IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No. 4704/2008 Reserved on: 24.8.2010 Decided on: 31.8. 2010 _____________________________________________ Smt. Seema Bisht. …Petitioner. Versus Municipal Corporation and others. …Respondents. _______________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the petitioner : Mr. Shashi Shirshoo, Advocate. For the Respondents: Mr. Harmender Chandel, Advocate for respondent No.1. Mr. Umesh Kanwar, Advocate vice Mr. Shrawan Dogra, Advocate for respondent No.2. Mr. P.M. Negi, Dy. A.G. with Mr. R.P. Singh, Asstt. Advocate General for respondent No.3. Mr. Dilip Sharma, Advocate for respondent No.4. ____________________________________________________ Rajiv Sharma, Judge. Material facts necessary for the adjudication of this petition are that the petitioner is M.A. in Political Science from Himachal Pradesh University and is two years diploma holder in Computer Science, and has also done diploma from Regional Institute of Management and Administration in the year 1995. Respondent 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 No.1 sent a requisition to respondent No.3 for filling up one post of Computer Assistant in the pay scale of Rs. 1500-2700 on 6.8.1997. Respondent No.3 sponsored the names of 20 candidates on 19.8.1997. Thereafter, 20 candidates were interviewed on 23.8.1997. Respondent No.4 was selected/appointed and posted on the same day vide Annexure A-1. 2. Mr. Shashi Shirshoo has vehemently argued that selection of respondent No.4 to the post of Computer Assistant is violative of Articles 14 and 16 of the Constitution of India. He has also contended that it was incumbent upon respondent No.1 that in addition to requisitioning the names from employment exchange, under the provisions of the Employment Exchange (Compulsory Notification of Vacancies) Act, 1959 (hereinafter referred to as ‘the Act’ for brevity sake), names should have also been called for by publication in newspapers, having wide circulation, and display on office notice boards or announcement on radio, television and employment news bulletins. He further contended that respondent No.4 has been selected at the behest of respondent No.2, who at the relevant time was discharging the duties of Mayor of respondent-corporation. 3. Mr. P.M. Negi, learned Deputy Advocate General appearing on behalf of respondent No.3 submits that the District Employment Exchange has received the requisition on 6.8.1997. Mr. Harmender Chandel has strenuously argued that the selection of respondent No.4 is in accordance with law. Mr. Umesh Kanwar 3 appearing vice Mr. Shrawan Dogra has submitted that respondent No.2 was not involved in the selection process. Mr. Dilip Sharma appearing on behalf of respondent No.4 has vehemently argued that the name of his client was sponsored by the Employment Exchange and consequently her suitability was adjudged by a duly constituted Selection Committee for the post of Computer Assistant and she also joined her duties vide Annexure A-1. 4. I have heard the learned counsel for the parties and have gone through the pleadings carefully. 5. Respondent-corporation has been incorporated under Clause 4 of the Himachal Pradesh Municipal Corporation Act, 1994. It is a body corporate. 6. One post of Computer Assistant was notified by respondent No.1 vide requisition dated 6.8.1997. Consequently, respondent No.3 submitted a list of 20 eligible candidates on 19.8.1997 to respondent No.1 in accordance with single chance rotation norm. The names were despatched by respondent No.3 to respondent No.1 on 19.8.1997. In sequel thereto, interviews were held on 23.8.1997. Respondent No.4 was found suitable by the Selection Committee and on the same day, she was issued appointment letter to enable her to join her duties. Petitioner has got his name registered with the Employment Exchange on 14.3.1993. Respondent No.4 has got her name registered, as per the contents of reply, on 14.12.1992. Respondent No.3 had sent 20 names registered upto 9.3.1995. Petitioner has also been sent 4 a letter by the Assistant Commissioner to get her name sponsored from the Employment Exchange on 18.8.1997. 7. Respondent-corporation is a State within the meaning of Article 12 of the Constitution of India. There is a great substance and merit in the submission of Mr. Shashi Shirshoo that in addition to requisitioning the names from employment exchange, names should also have been called for by publication in newspapers, having wide circulation, and display on office notice boards or announcement on radio, television and employment news bulletins. 