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M. Sankara Reddy v. A.P. State Electricity Board

Andhra Pradesh High Court

Apr 19, 1979

Judgment

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Factual and Procedural Background

The petitioner is an electrical engineering graduate (B.E., 1970) who registered with the Regional Employment Exchange, Hyderabad. The opinion records a registration number as "pe 2211/70" (paragraph 1) and elsewhere refers to "Pe. 2218/60" (paragraph 1) when describing the registration the petitioner sought to have treated as valid and subsisting. The petitioner initially applied (year described as 1971-72 in paragraph 0/1) for the post of Junior Engineer (Electrical) in the Andhra Pradesh State Electricity Board and was not selected. In 1976 he was appointed temporarily as a Supervisor (Electrical) in the Roads and Buildings Department under rule 10(a)(i) of the General Rules for Andhra Pradesh State and Subordinate Services after being sponsored by the Regional Employment Officer.

The petitioner later applied again to the Board (the opinion records an application dated 16.3.1968 in paragraph 1) but was not called for interview; on enquiry he was told his application was rejected because he had not been sponsored by the Regional Employment Officer. The petitioner filed a writ petition seeking a writ of mandamus directing the Board to consider his application for Junior Engineer by treating his exchange registration as valid and subsisting.

An interim order dated 2.5.1978 directed the Board to interview and consider the petitioner; the petitioner was interviewed pursuant to that order and included in the panel of candidates selected for appointment. The Board filed a counter affidavit asserting the petitioner had not scored sufficient marks to be among the 600 interviewed from 964 applicants, and further stating that it was obliged to obtain candidate lists from the employment exchange and that the exchange had not sponsored the petitioner because his registration card had been transferred to the "dead register" after his temporary appointment. The Regional Employment Officer filed a counter affidavit explaining that, per paragraph 7.44 of the National Employment Service Manual, the petitioner's index card had been transferred to the dead register in January 1976 because he had secured work as a Supervisor, and that the petitioner had not re-registered.

Legal Issues Presented

Whether the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 (the Act) or the Board's service/recruitment rules require an employer (the Board) to appoint only candidates sponsored by the employment exchange, or whether the employer may consider and appoint other eligible candidates who apply directly.
Whether the transfer of the petitioner’s registration card from the live register to the dead register (pursuant to paragraph 7.44 of the National Employment Service Manual) because he obtained temporary employment precluded the employment exchange from sponsoring him for permanent vacancies, and if that procedure deprived him of rights under Articles 14 and 16 of the Constitution.
Whether the actions of the employment exchange (in not sponsoring the petitioner) and the Board (in not considering him on the ground of non-sponsorship) were illegal, violative of Articles 14 and 16 of the Constitution, and contrary to principles of natural justice.

Arguments of the Parties

Petitioner's Arguments (as advanced by Sri T. Bali Reddy)

The Act and the Andhra Pradesh State Electricity Board service/recruitment rules do not prohibit the Board from appointing candidates who are not sponsored by the employment exchange; notification to the exchange does not mean recruitment must be limited to exchange-sponsored candidates.
Section 4(1) of the Act requires notification of vacancies but subsection (4) of Section 4 indicates there is no obligation on the employer to recruit only through the employment exchange.
If the Board were required to recruit solely from exchange-sponsored candidates, persons not sponsored would be denied equal opportunity in employment; such exclusion would violate Article 16(1) (equality of opportunity in public employment) and Article 14 (equality before the law and equal protection).
The petitioner’s appointment as Supervisor was only temporary under rule 10(a)(i), and therefore the employment exchange should not have transferred his registration card to the dead register; doing so deprived him of the right to be sponsored for a post for which he had registered.

Respondents' Arguments (as reflected by Board and Regional Employment Officer)

The Board received many applications and restricted interviews to candidates who secured prescribed marks; the petitioner did not secure sufficient marks and so was not called for interview (Board's personnel manager's statement).
The Board is obliged to notify vacancies to the employment exchange (per the Act) and took lists from the exchange; the petitioner's name was not sponsored because his card had been transferred to the dead register after he obtained a job as Supervisor.
Per paragraph 7.44 of the National Employment Service Manual, an index card of an applicant is transferred to the dead register if the applicant is "placed" or "found work" (even if the appointment is temporary), and therefore the transfer of the petitioner's card was in accordance with the manual and valid.
Because the petitioner was not sponsored by the exchange, he could not be appointed as a Junior Engineer in view of the mandatory provisions of the Act (as contended by the Board in its counter affidavit).

