Ut t arakhand Public Service Com m ission v. Km Seem a Lobiyal and Ot her s

Judgment

( p e r H o n ’ b l e Ju st i ce Sr i M a n o j K u m a r Ti w a r i ) This int ra- Court Appeal Ut t arakhand Public Service Com m ission, challenging t he j udgm ent dat ed 01.05.2017, passed by learned Single Judge in Writ Pet it ion ( S/ S) No. 2641 of 2015. Operat ive port ion of t he im pugned j udgm ent reproduced below: - t he w rit pet it ion “ According, let t er dat ed 03.11.2015 is quashed and set aside. The Public Service Com m ission is direct ed t o r ecom m end t he nam e of pet it ioner t o t he appoint ing aut horit y. Ther eaft er, t he concerned r espondent is direct ed t o consider t he case of pet it ioner for appoint m ent , if she is found suit able.” is allow ed. I m pugned

2. Learned counsel for t he appellant cont ends t hat in t he Advert isem ent dat ed 06.01.2015, pursuant t o which writ pet it ioner ( respondent no. 1 herein) applied, t here was a st ipulat ion t hat every candidat e has t o be regist ered wit h an Em ploym ent Exchange; t he writ pet it ioner/ respondent no. 1 was not regist ered wit h any Em ploym ent Exchange wit hin t he St at e of Ut t arakhand on t he dat e of her m aking applicat ion pursuant t o such Advert isem ent , t herefore, she was not considered for appoint m ent . He, t hus, subm it s t hat j udgm ent rendered by learned Writ Court , whereby 1 Ut t arakhand Public Service Com m ission was direct ed t o recom m end t he nam e of writ pet it ioner/ respondent no. 1 for appoint m ent , is unsust ainable. Learned counsel for t he appellant has drawn at t ent ion of t his Court t o condit ion m ent ioned in Clause 3 of t he Advert isem ent issued on 06.01.2015, which reads as under: - “ 03-mRrjk[k.M fo”ks’k v/khuLFk f”k{kk ¼izoDrk laoxZ½ lsok] lewg ^x^ ds inksa ij HkrhZ gsrq vkWuykbZu vkosnu Hkjus dh vafre frfFk rd mRrjk[k.M jkT; ds lsok;kstu dk;kZy; esa iathd`r gksuk vfuok;Z gSA ftyk lSfud dY;k.k ,oa iquZokl dk;kZy; esa iathd`r iwoZ lSfud rFkk jkT;k/khu lsokvksa esa lsok;ksftr vH;fFkZ;ksa dks iathdj.k dh vko”;drk ugha gSA ” .

3. Based on t he aforesaid Clause, learned counsel for t he appellant subm it s t hat candidat es were inform ed t hat t hey should be regist ered wit h any Em ploym ent Exchange, wit hin t he St at e Ut t arakhand, t ill t he last dat e of subm ission of applicat ion. However, he concedes t hat , as per t he said Clause, ex- servicem en and persons already serving in a St at e Depart m ent , are exem pt ed from t he requirem ent of such regist rat ion.

Per cont ra, Mr. K.C. Tiwari, learned counsel appearing for writ pet it ioner/ respondent no. 1 subm it s t hat writ pet it ioner/ respondent no. 1 possessed all necessary qualificat ions for appoint m ent , as m ent ioned in t he Advert isem ent , at t he t im e of m aking applicat ion and she had applied for appoint m ent as Lect urer ( Sanskrit ) , against t he post reserved for Scheduled Cast e cat egory and alt hough writ pet it ioner/ respondent no. 1 was perm it t ed t o appear in screening t est held by Ut t arakhand Public Service Com m ission, which she qualified also, yet she was not called for int erview, only on t he ground t hat her nam e was not regist ered wit h any Em ploym ent Exchange. He furt her subm it s t hat 2 writ pet it ioner/ respondent no. 1 was regist ered wit h Dist rict Em ploym ent Office, Bageshwar on 20.11.2008, and her regist rat ion was valid up t o Decem ber, 2014, however, due t o illness, she could not renew her regist rat ion wit hin t hree m ont hs from t he dat e of expiry of earlier regist rat ion, and when she approached Dist rict Em ploym ent Office for renewal of regist rat ion, she was regist ered afresh. He refers t o paragraph no. 9 of t he Writ Pet it ion in support of his cont ent ion t hat writ pet it ioner/ respondent no. 1 was re- regist ered wit h Em ploym ent Exchange, Bageshwar on 30.06.2015, which was valid t ill June, 2018.

