employment on regularbasis within the State/cadre, it will violate the Supreme Court'sobservation made in the case of K.B.N.Visweshwara Rao (supra).So far as G.O.Ms.No.65, Labour and Employment (N.2)Department, dated 30.3.2007 is concerned, as consideration of onename against one vacancy will amount to "no selection" in the eyeof law, the said G.O. being violative of Articles 14 and 16 of theConstitution of India, was rightly recalled by the State. Noperson can claim appointment on the basis of the earlierG.O.Ms.No.65, even if the names were called for prior to25.2.2008, but selection has not yet been made. But in the light of the decision of the Supreme Court in thecase of K.B.N.Visweshwara Rao (supra), the appropriateDepartment/Undertaking/ Establishment should call for the namesfor publication in newspapers having wider circulation, if morenumber of vacancies are to be filled up at a time. https://hcservices.ecourts.gov.in/hcservices/ If the number of vacancies is so less that it is not possibleto go for a wide selection process, the names can be called foronly from the Employment Exchange at the ratio laid down by theState, not less than 1:5. 21. In view of the fact that G.O.Ms.No.65, Labour andEmployment (N.2) Department, dated 30.3.2007 stands superseded byG.O.Ms.No.18, Labour and Employment (N.2) Department, dated25.2.2008 and in view of our finding that G.O.Ms.No.18, dated25.2.2008, is not applicable for the posts/vacancies in the HighCourt or the District Courts or any other Court subordinate to theHigh Court, no relief can be granted to the petitioner inW.P.No.33647 of 2007 for sponsoring her name for appointment toany post in the Court.22. So far as Suo Motu W.P.No.32836 of 2007 is concerned, inview of our findings, the concerned Principal District andSessions Judges, the Registrar General of the High Court, etc.,whoever is the appointing authority for ministerial employees ofthe Courts, of which a reference is given in the Letter of thePrincipal District and Sessions Judge, Thiruvallur inD.No.3296/A/2007, dated 31.8.2007 / 3.9.2007 and the Letter of thePrincipal District Judge, Madurai in D.No.12393, dated 20.9.2007,in question, are allowed to proceed in accordance with law andguidelines as has been or may be issued by the High Court. Theymay call for the names from the Employment Exchanges at any ratiothey think it proper, but not less than 1:5 ratio and in case ofregular appointment or more number of vacancies, it should alsoissue advertisement in the newspapers. As and when such names arecalled for from one or other District Employment Exchange, theconcerned Officer of the Employment Exchange will forward the listof eligible candidates, if available in their list, immediately.In case of absence of the names of the eligible candidates, theywill communicate it to the concerned authority of the Court,immediately, failing which, the matter may be treated to beviolation of the direction of the Court, which may be brought tothe notice of the Court.23. W.P.No.33647 of 2007 is dismissed and Suo MotuW.P.No.32836 of 2007 stands disposed of with the aforesaidobservations and directions. But there shall be no order as tocosts. Cs https://hcservices.ecourts.gov.in/hcservices/ After delivery of Judgment:-Let a copy of this judgment be forwarded to the RegistrarGeneral, High Court, Chennai, who in its turn will forward a copyof the same to the Principal District Judge/District Judge, ChiefJudicial Magistrates and other appointing authorities in theJudicial Side of the State.GLNSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1. The Registrar General, High Court, Chennai-104. 2. The Principal District and Sessions Judge, Thiruvallur.3. The Principal District Judge, Madurai.4. The District Employment Exchange Officer, District Employment Exchange Office, Railway Station Road, Dharmapuri District.5. The District Judge, District Court, Dharmapuri, Dharmapuri District. 6. The Secretary to Government of Tamilnadu, Home Department (Courts), Fort St.George, Chennai-9.7. The Special Commissioner and Commissioner of Employment & Training, Guindy, Chennai-32. https://hcservices.ecourts.gov.in/hcservices/

8. The District Employment Officer, District Employment Office, Thiruvallur.9. The District Employment Officer, District Employment Office, Madurai. •1 cc to Mr. A. Jenasenan, Advocate SR no. 25505•1 cc to the Government Pleader SR No. 25733Order inW.P.No.33647 of 2007& Suo Motu W.P.No.32836 of 2007GB(CO)SR/7.5.2008