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court conducted a statutory and constitutional analysis focused on the Act, the National Employment Service Manual, and Articles 14 and 16 of the Constitution, and proceeded in the following steps:

Statutory interpretation of the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959:
- The court noted Section 4(1) obliges public sector employers to notify vacancies to an employment exchange and that the Board is an establishment in the public sector as defined in Section 2(2)(f) of the Act, so the Board was bound to notify vacancies to the exchange.
- However, the court pointed to subsection (4) of Section 4 which "clearly provides that no obligation shall be deemed to have been imposed upon any employer to recruit any person through the employment exchange to fill a vacancy merely because the vacancy has been notified under subsections (1) and (2) of section 4." The court read this as indicating there is no statutory compulsion to recruit only candidates who have been sponsored by the exchange.
- The court observed that the Act's purpose is to compel an employer to furnish information to the exchange about vacancies; failure to notify is punishable under Section 7, but compliance with notification obligations does not convert into a duty to appoint only exchange-sponsored candidates.
Constitutional considerations:
- The court emphasised that denying consideration to a candidate solely because the candidate was not sponsored by the employment exchange would deny equality of opportunity in public employment guaranteed by Article 16(1) and would violate Article 14 by imposing an unreasonable classification that lacks a rational relation to the object of selecting suitable candidates.
Status of administrative instructions (National Employment Service Manual, para 7.44):
- The court treated the manual's para 7.44 as administrative or departmental instructions with no statutory force. It held that such internal instructions cannot operate to deprive a citizen of the constitutionally protected right to be considered for appointment to an office under the State.
- The court acknowledged that, under the manual, index cards of applicants who are "placed" or "found work" are transferred to the dead register, and that was the basis given by the Regional Employment Officer for transferring the petitioner's card. The government pleader argued that even temporary appointment amounts to "placing".
Equity and procedural fairness:
- The court noted the practical injustice of the manual's operation where temporary placements lead to permanent transfer to the dead register, thereby preventing sponsorship for permanent vacancies that later arise and resulting in hardship.
- It suggested that authorities should devise procedures or amend instructions to keep names on the live register until an appointment in a permanent capacity is secured or until the candidate requests transfer; it also proposed giving notice to temporarily placed candidates before transferring their cards to the dead register.
Conclusion from analysis:
- On the combined statutory reading and constitutional protections, the court concluded that the Board's refusal to consider the petitioner solely because he was not sponsored by the exchange, and the exchange's refusal to sponsor him on account of the dead-register transfer, were illegal and violative of Articles 14 and 16 and principles of natural justice.

Holding and Implications

Holding: The writ petition is allowed and a writ of mandamus issues directing the first respondent (the Board) to consider the petitioner's application for the post of Junior Engineer on merits and in accordance with the relevant recruitment rules.

Implications and consequences:

Direct effect on the parties: The Board is required to consider the petitioner's application on merits and under the applicable recruitment rules; there is no order as to costs.
On administrative practice: The court expressed the desirability of amending or adopting procedures in the National Employment Service Manual so that temporary placements do not automatically result in permanent exclusion from the live register without notice; it recommended procedural safeguards (keeping names on the live register until permanent appointment or candidate instruction, and notice to temporarily placed candidates before transfer to the dead register).
On precedent: The opinion does not present or cite binding case law within the text; the court's reasoning interprets the Act and administrative instructions in light of constitutional protections, but the opinion itself does not state that it establishes a novel binding precedent beyond the decision in this matter.

W. P. Allowed. (As recorded in the opinion.)

Show all summary ...

(1) The petitioner herein is a graduate in engineering in the electrical branch. He obtained his b. E. Degree in the year 1970 and registered himself in the regional empovment exchange, hyderabad in the same year, his registration number being pe 2211/70. The petitioner registered for the specfic occupation of engineer (electrical) which bours the occupational classification code no. 003. 20 fold) corresponding to 022 10 (new). The petitioner applied in the year 1971 - 72 for the post of junior engineer (electrical) in the andhra praddsb state electricity board but he was not selected. In the year 1976 the petitioner was appoined temporarily as a supervisor (electricat) in the roads and buildings department under ru1e 10 (a) (i) of the general rules of the andhra pradesh state and subordinate services having been sponsored for the said post by the regional employment officer, p and e. , hyderabad.

