Subhash Chand Sharma v. State of Rajasthan — 1996 DIGILAW 696 (RAJ)

Honble SINGHAL, J.–All the above mentioned writ petitions are disposed of by this common order since the point involved in each of them is common. (2). The grievance of the petitioners is against the order dated 1.9.1993 by which it was made compulsory to fill-up the vacancies of all government departments, semi-government institutions, public enterprises by calling the names from the Employment Exchange. The posts which are to be filled up by the Employment Exchange were included in this order. Learned counsel for the petitioners have raised the following objections before me: (a) that the matter is covered by the decision of this court in the case of Dinesh Kumar Dadhich vs. State (1), which is passed on the decision of Jagdish vs. State (2). (b) that the procedure for selection for direct recruitment have been provided under Part IV of the Rajasthan Educational Subordinate Service Rules, 1971 and, therefore, the respondents were not justified in calling the names from the Employment Exchange and giving names to those candidates whose names were sponsored by the Employment Exchange; and (c) that the respondents are only under the obligation to notify the vacancies through Employment Exchanges and are not under obligation to fill up the posts from the names sponsored by the Employment Exchanges and filling up the posts and making recruitment on the basis of such names which are sponsored by the Employment Excha- nge is contrary to the rules. (3). I have considered the arguments of learned counsel for both the parties. In order to appreciate the arguments of learned counsel for both the parties, it is necessary to refer the various orders, rules and judgments. There was a circular dated 4.4.1958 referring the earlier circular dated 30.5.1951 by which it was enjoi- ned that the vacancies should be notified through the nearest Employment Exchange. The name is not sponsored by the Employment Exchange the appointing authority may proceed to fill up the vacancy through another channel or even if eligible candidates are not available, the posts should be filled up from open market. The name is not sponsored by the Employment Exchange the appointing authority may proceed to fill up the vacancy through another channel or even if eligible candidates are not available, the posts should be filled up from open market. By an order dated 23.9.58 of the Chief Secretary, Government of Rajasthan, it was notified that the Governor has been pleased to order that in cases where posts are outside the purview of the Rajasthan Public Service Commission, and which are not filled up by promotion or from the competitive examinations, vacancies should be filled up from the panel of posts sent by Employment Exchanges after the posts have been notified to them. No appointments should be made by any other method unless the Employment Exchanges certify that they have no candidates of the required qualifications, or the candidates suggested by them are found unsustainable. By order dated 15.10.1962 it was observed that pending selection by the Rajasthan Public Service Commission, appointing authorities,some times make provisional recruitment to fill such posts for a period of six months months on grounds of emergency by innusing short term advertisement. If often happens that the appointing authorities do not notify such vacancies to the Employment Exchanges. This goes against the spirit of the instructions issued by the Government. As these vacancies are filled only temporarily by the Departments, pending selections by the Rajasthan Public Service Commission and are ultimately to be filled by candidates sent by the Commission, these are also required to be notified to the Employment Exchanges. It is, therefore, clarified or the information of all concerned that in cases where posts coming under the purview of the Rajasthan Public Service Commission are to be filled in provisionally by the appointing authorities till such time as candidates recommended by the Commission are available by the issue of short term advertisement such vacancies have also to be notified to the Employment Exchange. (4). By order dated 29.10.1965 the reference of Employment Exchanges was made applicable to quasi-government institutions, statutory organisations in the State and Local Bodies for the purpose of recruitment of staff. The notification dated 19.6.1968 was issued with regard to posts in the education department which is as under:– ``Sub: Recruitment against various posts in the Education Deptt. (4). By order dated 29.10.1965 the reference of Employment Exchanges was made applicable to quasi-government institutions, statutory organisations in the State and Local Bodies for the purpose of recruitment of staff. The notification dated 19.6.1968 was issued with regard to posts in the education department which is as under:– ``Sub: Recruitment against various posts in the Education Deptt. It has been observed that inspite of the various institution that have been issued by the Government from time to time regarding recruit- ment through the agency of Employment Exchanges, appointments are frequently made by various appointing authorities in the Education Department which are not in accordance with the procedure laid down