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2004 DIGILAW 254 (MAD)

B. Ramasubramanian and another v. The Director of School Education, College Road, Chennai and others

2004-02-20

P.D.DINAKARAN

body2004
ORDER: The petitioner in W.P.No.14001 of 2002 was appointed as Record Clerk and the petitioner in W.P.No.14002 of 2002 was appointed as Junior Assistant in the third respondent school with effect from 16.7.1997 and thereafter, the third respondent management in its letter dated 17.7.1997 sought for approval of the same by the second respondent. But, the second respondent, in the proceedings dated 15.6.1998 refused to approve the appointment of the petitioners as Record Clerk and Junior Assistant respectively on the ground that the appointment of the petitioners was made without proper sponsor by the concerned Employment Exchange. Hence, the petitioners have filed these writ petitions seeking writ of certiorarified mandamus to call for the entire records pertaining to the impugned proceedings of the second respondent in O.Mu.No.4235/A3/98 dated 15.6.1998, quash the said proceedings of the second respondent dated 15.6.1998 and consequently to direct the second respondent to approve the appointment of the petitioners as Record Clerk and Junior Assistant respectively made by the third respondent school with all service benefits, viz., continuity of service, back wages perquisites etc. 2. Mr.D.Rajendran, learned counsel appearing for the petitioners, contends that the third respondent-school, in fact, requested for the list of eligible candidates for filling up the said posts from the District Employment Exchange, Virudhunagar, on 13.7.1996 and even though the District Employment Exchange, Virudhunagar, by their letter dated 19.7.1996, sponsored a list of eligible candidates, finding none of them suitable, the third respondent again by their letter dated 29.11.1996 requested another list of eligible candidates. Thereafter, according to Mr.D.Rajendran, learned counsel appearing for the petitioners, the District Employment Exchange, Virudhunagar, did not furnish any list of eligible candidates was constrained to advertise the vacancies inviting applications from the qualified candidates for the posts of Record Clerk and Junior Assistant and in response to the same, the petitioner in W.P.No.14001 of 2002 applied for the post of Record Clerk and the petitioner in W.P.No.14002 of 2002 applied for the post of Junior Assistant. After satisfying with their performance, the school committee of the third respondent appointed the petitioner in W.P.No.14001 of 2002 as Record Clerk and the petitioner in W.P.No.14002 of 2002 as Junior Assistant in the third respondent-school. It is, therefore, contended that the refusal to approve the appointment of the petitioners as Record Clerk and Junior Assistant respectively is illegal and arbitrary. 3. It is, therefore, contended that the refusal to approve the appointment of the petitioners as Record Clerk and Junior Assistant respectively is illegal and arbitrary. 3. Mr.K.Mahendran, learned additional Government Pleader appearing for respondents 1 and 2, is not in a position to deny the submission made by the learned counsel for the petitioners that the third respondent-school in fact made a request for the list of eligible candidates from the District Employment Exchange, Virudhunagar, on 13.7.1996 and in response to the same, the said Employment Exchange by letter dated 19.7.1996 sponsored 10 eligible candidates for the posts of Record Clerk and Junior Assistant and finding none of them suitable for the said posts, the third respondent again by their letter dated 29.11.1996 requested a further list of eligible candidates from the said Employment Exchange. 4. Similarly, the contention made on behalf of the petitioners that for want of list of eligible candidates from the said Employment Exchange, the third respondent-school published an advertisement in the Tamil Daily, viz., Dinamalar on 13.7.1997, inviting applications from the qualified persons to fill up the posts of Record Clerk and Junior Assistant and in response to the advertisement, the petitioners applied to the said posts and the school committee of the third respondent selected and appointed them by order dated 16.7.1997. Therefore, the reason that the petitioners were selected and appointed without proper sponsor by the Employment Exchange, in my considered opinion, is untenable in law. 5. The Apex Court in Excise Superintendent v. K.B.N. Visweshwara Rao, (1996)6 S.C.C. 216 , held that: “....It is common knowledge that many a candidate is unable to have the names sponsored, though their names are either registered or are waiting to be registered in the employment exchange, with the result that the choice of selection is restricted to only such of the candidates whose names, come to be sponsored by the employment exchange. Under these circumstances, many a deserving candidate is deprived of the right to be considered for appointment to a post under the State. Better view appears to be that it should be mandatory for the requisitioning authority/establishment to intimate the employment exchange, and employment exchange should sponsor the names of the candidates to the requisitioning departments for selection strictly according to seniority and reservation, as per requisition. Better view appears to be that it should be mandatory for the requisitioning authority/establishment to intimate the employment exchange, and employment exchange should sponsor the names of the candidates to the requisitioning departments for selection strictly according to seniority and reservation, as per requisition. In addition, the appropriate department or undertaking or establishment should call for the names by publication in the newspapers having wider circulations and also display on their office notice boards or announce on radio, television and employment news bulletins; and then consider the cases of all the candidates who have applied. If this procedure is adopted, fair play would be subserved. The equality of opportunity in the matter of employment should be available to all eligible candidates.” 6. Following the ratio laid down by the Apex Court in Excise Superintendent v. K.B.N. Visweshwara Rao, (1996)6 S.C.C. 216 , a Division Bench of this Court in Nehru Memorial College v. The State of Tamil Nadu and others, 2003 Writ L.R. 31, held as follows: “Though it is mandatory on the part of the private educational institutions receiving aid from the Government to notify the vacancies to the respective Employment Exchanges, they are also at liberty to call for names by publication in newspapers having wider circulation, and by display on their office notice board, or announce on ratio, TV and Employment news bulletin.” 7. Hence, applying the ratio laid down by the Apex Court in Excise Superintendent v. K.B.N. Visweshwara Rao, (1996)6 S.C.C. 216 and by this Court in Nehru Memorial College v. The State of Tamil Nadu, 2003 Writ L.R. 31. I am satisfied that the refusal to approve the appointment of the petitioners in in the third respondent-school, merely on the ground that they were not sponsored by the Employment Exchange is arbitrary, unreasonable and violative of Arts.14, 16 and 19(1)(g) of the Constitution of India. 8. For the aforesaid reasons, these writ petitions are allowed with a direction to the second respondent to approve the appointment of the petitioners in the third respondent-school from the date of their appointment, namely, 16.7.1997, sanction the aid and to settle the entire arrears of salary to the petitioners through the third re-spondent, within a period of sixty days from the date of receipt of copy of this order. No costs.