(2) While so. Having learnt that some posts of the junior engineers had fallen vaccant in the andhra pradesh state electricity board (hereinafter referred to as the board) , the petitioner sent an application to the board on 16. 3. 1968 but the petitioner was not called for the interview. On enquiry he learnt that his application was rejected as he was not'sponsored by the regional employment officer. The petitioner has thereupon filed this writ peittion for the issue of a writ of mandamus directing the board to consider his application for the post of junior engineer by treating the registration of the petitioner in the petitioner in the regional employment exchange with registration no. Pe. 2218/60 as valid and subsisting. The petitioner contends that there is no rule either in the a. P. State electricity board service rules or in the recruitment rules requiring a candidate to be routed through the employment exchange before he is appointed to the service under the bourd he also contends that the regional employment officer should have sponsored the name of the petitioner to the board for considerarion for appoinment to the post of junior engineer as the petitoner had registered bis name is the regional employment exchange for the post of junior engineer (electrical) , that the petitioner was holding the post of supervisor in the roads and buildings department purely on a temporary basis which is liable to be terminated at any time, and that the action of regional employment officer in not sponsoring the name of the petitioner to the board is iliegal and unjust. Pending the wirt petition, he sought interim directions to direct the first respondent to interview the petitioner and consider hss application for appointment to the post of junior engineer. An interim order was passed on 2. 5. 1978 directing the first respondent to consider the petitioner for appointment as junior engineer by calling him for the interview. It is stated that tee petitioner was interviewed and he was included in the panel of candidates selected for appointment to the post of junior engineers.

(3) On behalf of the board, a counter affidavit has been filed by the manager, personnel services stating that 964 applications were received for the post of junior engineer (electrical) put of which the interviews were restricted to 600 candidates who secured the prescribed marks and that the petitioner was not called tor the interview as he secured less marks. It is also stated that the vacancies were notified to the employment exchange as it is obligatory on the part of the board to obtain list of the candidates from the employment exchange, that the name of the petitioner was not sponsored by the exchange as he was already employed in the roads and buildings department of the state government and that as the petitioner's name was not sponsored by the excnange, he was not called for the interview. But the petitioner was interviewed pursuant to the interim directions given by this court. It is further stated that as the petitioner was not sponsored by the exchange, he could not be appointed as a junior engineer in view of the mandatory provisions ot the employment exchanges (compulsory notification of vacancies) act, 1959.

(4) The regional employment officer, hyderabad, the second respondent, has filed a counter affidavit stating that the petitioner's name was registered for the occupation under code no. N. C. O. No. 022. 10 i. E. Junior engineer (electrical) and his registration card was transferred to the dead register in january, 1976 as per the instructions contained in para 7. 44 of the national employment service manual as he secured a job as supervisor (electrical) under the roads and buildings, chief engineer, public works department. It is also stated in the counter that the petitioner did not register his name again in the exchange and hence, the question of sponsoring his name for the vacancies of junior engineer (electrical) notified by the board did not arise as the petitioner's name was not borne on the live register. It is also stated that the transfer of the index card of the petitioner from the live register to the dead register was done in accordance with the instructions in the manual and the before it is valid.

(5) Sri t. Bali reddy, the learned counsel for the petitioner firstly contended that neither the employment exchange (compulsory notification of vancancies) act, 1959 (hereinafter called 'the act') nor the andhra pradesh state electricity board service or recruitment rules prohibit the board from employing a candidate not sponsored by the employment exchange, and therefore, the board was bound to call the petitioner for interview even though he was not sponsored by the employment exchange and consider him for selection on merit along with the other candidates. No provision of of the act has been brought to my notice prohibiting the employer from filling up a vacancy in its establishment with a candidate not sponsored by the exchange. Section 4 (1) of the act requires that every employer in every establishment of a public sector shall notify the vacancy to an employment exchange as prescribed by the rules. Sub - sec. (3) of sec. 4 similarly requires an establishment in a private sector to compulsorily notify the vacancies in its establishment if a in the official gazettee. It is not disputed, that the board is an establishment in public sector as defined in section 2 (2) (f) of the act. If so, it follows that the board is bound to notify the vacancies arising in the said establishment to the concerned employment exchange. But there is no provision in that act requiring that the board shall employ only candidates who have been sponsored by the employment. Exchange. Sub - section (4) of section 4 clearly provides that no obligation shall be deemed to have been imposed upon any employer to recruit any person through the employment exchange to fill a vacancy merely because the vacancy has been notified under sub - sections (1) and (2) of section 4. Sub - section (4) of section 4 therefore gives an indication that there is no complusion on the board to recruit a candidate, merely because he has been sponsored by the employment exchange. The provisions of section 4 are only intended to compel the employer to furnish information to the employment exchange with regard to the vacancies arising in its establishment. The failure to notify the vacancies by the employer is made punishable by section 7 of the act. But once information with regard to the vacancies has been furnished by the concerned exchange in accordance with the provisions of section 4, the statutory obligation must be deemed to have been complied with and no further obligation to recruit a person sponsored 6y the exchange is cast on the employer. The employer has to consider the merits of the persons sponsored by the exachange and also other eligible persons who directly send their applications for appointment to the posts notified by the employer. Otherwise, a person not sponsored by an exchange will be dedrived of his right to be considered for appointment to be a post under the state. Article 16 (1) of the constitution provides that there shall be equality of opportunity for all cititizens in matters relating to employment or appointment to any office under the state, and article 14 of the constitution confers a right to equality before law and also equal protection of laws. If a person is not considered for appointment solely on the ground that be is not sponsored by the exachange, it will amount to denial of the right to equality of opportunity in matter relating to employment of appointment. Hence, the action of the 2nd respondent in not calling the petitioner for interview solely on the ground that he was not sponsored by the employment exchange is illegal and violative of of the petitioner's right to equality of opportunity for oppoinement and also consititution an invidious discrimination which is not based upon any reasonable classification having rational relation to the object, viz, selection, of suitable candidates for appointment to the posts advertised or notified by the board. It is contended by the learned government pleader for the 2nd respondent, that the petitioner's name was originally registered for the recommended occupation of. Of occupation of 903. 20 which was latter altered to 922. 10 and that the petitioner was sponsored by the exchange for the post of supervisor in the roads and buildings department and he was selected and appointed in the said post, and, therefore, he was treated as "placed" and his registration card was transferred from the live register to the dead register in accordance with the instrusctions contained in para 7. 44 of the nationall employment service manual, and the petitioner did not re - register his name, and hence, the question of sponsoring the petitioner's name to the board for consideration for appointment to the post of junior engineer did not arise, as his registration card was no longer in the live register.