5. Heard learned counsel for t he part ies, and perused t he records.

6. Em ploym ent Exchange are creat ion of t he Em ploym ent Exchanges ( Com pulsory Not ificat ion of Vacancies) Act , 1959 and, as per provision cont ained in Sect ion 4 ( 1) of t he aforesaid Act , every vacancy in a public sect or est ablishm ent is required t o be not ified t o an Em ploym ent Exchange. I t is not t he case of t he appellant t hat t he vacancies in quest ion were not ified t o t he Em ploym ent Exchange, t herefore, asking t he candidat es t o t hem selves regist ered wit h Em ploym ent Exchange, would be an exercise in fut ilit y. The purpose of regist rat ion wit h Em ploym ent Exchange t o ensure t hat whenever a public sect or est ablishm ent proposes t o fill- up any vacancy, t hen it can request t he Em ploym ent Exchange t o send t he nam es of regist ered candidat es, and select ion will be m ade from only am ongst such candidat es, who are sponsored by t he Em ploym ent Exchange. Vacancies on 3 post s which are t o be filled by select ion t hrough Public Service Com m ission are never not ified t o t he Em ploym ent Exchange, t herefore, insist ence upon regist rat ion wit h Em ploym ent Exchange by t he St at e Governm ent is wit hout any j ust ificat ion. I n a select ion held by an I ndependent Agency, wide publicit y is given t o t he available vacancies by issuing advert isem ent in newspapers and also by not ifying t hem in t he websit e which achieves t he purpose for which t he Act of 1959 was enact ed. The obj ect of t he Em ploym ent Exchanges ( Com pulsory Not ificat ion of Vacancies) Act , 1959 is t o prevent backdoor appoint m ent s m ade due t o nepot ism or favourit ism and t o ensure t hat all eligible candidat es get equal opport unit y t he m at t er of public em ploym ent . This purpose is achieved when select ion is held by an I ndependent Agency, which holds select ion aft er giving wide publicit y t o t he available vacancies t hrough advert isem ent and invit ing applicat ions from all eligible candidat es. St at e and Cent ral governm ent s m ake appoint m ent s t o public post s t he recom m endat ion of Specialized Select ing Bodies, which funct ion independent ly, free from out side int erference.

7. I n fact , Sect ion 3 of t he Em ploym ent Exchanges ( Com pulsory Not ificat ion of Vacancies) Act , 1959 provides t hat t he said Act shall not apply in relat ion t o cert ain vacancies, and Sub- Sect ion ( 1) t hereof, enum erat es t he vacancies which are out side t he purview of t he said Act . Sub- Sect ion ( 2) ( a) of Sect ion 3 of t he aforesaid Act m akes it clear t hat provisions of t he Act shall not apply in relat ion t o vacancies, which are proposed t o be filled- up t hrough 4 select ion by an I ndependent Agency, such as Union or St at e Public Service Com m ission. Thus, it is apparent t hat provisions t he Em ploym ent Exchanges ( Com pulsory Not ificat ion of Vacancies) Act , 1959 cannot be pressed int o service for denying appoint m ent t o a candidat e, aft er his select ion by St at e Public Service Com m ission.