8. Their Lordships of the Hon’ble Supreme Court in Union of India and others versus N. Hargopal and others, (1987) 3 SCC 308 have held that the employers are not bound to appoint only those persons, who have been sponsored by the Employment Exchanges. Their Lordships have further held 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. Their Lordships have further held that the Government is at liberty to issue instructions to its own departments, organizations provided the instructions do not contravene any constitutional provision or any statute. These instructions cannot bind other bodies which are created by statute and which functions under the authority of statute. Their Lordships have held as under: 5 “4. It is evident that there is no provision in the Act which obliges an employer to make appointments through the agency of the employment exchanges. Far from it, Section 4(4) of the Act, on the other hand, makes it explicitly clear that the employer is under no obligation to recruit any person through the employment exchanges to fill in a vacancy merely because that vacancy has been notified under S. 4(1) or S. 4(2). In the face of S. 4(4), we consider it utterly futile for the learned Additional Solicitor General to argue that the Act imposes any obligation on the employers apart from notifying the vacancies to the employment exchanges. The learned Additional Solicitor General invited our attention to the speech of the Minister of Labour and Employment and Planning (Shri Nanda) made at the time of the introduction of the Employment Exchanges (Compulsory Notification of Vacancies) Bill. Far from being of any assistance to the learned Additional Solicitor General, the speech appears to be against his submission. In his speech, the Minister quoted from the report of the Training and Employment Services Organisation Committee and observed that the recommendation of the Committee offered a full explanation of the provisions of the Bill. The recommendation of the Committee which he quoted was, "Though we have not, for the present, recommended compulsion on private employers to recruit through the employment exchanges, we recommend that they be required on a compulsory basis to notify to the exchanges all vacancies, other than vacancies for unskilled categories, vacancies of very temporary duration and vacancies proposed to be filled through promotion." The Minister further said, "The main thing is that an obligation is being placed that after this legislation becomes operative, from that date, the employer in every establishment in the public 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 so far as the private sector is concerned, there is this further qualification that the Government concern may specify by 6 notification that the employer in every establishment in private sector or every establishment pertaining to any class or category of establishments in private sectors shall, before filling up any vacancy in any employment in that establishment, notify that vacancy to such employment exchanges as may be prescribed. This is the kernel of this provision. This is the main object, that is, an obligation placed on the employer to notify the vacancies that may occur in their establishment before filling these vacancies." The Minister was conscious that there was a likelihood of the Bill being misunderstood as compelling the employers to make appointments through the employment exchanges only. He clarified the position saying, "The misunderstanding is as if this Bill gives power to the Government to compel the employers to recruit only such persons as are submitted by the employment exchanges. That is not so. This compulsion extends only to notification of vacancies. Naturally the employer has to consider the names which are submitted by the employment exchanges but there is no compulsion that they must restrict to the choice only to the list that is submitted to them. Of course, there is also the objection from the other side that it may not go far enough. We believe that even this will make things very much better. In any case, when the Committee reported, they also suggested this much in advance. At present, they said, we should have only compulsory notification, but not compel the employers to recruit only out of the list that is sent by the employment exchanges. 6. It is, therefore, clear 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 provide an opportunity to the worker to have his claim for appointment considered without the worker having to knock at every door for employment. We are, therefore, firmly of the view that the Act does not oblige any employer to employ those persons only who have been sponsored by the employment exchanges. 7 9. It is clear that it is the desire of the Government of India that all Government Departments, Government Organisation and statutory bodies should adhere to the rule that not merely vacancies should be notified to the employment exchanges, but the vacancies should also be filled by candidates sponsored by the employment exchanges. 