(1) A common question arises in this batch of writ petitions. It would be sufficient if i state the facts in the first of the writ petitions, i. E. , w. P. No. 11535/83.
(2) The divisional manager, a. P. State road transport corporation, kurnool, notified to the |district employment exchange, kurnool, certain vacancies in the category of conductors. The district employment officer, accordingly, forwarded certain names. Though the petitioners were also registered with the employment exchange, kurnool, their names were not forwarded, obviously because there were many persons registered far earlier to them, and the petitioners' turn had not yet arrived. The petitioners applied to the divisional manager, a. P. State road transport corporation, kurnool, directly, to call them for interview and to consider their cases for appointment as conductors. This was refused by the divisional manager on the ground that their names have not been sponsored/by the employment exchange. This refusal of the divisional manager is challenged in these writ petitions as illegal and violative of the equal opportunity clause enshrined in articles 14 and 16 of the constitution of india. Reliance is mainly placed upon the decision of a learned single judge of this court, in sankara reddy vs. A. P. S. E. Board.
(3) The divisional manager (respondent in the writ petition) has not issued or published any notification or advertisement inviting applications for the said posts. He has merely notified the concerned employment exchange of the said vacancies, and proposed to consider only those persons who are sponsored by the employment exchange. The question is, whether the petitioners have a rightwhether flowing from articles 14 and 16, or otherwiseto compel the respondent, divisional manager, to call them also for interview and to consider their cases for appointment to the said posts, in the above circumstances.
(4) Article 14 of the constitution enjoins the state not to deny to any person equality before law, or the equal protection of the laws within the territory of india. Article 16 specifically ensures equality of opportunity for all citizens in matters relating to employment or appointment to any office under the state. Where an appointment is proposed to he made to any office under the state, it is obligatory upon the appointing authority to consider the claims of all eligible persons on a fair basis, and make a selection. But, this does not mean that in every case it is obligatory upon the appointing authority to issue a public advertisement inviting applications. We are not concerned with a situation where there is a rule or other provision of law requiring the publication of such notification or advertisement. No such obligation is cast either by article 14, or article 16 by themselves; see the full bench decision of the punjab and haryana high court in daljit singh vs. State of punjab. The full bench of five judges considered this very question, viz. , whether art. 16 requires that, while making a direct recruitment to an office under the state, it is obligatory to issue an advertisement in the public press, so as to reach every conceivable candidate in the country ? on a consideration of the several decisions of the supreme court as well as other courts it came to the conclusion that there is no such obligation. The same view was also taken in kartar singh rai vs. State of punjab ; state of uttar pradesh vs. Bhola nath srivastava jauhar ; dr. S. T. Venkataiah thimmaiah vs. Stale of mysore ; and parmatma sharon vs. Chief justice of rajas than high courts these decisions negative the contention that the decision of the supreme court in b. N. Nagarajan vs. State of mysore, or in r. N. Nanjimdappa vs. T. Thimmaiah, do infer any such obligation.
(5) This is not to say that the appointing authority can consider whomsoever it wishes or or chooses, or that it can appoint any one it likes in a secretive or cloistered manner. Publication of a notification in the press calling for applications may undoubtedly be the best method ; what all i am saying is that, it is not the only method and that, there can be other methods which are equally efficacious and which also satisfy the requirements of articles 14 and 16. The ultimate test in that any method adopted must ensure adequate publicity either to the public at large or to the class or source for which recruitment may be confined. It is from this stand - point that the question at issue has to be examined. The question is whether it would be sufficient compliance with the requirements of articles 14 and 16 if the appointing authority merely intimates the vacancies to the concerned employment exchange office, and considers the persons sponsored by it ? the further question is, whether the appointing authority is under an obligation to consider the case of every such person who, coming to know of such vacancies, applies on his own, though there is no advertisement or notification inviting applications ? this involves an examination of the scheme and the organisation of employment exchange, as also the provisions of the employment exchanges (compulsory notification of vacancies) act, 1959.