8. Sect ion 3 of t he aforesaid Act is reproduced below for ready reference: -

3. A ct n o t t o a p p l y i n r e l a t i o n t o cer t a i n v a ca n ci e s.— ( 1) This Act shall not apply in relat ion t o vacancies— ( a) in any em ploym ent in agricult ure ( including hort icult ure) in any est ablishm ent in privat e sect or ot her t han em ploym ent as agricult ural or farm m achinery operat ives; ( b) in any em ploym ent in dom est ic service; ( c) in any em ploym ent t he t ot al durat ion of which is less t han t hree m ont hs; ( d) in any em ploym ent t o do unskilled office work; ( e) in any em ploym ent connect ed wit h t he st aff of Parliam ent . ( 2) Unless t he Cent ral Governm ent ot herwise direct s by not ificat ion in t he Official Gazet t e in t his behalf, t his Act shall not also apply in relat ion t o— ( a) vacancies which are proposed t o be filled t hrough prom ot ion or by absorpt ion of surplus st aff of any br anch or depart m ent of t he sam e est ablishm ent or on t he result of any exam inat ion conduct ed or int erview held by, or on t he recom m endat ion of, any independent agency, such as t he Union or a St at e Public Service Com m ission and t he like; ( b) vacancies in an em ploym ent which carries a rem unerat ion of less t han sixt y rupees in a m ont h.“

9. I t is wort hwhile t o m ent ion here t hat t here is not hing on record t o show t hat a not ificat ion, as cont em plat ed in Sub- Sect ion ( 2) of Sect ion 3 of t he aforesaid Act , was issued by t he Cent ral Governm ent . Learned counsel for t he appellant also concedes t hat such not ificat ion was not issued by t he Cent ral Governm ent for bringing t he select ion, held by Ut t arakhand Public Service Com m ission, wit hin t he fold of Em ploym ent Exchanges ( Com pulsory Not ificat ion of 5 Vacancies) Act , 1959.

10. Sect ion 4 ( 1) of t he aforesaid Act provides t hat t he em ployer in every public sect or est ablishm ent in t hat St at e or area shall not ify vacancy t o such Em ploym ent Exchanges, as m ay be prescribed. The said provision was m eant t o ensure equalit y of opport unit y in t he m at t er of em ploym ent under t he St at e. At t he t im e of enact m ent of t he aforesaid Act , t here was no full proof m echanism for providing equal opport unit y t o persons desirous of seeking appoint m ent t o public post s, and Em ploym ent Exchange was conceived as a bridge bet ween em ployer and t he persons looking for em ploym ent opport unit y. However, t hese days, when select ion for appoint m ent t o a public post is held by I ndependent Agency, e.g. St at e Public Service Com m ission, insist ence upon regist rat ion wit h Em ploym ent Exchange, appears t o be unwarrant ed. I n case of select ion t hrough Union Public Service Com m ission, or St at e Public Service Com m ission, t he vacancies are not ified in newspapers and anyone, who is eligible as per laid down norm s, has a right t o apply. Thus, equalit y of opport unit y is inherent in a select ion held by Union or St at e Public Service Com m ission, which are independent aut horit y creat ed under Art icle 315 of t he Const it ut ion of I ndia.

11. I t is nobody’s case t hat t he vacancies in quest ion were not ified t o t he Em ploym ent Exchange, in t erm s of provision cont ained in Sect ion 4 ( 1) of t he aforesaid Act , t herefore, rej ect ion of candidat ure of writ pet it ioner/ respondent no. 1, only on t he ground t hat she was not sponsored by an Em ploym ent Exchange, is 6 unj ust and unsust ainable.

12. Hon’ble Suprem e Court in t he case of “ Un i o n o f I n d i a a n d Ot h e r s v s. Pr i t i l a t a N a n d a ” , ( 2 0 1 0 ) 1 1 SCC 6 7 4 , held as under: - “ 16. I n our opinion, t here is no m erit in t he argum ent s of t he learned Addit ional Solicit or Gener al. I n t he first place, w e consider it necessary t o observ e t hat t he condit ion em bodied in t he advert isem ent t hat t he candidat e should get his/ her nam e sponsored by any special em ploym ent exchange or any ordinar y em ploy m ent ex change cannot be equat ed wit h a m andat ory provision incorporat ed in a st at ut e, t he t he person concerned wit h penal violat ion of which m ay visit consequence. The requirem ent of not ifying