8. It was only when no suitable candidates were available, then other sources of recruitment were to be considered. While the Government is at perfect liberty to issue instructions to its own departments and organisations provided the instructions do not contravene any constitutional provision or any statute, these instructions cannot bind other bodies which are created by statute and which function under the authority of statute. In the absence of any statutory prescription the statutory authority may however adopt and follow such instructions if it thinks fit. Otherwise, the Government may not compel statutory bodies to make appointments of persons from among candidates sponsored by employment exchanges only. The question, of course, does not arise in the case of private employers which cannot be so compelled by any instructions issued by the Government.” 9. Their Lordships of the Hon’ble Supreme Court in Excise Superintendent Malkapatnam Krishna District A.P. versus K.B.N. Visweshwara Rao and others, (1996) 6 SCC 216 have held that restricting the selection only to candidates sponsored by Employment Exchange is not proper. Their Lordships have further held that in addition to requisitioning the names from employment exchange, names should also be called for by publication in newspapers, having wide circulation, and display on office notice boards or announcement on radio, television and employment news bulletins. Their Lordships have held as under: 8 “6. Having regard to the respective contentions, we are of the view that contention of the respondents is more acceptable which would be consistent with the principles of fair play, justice and equal opportunity. It is common knowledge that many a candidates are unable to have the manes 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 are 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 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 manes by publication in the newspapers having wider circulation 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 would be available to all eligible candidates.” 10. Their Lordships of the Hon’ble Supreme Court in Nagendra Chandra and others versus State of Jharkhand and others, (2008) 1 SCC 798 have held that where rules prescribe advertising of vacancies in newspapers and also to notify them to the employment exchange and the appointment is made contrary to this requirement, such appointments were not only in fraction of rules but also in violation of Articles 14 and 16 of the Constitution of India, which rendered the appointments illegal. Their Lordships have further upheld the decision of the competent authority to 9 dispense with appellants service even after 14 years service. Their Lordships have held as under: “6. Rule 663 of the Bihar Police Manual runs thus:- "Selection of recruits.- (a) Strong, healthy, young men between the ages of 19 and 27 years and who have passed secondary (i.e., Matriculation) examination shall be selected as recruits, as far as possible. The standard of physical tests shall be same as given in Appendix 38, clause 9 for Sub-Inspectors. For scheduled castes and tribes, the upper age-limit is up to 32 years and educational qualification can be reduced to middle pass if matriculates are not available. The standards of height and chest measurements are given below. These are the minima and Superintendents should endeavour to get men of higher standard:- (i) for general - height 163 centimetres and chest 80 centimetres. (ii) for scheduled caste and tribe - height 158 centimetres and chest 78 centimetres. Note.-In measuring the chest, the measuring tape must be applied evenly but not tightly, its upper edge touching the lower border of the shoulder blades, and its lower edge passing just above the nipples, the arms hanging by the sides. The standard is the minimum measurement, with the chest fully deflated. Just before the measurement is taken the candidate shall be made to count up to thirty, without taking breath and without hurrying. (iii) There is no physical standard for Gurkhas, who are residents of India and men of the best physique obtainable and at least literate shall be enlisted. N.B. - Nepalese subjects cannot be enlisted. (b) Recruits shall be measured by the reserve inspector in the Superintendent's presence at the time of enlistment. (c) The Selection Board is not precluded from selecting men over 27 years of age or, for special reasons, 10 men beneath the standard of measurement, but it shall do so only on good grounds. Before enlistment the Deputy Inspector- General can give relaxation in height and chest by 2.5 cms. only. [See Cl. 9 of Appendix 2, Part 2). (d) The recruitment shall be made twice a year in such a way that recruits are ready to go to Constables Training School before the start of the session. There shall be no necessity for training in district headquarters. The Superintendent shall publish notice of selection of candidates in newspapers giving the exact number of vacancies and also advertise through employment exchange. He shall endeavour that selection is completed and results are laid before the candidates the same day or on the following day so that they are not made to stay unnecessarily. No waiting list of candidates beyond the number advertised except for few extramen for possible unfitness in medical test is to be kept." From a bare perusal of the aforesaid Rule it would be clear that the requirement of the Rule is to notify the vacancies in newspapers and to advertise the same through employment exchange, which, undisputedly, has not been done in the present case as here the vacancies have been notified through notice displayed on the notice board. 