(6) In 1919, the unemployment convention of the international labour organisation was adopted by the first session of the international labour conference held in washington. It contemplated establishment of a system of free public employment agencies under the control of a central authority. India ratified the convention in 1921, but no follow - up action was taken by this country. Indeed, the royal commission on labour in india (1931) which examined the question of establishing employment exchanges, felt that the time was not opportune for setting up such exchanges. In 1938, india repudiated the i. L. O. Convention of 1919.
(7) The feasibility of establishing employment exchanges was discussed by various committees set up by the central and provincial governments to investigate different aspects of labour and employment problems, such as the unemployment committee under the chairmanship of sri tej bahadur sapru (1935) ; the bihar labour enquiry committee under the chairmanship of dr. Rajendara prasad (1940) , and the bombay textile labour enquiry committee under the chairmanship of mr. Justice m. V. Divatia (1940). Inspite of the recommendation's of these committees no concrete action was taken till 1940, when the establishment of an employment services was found essential to tackle war - time needs for technical and also to handle the post - war resettlement problems, expected to be posted by demobilisation after the war. Accordingly, an ordinance, called 'national service (technical personnel) ordinance, 1940' was issued by the central government, and national service labour tribunals were set up thereunder. Towards the close of world war ii, it was felt that an employment exchange organisation should be built up to deal with the registration and voluntary placement of skilled and semiskilled workers, who would be thrown out of employment on the termination of hostilities. The tribunals set up under the aforesaid ordinance had already gained sufficient experience and, therefore, it was proposed to make use of their expertise. Accordingly, in 194344, eight employment exchanges were set up on an experimental basis. At ahmedabad, bombay, calcutta, kanpur, delhi, jarnshedpur, nagpur, and madras, besides two employment exchanges at karachi and lahore, which were under the control of the national service labour tribunal until 1945. These exchanges were initially open only to technical personnel. Employers were required to notify to the employment exchanges all vacancies in the technical categories and to furnish monthly reports on how the vacanc:'es had been filled. While it was not obligatory on the employers to engage a person sponsored by the exchange, they were required to give reasons for rejecting the candidate sponsored by the exchange. Industrial undertakings were also required to issue to technical personnel, discharged or dismissed by them, service certificates in the prescribed form.
(8) At the end of word war ii, and under the stress of post - war demobilisation, it was felt necessary to evolve a machinery that would facilitate orderly absorption in civil life of a large number of service personnel and war - workers being released from war service. Having regard to the complexity and magnitude of the problem, also with a view to ensure uniformity and co - ordination of policies governing demobilisation and re - settlement, it was considered necessary to set up an employment organisation, direct under the control of the centra! government. Indeed, the government of india act, 1935 was amended to make the labour and employment subject which was until then a provincial subject a concurrent subject thereafter, in july 1945, the directorate - general of re - settlement and employment was created, with the object of supervising, co - ordinating and directing the work of both the central and regional offices of the organisation. The entire country was divided into 9 regions, each placed under the charge of a regional director. The scheme evolved, contemplated for establishment of a net - work of 71 employment exchanges throughout the country, by february, 1946. At the time of partition, there were 70 employment exchanges, out of which two regional and 15 sub - regional exchanges were transferred to pakistan, and the remaining retained in india. The central employment exchange was originally concerned with the work in connection with appointments in the central government. In september, 1947, however, this work was transferred to the regional employment exchange, delhi. The central exchange was re - designated as the "central clearing house" to act as an inter - provincial clearing house to balance the supply and demand for labour within the various regions. The regional and subregional employment exchanges were made responsible for registration and placement of personnel within their respective areas. For the efficient working of the scheme and to meet the needs of trained and competent managerial staff, a staff training centre was also set up in delhi.
(9) After the partition of the country, more exchanges were opened, particularly in east punjab and west bengal, to handle the re - settlement of displaced persons from areas in pakistan. By the end of 1950, the number of exchanges rose to 123. Similar offices were established even in the former princely states.
(10) In august, 1947, the employment exchanges were also vested with the responsibility of re - settlement in wage - paid employment of a large number of displaced persons from pakistan. At the same time, there was a growing public demand that employment exchanges should render employment assistance to other categories of employment seekers as well. Consequently, in 1947 the employment exchanges in assam, west bengal, bihar, delhi, and uttar pradesh were thrown open to all categories of employment seekers. In bombay, madras and orissa also the scope of employment exchanges was enlarged to include certain other categories of persons, besides ex - servicemen and discharged war - workers. In early 1948, the government of india threw open the employment service to all employment seekers. The tenure of the directorate - general of re - settlement and employment was extended, from time to time.