17. t he em ploym ent exchange is em bodied in t he Em ploy m ent Exchanges ( Com pulsory Not ificat ion of Vacancies) Act , 1959 ( for short “ t he 1959 Act ” ) , but t here is not hing in t he Act which obligat es t he em ploy er t o appoint only t hose who ar e sponsor ed by t he em ploym ent exchange. Sect ion 4 of t he 1959 Act , which provides for not ificat ion of vacancies t o em ploym ent exchanges r eads as under: t he vacancies t o “ 4. Not ificat ion of vacancies t o em ploym ent exchanges.—( 1) Aft er t he com m encem ent of t his Act in any St at e or area t her eof, t he em ployer in every est ablishm ent in public sect or in t hat St at e or area shall, befor e filling up any vacancy in any em ploym ent in t hat est ablishm ent , not ify t o such em ploym ent exchanges as m ay be pr escribed. t hat v acancy ( 2) The appr opriat e Governm ent m ay, by not ificat ion in t he Official Gazet t e, r equire t hat from such dat e as m ay be specified in t he not ificat ion, t he em ployer in every est ablishm ent in privat e sect or or ev er y est ablishm ent pert aining t o any class or cat egory of est ablishm ent s in privat e sect or shall, befor e filling up any vacancy in any em ploym ent in t hat est ablishm ent , not ify t hat vacancy t o such em ploy m ent exchanges as m ay be prescribed, and t he em ploy er shall t her eupon com ply wit h such requisit ion. ( 3) The m anner in w hich t he vacancies r efer red t o in sub- sect ion ( 1) or sub- sect ion ( 2) shall be not ified t o t he em ploym ent exchanges and t he part iculars of em ploym ent s in which such vacancies have occurr ed or ar e about t o occur shall be such as m ay be pr escribed. ( 4) Not hing in sub- sect ions ( 1) and ( 2) shall be deem ed t o im pose any obligat ion upon any em ployer t o recruit any per son t hrough t he em ploym ent exchange t o fill any vacancy m er ely because t hat vacancy has been not ified under any of t hose sub- sect ions.” A reading of t he plain language of Sect ion 4 m ak es t he em ploym ent ex changes, it is not obliged t o recr uit

18. clear t hat even t hough t he em ploy er vacancies t o t he only t hose who are sponsor ed by t he em ploym ent t he I n Union of I ndia v. N. schem e of t he 1959 Act and obser ved: ( SCC pp. 313 & 315, paras 4 & 6) t his Court exam ined exchanges. Hargopal t o not ify r equir ed “ 4. I t is evident t hat t her e is no pr ovision in t he Act which obliges an em ploy er t o m ake appoint m ent s t hr ough t he agency of t he em ploym ent exchanges. Far from it , Sect ion 4( 4) of t he Act , on t he ot her hand, m akes it explicit ly clear t hat t he em ployer is under no obligat ion t he em ploym ent exchanges t o fill in a vacancy m er ely because t hat vacancy has t o recr uit any person t hrough 7 been not ified under Sect ion 4( 1) or Sect ion 4( 2) . I n t he face of Sect ion 4( 4) , we consider it ut t erly fut ile for t he learned Addit ional Solicit or General t o argue t hat t he Act im poses any obligat ion on t he fr om not ifying t he em ployers apart em ploym ent exchanges. … t he vacancies t o * * * t he best and

6. I t is, t herefor e, clear t hat t he obj ect of t he Act is not t o rest rict , but t o enlarge t he field of choice so t hat t he em ploy er m ay choose t o provide an opport unit y t o t he w orker t o hav e his claim for appoint m ent consider ed wit hout t he work er having t o knock at every door for em ploym ent . We ar e, t her efor e, firm ly of t he view t hat t he Act does not oblige any em ployer t o em ploy t hose persons only who have been sponsor ed by t he em ploy m ent exchanges.” t he m ost efficient and