by the Government. Several cases have come to the notice of the Government where appointments were made without reference to the Employment Exchanges and the payment of salaries of such persons was held up by the Treasury Officers. There have also been instances where the appointing authorities, appointed persons registered at the Employment Exchanges on the basis of their Registration Cards only and sub- sequently asked the Employment Exchange to send their (X-3) Introduction Cards which the Exchanges are unable to do at that stage. It has also been observed that instead of notifying the vacancies to the Employments Exchange in the prescribed form, appointing authorities sometimes recruit persons by directly advertising the vacancies in the press. All such appointments are irregular and they not only result in the violation of government instructions and provisions of the Employment Exchanges (Compulsory Notification of Vacancies) Act, but also cause a lot of hardship to the persons so appointed. In this connection attention is invited to Labour & Employment Department Circular No.F.4(9) Lab./56, dated 26/29.8.1967 in which all the important instructions issued by the Government on the subject of recruitment, through Employment Exchanges have been reproduced. It is emphasised that these instructions should be screpulously observed. It is enjoined upon all appointing authorities that in future the following points should always be kept in view while making appointments against vacant posts:- 1. Vacancies should invariably be notified to the concerned Employment Exchange in the prescribed proforma. 2. Employment Exchanges should be allowed reasonable time for submitting suitable applicants and persons submitted by the Employment Exchange only should be considered for appointment in the first instance. 3. Vacancies should invariably be notified to the concerned Employment Exchange in the prescribed proforma. 2. Employment Exchanges should be allowed reasonable time for submitting suitable applicants and persons submitted by the Employment Exchange only should be considered for appointment in the first instance. 3. If local Employment Exchanges are unable to sponsore suitable candidates from their own live registers, they may be asked to circu- late the vacancies to other Employment Exchanges where such candidates might be available. 4. If the Employment Exchanges are not in a position to sponsore candidates and therefore, issue a non-availability certificate then only the appointing authorities will be free to make appointment from the open market by advertisement. Any departure from these instructions will be taken serious note of by the Government. (5). There had been number of other circulars. The necessity to fill up the posts only by calling the names from the Employment Exchanges was finished by order dated 29.1.1990 and the order dated 1.9.93 was issued by which the order of 29.1.1990 was cancelled. (6). Under the Rules of 1971, the procedure for direct recruitment has been given under Rule 16 which provides that application for direct recruitment to post in service shall be invited by the Commission or by the appointing authority as the case may be, by advertising the vacancy to be filled in the official gazette or in such other manner as may be deemed fit. Article 309 of the Constitution of India provides that subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State. (7). The Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 was promulgated by the Parliament and under Sec. 4 of the said Act it was made incumbent upon the employer to notify the vacancies. (8). The National Employment Service Mannual has laid stress for filling up the vacancies through Employment Exchanges. The relevant portion is as under:- ``On receipt of demands, a candidate should be submitted from the annual list strictly in order of seniority in the ratio of 1:20 in case of public sector vacancies. The State Government may, however, have the discretion to raise this ratio in case it is considered necessary, in case the local conditions so demand. The relevant portion is as under:- ``On receipt of demands, a candidate should be submitted from the annual list strictly in order of seniority in the ratio of 1:20 in case of public sector vacancies. The State Government may, however, have the discretion to raise this ratio in case it is considered necessary, in case the local conditions so demand. However, in each case, a scheme of Selection should be prepared on the basis of prescribed qualifications, experience, age etc. and the applicant selected in order of seniority from the annual list fulfilling the criteria in the scheme of selection. (9). The submission of the learned counsel for the petitioners is that the respondents are under obligation to fill up the vacancies only from the names sponsored by the Employment Exchanges as was considered by the Apex Court in the case of Union of India & Ors. vs. N. Hargopal & Ors. (3). In that case the provisions of Employment Exchange (Compulsory Notifications of Vacancies) Act, 1959 were interpreted and insistence of recruitment through Employment Exchanges was challenged as violative of the provisions of Article 14 and 16 of the Constitution of India. It was observed by the Apex Court that `insistence of