(11) In order to examine the future of the employment serivce, the government of india in the ministry of labour, set up a training and employment service committee under the chairmanship of sri b. Shiva rao, member of parliament, in 1952. The main object behind the setting up of the said committee was
"to assess the need for the continuance of the organisation in the context of country's economic and social development and to suggest with reference to such need what its future shape should be"
. It was in pursuance of the recommendation of this committee that employment service organisation was made permanent and the day - to - day administrative control was transferred to the state governments with effect from 1 - 11 - 1956.
(12) While there is no compulsion on the employment seekers to register themselves with the employment exchange, the organisation soon became well known throughout the country, and because of the unique nature of the service performed by it, almost every seeker of employment started registering himself with this exchange. No fee has ever been prescribed for registering the usemployed persons.
(13) Statutory recognition of this service came by the enactment of the employment exchanges (compulsory notification of vacancies) act, 1959. Clause (d) in section 2 defines "employment exchange". According to it, employment exchange means "any office or place established and maintained by the government for the collection and furnishing of information, either by the keeping of registers or otherwise, respecting " (i) persons who seek to engage employees; (ii) persons who seek employment ; and (iii) vacancies to which persons seeking employment may be appointed". According to sub - section (1) of section 3, the act does not apply in relation to vacancies (a) in any employment in agriculture (including horticulture) in any establishment in private sector other than employment as agricultural or farm machinery operatives: (b) in any employment in domestic service; (c) in any employment the total duration of which is less than three months; (d) in any employment to do unskilled office work; and (e) in any employment connected with the staff of parliament. The expression "unskilled office work", "establishment in private sector", and "establishment in public sector" have been defined in section 2 of which, however, it is not necessary to refer herein. According to sub - section (2) of section 3, the act also "does not apply to filling up of vacancies through promotion or by absorption of surplus staff of any branch or department of the same establishment, or on the recommendation of any independent agency, such as the union or a state public service commission, and to vacancies in any employment which carries a remuneration of less than rs. 60/ - per month.
(14) Section 4 is the central provision of the act, and may beset out in full:
"4. Notification of vacancies to employment exchanges: (1) after the commencement of this act in any state or area thereof, the employer in every establishment in public sector in that state or area shall, before filling up any vacancy in any employment in that establishment. , notify that vacancy to such employment exchanges as may be prescribed.
(2)
The appropriate government may, by notification in the official gazette require that from such date as may be specified in the notification, the employer in every establishment in private sector or every establishment pertaining to any class or category of establishment in private sector shall, before filling up any vacancy in any employment in that establishment, notify that vacancy to such employment exchanges as may be prescribed, and the employer shall thereupon comply with such requisition.
(3) the manner in which the vacancies referred to in subsection (1) or sub - section (2) shall be notified to the employment exchanges and the particulars of employment in which such vacancies have occurred or are about to occur shall be such as may be prescribed.
(4) nothing in sub - sections (1) and (2) shall be deemed to impose any obligation upon any employer to recruit any person through the employment exchange to fill any vaca'ncy merely because the employment exchange to fill any vacancy merely because that, vacancy has been notified under any of those subsections".
(15) It would bt evident from a reading of section 4 of the act that, an obligation is cast upon the employer in every establishment in public sector in a state or area thereof, to notify the vacancy to the prescribed employment exchange, before filling up such vacancy. A similar obligation is created upon the employer in every establishment in private sector, as may be notified by the appropriate government. The manner in which the vacancies are to be notified to the employment exchanges, and the particulars to be furnished in that behalf, shall be such as may be prescribed by rules. Sub - section (4) , which constitutes the sheet - anchor of the petitioners' contention, says that it shall not be obligatory upon the employer to recruit a person sponsored by the employment exchange merely because the vacancy has been notified to the employment exchange. More about this sub - section later.