(6) On the other hand, it is contended by sri t. Bali reddy, the learned counsel for the petitioner that be was appointed as a supervisor only in a temporary capacity under rule 10 (a) (i) of the general rules for andhra pradesh state and subordinate services, and that said appointment is liable to be terminared at any timeand, therefore, the employment exchange should not have transferred the registration card to the dead register and thereby deprive him of the right to be sponsored for a post for which he has been registered in the exchange. Para 7. 44 of the national employment service manual provides as follows:

"dead register: 7. 44 - index cards of applicants transferred to the dead register due to non - renewal, placing, found work etc. , will be filed according to registration numbers or in alpha - : betical order according to names of applicants whichever is considered more convenient by the state directors; d. G. E. Andt. Will, however, be kept informed. In the dead register, cards transferred during the month will be kept separate in a month's section and cards transferred during the previous 12 months in a 12 months' section with card separators showing the months to which the cards relate. In the month's section a well as in each of the 12 months' section, the cards of applicants placed will be kept separate from others"

(7) According to the aforesaid instructions, the registration card of a person who has been 'placed' or who was 'found work' or whose registration has not been renewed, is liable to be transferred to the dead register.

(8) The learned government pleader contends that even a person sponsored by the exchange is temporarily appointed, he will be treated as "placed" according to the definition of "placing" in para 2 - 1 of the manual, and, therefore, the petitioner having been appointed as supervisor though temporarily was treated as ''placed", and, hence, his registration card was validly transferred to the dead register, and his name could not be sponsored once againt to the board for consideration for appointment to the posts of junior engineer. If the provisions of the act are to be construed as precluding the employer from appointing persons other than those sponsored by the exchange, and instructions in the manual in para 7. 44 are to be construed as precluding a person even though "placed" in a temporary appointment from being sponsored for a regular post under an employer, they result in deproiving the right of a citizen for being considered for appointment or employment, and they are viloative of the rights under articles 14 and 16 of the constitution. As already held by me, the provisions of the act do not preclude the employer from considering for appointment candidates other than those sponsored by the exchange provided he is eligible and qualified according to the relevant rules. Further, the instructions contained in the national employment service manual are purely administrative or departmental instructions and have no statutory force and cannot deprive a citizen of his right to be considered for appointment to an office under the state.

(9) In the circumstances, it appears to me that it is desirable that the authorities concerned should devise a procedure or make a suitable amendment to the instructions for continuing the name of the registered candidates in the live register till the candidate secures an appointment in a permanent capacity or till the candidate informs that his registration card may be transferred to the dead register. It may also be desirable to amend the instructions suitably to give notice to the candidate who is temporarily placed, before transferring his registration card from the live register to the dead register. The procedure prescribed by the national employment service manual results in great hardship to candidates who are temporarily placed but whose cards are permanently transferred to the dead register and deprives them of the right to be sponsored for permanent vacancies in the establishment of an employer when he notified such vacancies in accordance with the provisions of the act.

(10) In the instant case, the procedure adopted by the employment exchange in not sponsoring the name of the petitioner on the ground that his registration card was transferred to the dead register, and the action of the board in not considering the petitioner's name for appointment to the post of junior engineer on the ground that his name was not sponsored by the exchange, are illegal and vilative of the rights of the petitioner under articles 14 and 16 of the constitution, and are also violative of the principles of natural justice.

(11) For the foregoing reasons, the writ petition is allowed and a writ of mandamus will issue directing the 1st respondent - board to consider the application of the petitioner for the post of junior engineer on merits and in accordance with the relevant recruitment rules,. In the circumstances of the case, there will be no order as to costs. W. P. Allowed.