recruitment through employment exchanges advances rather than restricts the rights guaranteed by Arts. 14 and 16 of the Constitution. The submission that employment exchanges do not reach everywhere applies equally to whatever method of advertising vacancies is adopted. Advertisement in the daily Press, for example, is also equally ineffective as it does not reach everyone desiring employment. In the absence of a better method of recruitment, we think that any restriction that employment in Government Department should be through the medium of employ- ment exchanges does not offend Arts. 14 and 16 of the Constitution. (10). Advertisement in the daily Press, for example, is also equally ineffective as it does not reach everyone desiring employment. In the absence of a better method of recruitment, we think that any restriction that employment in Government Department should be through the medium of employ- ment exchanges does not offend Arts. 14 and 16 of the Constitution. (10). The submission of the learned counsel for the petitioner is that the provisions of Section 4(4) of the said Act makes it clear that the employer is under no obligation to receruit any person the rough employment exchange to fill in vacancy merely because the vacancy has been notified under Section 4(1) or Sec- tion 4(2) and that the object of the Act is not to restrict but to enlarge the field of choice so that the employer may choose the best and the most efficient and to provide an opportunity to the worker to have his claim for appointment considered without the worker having to knock at every door for employment. It is stated that the Act does not oblige any employer to employ those persons who have been spon- sored by the employment exchanges, and the government is at liberty to issue instructions to its departments authorising and conforming any constitutional provisional or statute. So far as the judgment of the Apex Court in the case of Union of India vs. N. Hargopal, referred to above, is concerned, ultimately the validity of recruitment through employment exchanges was held proper and it was held that the medium of employment exchanges through which the selection is made does not offend Article 14 of the Constitution of India. (11). The decision given by this Court, though refers to the provisions of Rule 16 of the Rules of 1971, but has not interpreted the words `or in such other manner as may be deemed fit. The use of the said words in Rule 16 gives a wider discretion to the respondents to make the direct recruitment in such manner as may be deemed fit. The selection through employment exchanges falls within this power and cannot be said to be contrary to the rules or violative of Article 309, 14 and 16of the Constitution of India. The use of the said words in Rule 16 gives a wider discretion to the respondents to make the direct recruitment in such manner as may be deemed fit. The selection through employment exchanges falls within this power and cannot be said to be contrary to the rules or violative of Article 309, 14 and 16of the Constitution of India. All the petitioners are already registered with the employ- ment exchanges and the employment exchange is under obligation to send the name in order of their seniority i.e. the date of registration and number of registration. The merit thereafter has to be considered by the respondents. It is not the case of any petitioner that any person so registered his name has not been sponsored and name of junior person has been sponsored. Even if such a dispute exists then they can aways make a representation to the employment exchange as to why a particular person being registered earlier, his name has not been sponsored and this court would not like to interfere in such a disputed question. The question is with regard to the validity of the order dated 2.9.1993 and if the said order is read along with Rule 16 of the Rules of 1971 which provides that the direct recruitment could be made in such other manner as may be deemed fit, then it cannot be said that the requirement of the respondents in getting the names from employment exchanges is in contravention of the provisions of Rule 16. The judgment given by the learned single Judge could have been followed by me in normal course, but I find from the said judgment that the provisions of Rule 16 where a specific power has been given to the respondents to make the direct recruitment in such other manner as may be deemed fit was not taken note of. Similarly though the judgment of the Apex Court in the case of N. Hargopal, was referred, but it escaped attention of the learned Single Judge that the action of the government in making the recruitment of those persons who have been sponsored by the employment ex- changes alone was considered as not violative of Articles 14 and 16 of the Constitution as referred in para 10. Even otherwise, it is a fair procedure of selection if names are sponsored by the employment exchanges. Even otherwise, it is a fair procedure of selection if names are sponsored by the employment exchanges. This procedure eliminates any arbitrariness on the part of the respondents and, therefore, I do not consider that the said notification is in-valid for any reason. (12). The writ petitions, mentioned above, having no force are accordingly dismissed.