(16) Section 5 creates an obligation upon every employer to furnish such information or return, as may be prescribed by rules, in relation to vacancies that have occurred, or are about to occur in that establishment, to the appropriate employment exchange. The government is also empowered to call for such information from the employers as and when it deems it necessary, and the employers are bound to furnish such information in the prescribed manner. Section 6 empowers, the prescribed officer of the government, or any other person authorised in that behalf, to have access to any relevant record or document in possession of any employer required to furnish any information or return under section 5, and to inspect or take copies of the same. Section 7 provides for penalties for violation of the obligations created by sections 4 and 5, as also upon the person who impedes or obstructs the work of any officer, contemplated by section 6. The person found guilty is punishable for the first offence with fine which may extend to rs. 250/ - , and for every subsequent offence with line which may extend to rs, 500/ -. Section 8 declares that prosecution for an offence under this act shall not be instituted except by, or with the consent of, such officer as may be prescribed in that behalf by the government, or any other person authorised in that behalf. Section 10 confers the rule making power upon the central government.
(17) Rules have been made under section 10, prescribing the vacancies which have to be notified to the appropriate employment exchanges. According to rule 3, vacancies in the posts of a technical and scientific nature carrying a basic pay of rs. 425/ - or more per month, occurring in establishments in respect of which the central government is the appropriate government under the act, and vacancies which an employer may desire to be circulated to the employment exchanges outside the state or union territory in which the establishment is situated, shall be notified to such central employment exchange as may be specified by the central government by notification in the official gazette in this behalf. It is also directed that, vacancies other than those specified in sub - rule (1) of rule 3 shall be not ified to the local employment exchange concerned. These rules came into force with effect from may 1, 1960. Rule 2 defines the expression "central employment exchange" and "local employment exchange". Rule 4 prescribes the form and manner of notification of vacancies, while rule 5 prescribes the time limit within which the vacancies have to be notified.
(18) Rule 6 provides for submission of returns. Rules 7 and 8 specify the officers for the purpose of section 6 of the act, as well as the authorities competent to institute or sanction the institution of prosecution. The rules also prescribe the form in which the returns have to be submited.
(19) By g. O. Ms. No. 1151, dated 24 - 5 - 1960 issued by the government of andhra pradesh, the government has specified the various local employment exchanges for the several districts mentioned therein. Several notifications have been issued, from time to time, under the rules, specifying the local employment exchanges for various areas, which it is not necessary to mention in detail. In g. O. Ms. No. 535, dated 28 - 6 - 1965, issued by the government of andhra pradesh, the orders issued earlier were reiterated, and it was stated that the recruitment to all posts in subordinate service which are excluded from the purview of the a. P. Public service commission and all other posts which are not within the purview of public service commission, as also all posts in last grade service, and to posts which are within the purview of a. P. Public service commission but where the posts are sought to be filled in from among the approved candidates, shall be made only through the employment exchanges. It was stated that outside candidates can be appointed only after obtaining a non - availability certificate from the employment exchange, or after exhausting three consecutive panels sent by the employment exchange. It was further clarified that the above orders are applicable to all government departments, government companies, and corporations, including co - operative societies established by or under a central, provincial or state act, which are owned, controlled or manage by the government, and all local authorities. It was further directed that; in case of any violation of the above instructions, the appointing authority shall be held responsible, and shall be liable to be prosecuted. While it is unnecessary to refer to the several orders issued by the central government and the state government in this behalf, it is sufficient to say that these orders provide for several situation which may arise in the working of the act and the rules.