19. t his Court consider ed a sim ilar quest ion, referr ed j udgm ent Visweshwara Rao case, SCC pp. 217- 18, para 6) I n K.B.N. Visweshwar a Rao case a t hr ee- Judge Bench of t o an earlier I ndia v. N. Hargopal and observ ed: ( K.B.N. in Union of should be m andat ory “ 6. … I t is com m on knowledge t hat m any a candidat e is unable t o have t he nam es sponsored, t hough t heir nam es ar e eit her regist er ed or ar e wait ing t o be regist er ed in t he em ploym ent exchange, wit h t he result t hat t he choice of select ion is r est rict ed t o only such of t he candidat es whose nam es com e t o be sponsor ed by t he em ploym ent exchange. Under t hese cir cum st ances, m any a deserving candidat e is depriv ed of t he right t o be consider ed for appoint m ent t o a post under t he St at e. Bet t er view appears t o be t hat requisit ioning aut horit y/ est ablishm ent t o int im at e t he em ploy m ent exchange, and em ploym ent exchange should sponsor t he nam es of t he candidat es t o t he r equisit ioning depart m ent s for select ion st rict ly according t o seniorit y and reservat ion, as per r equisit ion. I n addit ion, t he appropriat e depart m ent or undert aking or est ablishm ent should call for t he nam es by publicat ion in t he newspaper s having wider circulat ion and also display on t heir office not ice boards or announce on radio, t elevision and em ploym ent news bullet ins; and t hen consider t he cases of all t he candidat es w ho have applied. I f t his procedur e is adopt ed, fair play w ould be subserv ed. The equalit y of opport unit y in t he m at t er of em ploym ent would be available t o all eligible candidat es.” t he By applying t he r at io of t he abovenot ed j udgm ent s t o t he case in hand, we hold t hat t he aut horit ies concerned of t he Sout h- East ern Railway com m it t ed grav e illegalit y by denying appoint m ent t o t he respondent only on t he ground t hat she did not get her nam e sponsor ed by an em ploym ent exchange.”

13. A candidat e who m eet s all eligibilit y crit eria for appoint m ent t o a public post and who is also declared successful in t he select ion held by St at e Public Service Com m ission, cannot be denied appoint m ent only on t he ground t hat his/ her nam e is not sponsored by an Em ploym ent Exchange. I n t he absence of not ificat ion of vacancy t o Em ploym ent Exchange, t here is no quest ion of sponsoring of nam es of candidat es by Em ploym ent Exchange. Right t o be considered 8 appoint m ent under t he St at e is a fundam ent al right , which cannot be denied by t he St at e aut horit ies, wit hout a valid reason. The reason assigned by t he appellant for rej ect ing candidat ure of respondent no .1 does not appear t o be valid.

14. Thus we concur wit h t he view t aken by learned Single Judge in t he im pugned j udgm ent . We do not find any reason t o int erfere in t he m at t er. The Special Appeal, t hus, fails and is, accordingly, dism issed.

15. The appellant was provisionally perm it t ed t o appear t he int erview, vide int erim order dat ed

22.12.2015, passed by learned Writ Court . Report edly result is kept in a sealed cover, t herefore, Ut t arakhand Public Service Com m ission is direct ed t o declare her result and recom m end her nam e appoint m ent , if her score of m arks in t he select ion ent it les her t o such appoint m ent . _______________________________ M A N OJ K UM A R TI W A RI , J. __________________________ A SH I SH N A I TH A N I , J. Dt : 13 t h May, 2025 Shiksha SHIKSHA BINJOLA DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=3410ef86ae41ec9fbabcd5dba6 b3a2c24b5aa08b09c12f21822fbd40bf63 9b1c, postalCode=263001, st=UTTARAKHAND, serialNumber=FD80A2D028949381C527 96A542D7FF0A9BED00E67B5283D205F1 8FE29BDF5DD9, cn=SHIKSHA BINJOLA 9