(20) Executive instructions have also been issued, contained in the national employment service manual, issued under the authority of the directorate of employment exchanges, ministry of labour and employment, laying down exhaustively the manner in which employment seekers should be registered, where to register, documentation of all vacancies, and the criteria upon which they should be registered, and sponsored. No fees is prescribed for registering a candidate. Both employed, as well as un - employed can get themselves registered, but preference is to be given to the unemployed. It is also provided that the employer should be given as wide a field of choice as passible and that, no limit to the number of persons to be employed, should be prescribed by the employment exchange. The employer is also entitled to inspect the live register, if he so desires. It is thus clear that the organisation of employment exchanges has come to stay in this country and has also received statutory recognition. The doors of these employment exchanges are wide open to all citizens, whether employed or unemployed, who seek employment, without any monetary charge whatsoever. All employers in the public sector, as also the notified employers in private sector are under an obligation to notify the vacancies to these exchanges. An elaborate and comprehensive procedure has been evolved for first classifying and documenting all the applications of the employment seekers and their subsequent forwarding to, and consideration by the employers. The employment exchanges are bound to send the names of suitable candidates against the vacancies notified. In view of this vast net - work
"it appears a little too late in the day to hold that the vast net - work of employment exchanges developed for over a period of 30 years by the ministry of labour and employment over the whole country is not a well published medium, so as to form a reasonable classification for the purposes of a source of recruitment."
, as observed by the full bench of punjab and haryana high court. This medium prescribes an open well publicised and a statutory market which fairly serves the interests of all those who are seeking employment, as also all those who can provide the same. It so, it must follow that an appointment made to a post under the state, alter notifying the vacancy to the prescribed employment exchange, satisfies the requirements of articles 14 and 16 and that, it is not obligatory upon the employer to issue a public advertisement. The position would be different as already emphasized if there is a rule or other provision of law requiring that such a public notification should be issued, calling for applications.
(21) Now the next question is; where a public notification has not been issued calling for applications, and where the employer proposes to fill up a vacancy only by notifying the same to the concerned employment excnange, has any citizen a right to compel the employer to consider his ease also for such appointment, even though he is not sponsored by the employment exchange? 1 am unable to find any basis for such a right. Normal satisfied that such a right flows either from a reading of sub - sec. (4) of section 4 of the act, or from articles 14 and 16 of the constitution. Sub - section (4) ol section 4 mereiy says that, from the fact that an employer has notified a vacancy or vacancies, as the case may be, to the appropriate employment exchange as required by the act, it does nut lojlow that he is under an obligation to appoint a person sponsored by the employment exchange. In other words, if the employer finds that none of the persons sponsored by the employment exchange or available from the employment exchange, is suitable for the post, it is open to him 10 appoint a person not so sponsored by the employment exchange. But, if he wants to do so, he would again be under a constitutional obligation to cither issue a public notification or adopt such other fair and appropriate procedure as to ensure an equality of opportunity to all eligible persons. But, sub - section (4) of section 4 cannot be understood as conlerring a right upon a person to compel an employer to consider his application also along with the sponsored persons, or without reference to the sponsored persons, as the case may be. Indeed allowing such a course would itself create room for arbitrariness and would also give rise to a situation which would be inherently discriminatory, any person who comes to know of vacancy through his own sources, would be able to apply for the post, whereas the others who may not know of the existence of vacancy, would not be able to apply. Where, of course, a public notification has been issued inviting applications, no such complaint arises ; but, where there is no such public notification, it would depend upon the enterprise of each individual person to find out or ferret out the information relating to existence of vacancies at the appropriate time, and apply for the same. Similarly, it is also not possible to hold that, by virtue of articles 14 and 16 of the constitution, an employer is bound to consider every such application made by a person on his own, without being sponsored by the employment exchange. Once it is held that filling up of a post by merely notifying it to the prescribed employment exchange, without issuing a public advertisement calling for applications, is a sufficient compliance with the requirements of articles 14 and 16, the said contention automatically falls to the ground. Indeed, if permitted, such a course tends to undermine the very object underlying tht scheme and organisation of employment exchanges, besides giving rise to the unequal situation pointed out above.
(22) Now, i must refer to the decision of the learned single judge in sankara reddy vs. A. P. S. E. Board upon which strong reliance is placed by the counsel for the petitioners. The following paragraph brings out the ratio of the judgment :
"sub - section (4) of section 4 therefore gives an indication that there is no compulsion on the board to recruit a candidate, merely because he has been sponsored by the employment exchange. The provisions of section 4 arc 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 to 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 by the exchange is cast on the employer. The employer has to consider the merits of the persons sponsored by the exchange 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 deprived of his right to be considered for appointment to a post under the state. Article 16 (1) of the constitution provides that there shall be equality of opportunityjor all citizens 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 he is not sponsored by the exchange, it will amount to dential of the right to equality of opportunity in matters relating to employment or 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 the petitioner's right to equality of opportunity for appointment and also constitutes 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."
.
The learned judge held that the employer has to consider the merits of not only the persons sponsored by the employment exchange, but also of all other eligible persons who directly send their applications for appointment to the posts notified by the employer. The learned judge was of the opinion that, if the employer refuses to consider the direct applications, such persons would be deprived of the constitutional right guaranteed to them by article 16 (1) and article 14 of the constitution. Unfortunately, the decisions referred to hereinbefore, which delineate the parameters of the guarantee enshrined in articles 14 and 16 (1) , with particular reference to direct recruitment to a post under a state, were not brought to the notice of the learned judge, which is the reason why the learned judge assumed, without a fuller discussion, that non - consideration of such direct applications would violate the guarantee enshrined in arts. 14 and 16 (1). Indeed, counsel for the petitioners could not bring to my notice any other decision, holding that, notwithstanding the notification of the vacancies 10 the employment exchange, the employer is bound to consider the applications directly received by him, though he has not issued any advertisement or notification inviting applications from 'the public. In the circumstances, therefore, the said assumption made by the learned judge with the greatest respect to the learned judge cannot be deemed to be a decision on the scope and extent 11 the guarantee in articles 14 and 16 (1) of the constitution. In this view of the matter and in view of the abundant authority of the several high courts, referred to above, including the two full bench decisions of the punjab and haryana high court, i do not think it necessary to refer the matter to a bench.
(23) Before concluding, j feel it my duty to advert to a complaint urged with great seriousness by the counsel for the petitioners. Ho complained that there are wide - spread irregularities in the working of employment exchanges ; that there is any amount of corruption rampant in those offices and that, while persons who were registered long ago are not being sponsored, their juniors are being sponsored by manipulating the records, or otherwise. It is complained that no person is ever sponsored by an employment exchange unless he is able to spend substantial sums by way of illgeal gratification to the concerned employees officers in an exchange. It is not, however, possible for me to express any opinion on the correctness or otherwise of this complaint, except referring to the wide - spread feeling among the public that the working of those exchanges leaves very much to be desired, and requires a thorough reorganisation to eliminate, to the extent possible, the several irregularities and abuses complained of by public. I am sure that the secretary to government, labour and employment department, would look into this matter and take all necessary steps to stream - line the working of these exchanges, to eliminate any scope for abuse and irregularities.
(24) The result of the above discussion may be summarized thus, (i) articles 14 and 16 (1) of the constitution do not cast an invariable or mandatory obligation upon an employer to advertise a vacancy for public information, through press unless, of course, there is a rule or other provision of law requiring him to do so. This does not, however, mean that an employer can take an appointment to a post under the state in such manner as he likes. In the absence of any rule or other provision of law prescribing the procedure to be followed by him he must follow a fair and reasonable procedure which ensures an equal opportunity for all eligible persons to apply for the post and then consider the same on a fair and reasonable basis ; (ii) that it would be sufficient compliance wich the requirements of articles 14 and 16 (1) of the constitution, if an employer notifies the vancancies to the prescribed employment exchange, and makes a selection from (out of the persons sponsored by the employment exchange. In case none of the candidates sponsored are found suitable, it is open to him to issue a public notification, or adopt such other fair and reasonble procedure as would comply with the requirements of articles 14 and 16 ; (iii) that, it is open to an employer to adopt both the methods viz. ,to issue an advertisement or notification and intimate the vacancies to the employment exchange. In such cases he can consider both the categories of persons viz. , those who are sponsored by the employment exchange, and also those who directly apply in pursuance of the advertisement issued by the employer, and make selection; and (iv) that when an employer does not issue a notification or advertisement inviting applications from the public but merely notifies the vacancies to the prescribed employment exchange a person who is not sponsored by the employment exchange has no right to compel the employer to consider his case also for such appointment or to appoint him.
(25) In the light of the above principles, all the writ petitions are dismissed but since all the petitioners are unemployed persons, i make no order as to costs. Advocate's lee rs. 50/ - in each.