7. In the case of Ashwani Kumar & Ors. vs. State of Bihar & Ors. (1996) 7 SCC 577, large number of appointments were made by Dr. Mallick, Deputy Director, Health Department, Government of Bihar, by notifying the vacancies on the notice board. When the illegality was brought to the notice of the Government, the appointments were cancelled which necessitated filing of writ petitions before the High Court which were dismissed and when the matter was brought to this Court, the cases were placed before a 2-Judge Bench consisting of K.Ramaswamy and B.L. Hansaria, JJ. There was difference of opinion between the two learned Judges. K.Ramaswamy, J. (as His Lordship then was), held that the vacancies having been put up on the notice board, there was flagrant breach of Articles 14 11 and 16 of the Constitution. Learned Judge observed in paragraph 26 at page 594 thus:- "Admittedly, except putting up the vacancies on the notice board of the Tuberculosis Centre at Patna, no advertisement inviting applications from the open market was made nor were the names called from the employment exchange...The procedure adopted by Mallick in either appointing or directing to appoint persons who had applied for appointment pursuant to the notification of vacancies put up on the notice board was stage-managed by him and is in flagrant breach of Articles 14 and 16(1) of the Constitution." Hansaria,J., dissented from the aforesaid view expressed by Ramaswamy,J., and, therefore, the matter was placed before a 3-Judge Bench - Ashwani Kumar & Ors. vs. State of Bihar & Ors. [(1997) 2 SCC 1] - in which order of the High Court was upheld and directions were given, inter alia, for making appointments by publishing notice in all the newspapers having circulation in the State of Bihar inviting applications for filling up the vacancies. 8. In the case of National Fertilizers Ltd. & Ors. vs. Somvir Singh, (2006) 5 SCC 493, this Court was dealing with the case of recruitment under Rule 1.5 of Recruitment and Promotion Rules which required "direct recruitment by advertisement". The appointments were made without advertisement by a public sector undertaking which is State within the meaning of Article 12 of the Constitution. Those appointed filed a writ petition before the High Court for regularization of their services which was allowed and their services were regularized. Challenging the said order, when the matter was brought to this Court, the orders of regularization were quashed on the ground that the initial appointments were nullities in view of the fact that the same were in infraction of the Rules and violative of Articles 14 and 16 of the Constitution. The Court observed in paragraph 13 at page 497 thus:- "… Admittedly, no advertisement was issued in a newspaper nor was the employment exchange notified as 12 regards existence of vacancies. It is now trite law that "State" within the meaning of Article 12 of the Constitution is bound to comply with the constitutional requirements as adumbrated in Articles 14 and 16 thereof. When the Recruitment Rules are made, the employer would be bound to comply with the same. Any appointment in violation of such Rules would render them as nullities." 9. In view of the foregoing discussion, we have no option but to hold that if an appointment is made in infraction of the recruitment rules, the same would be violative of Articles 14 and 16 of the Constitution and being nullity would be liable to be cancelled. In the present case, as the vacancies were not advertised in the newspapers, the appointments made were not only in infraction of Rule 663(d) of the Bihar Police Manual but also violative of Articles 14 and 16 of the Constitution, which rendered the appointments of the appellants as illegal; as such the competent authority was quite justified in terminating their services and the High Court, by the impugned order, was quite justified in upholding the same.” 11. Their Lordships of the Hon’ble Supreme Court in National Fertilizers Limited and others versus Somvir Singh (2006) 5 SCC 493 have held that anybody which falls within definition of “State” under Article 12 is bound to comply with the constitutional requirements as enumerated in Articles 14 and 16 of the Constitution of India. Their Lordships have held as under: “13. The Respondents herein were appointed only on applications made by them. Admittedly, no advertisement was issued in a newspaper nor the employment exchange was notified as regard existence of vacancies. It is now trite law that a 'State' within the meaning of Article 12 of the Constitution of India is bound to comply with the constitutional requirements as adumbrated in Articles 14 and 16 thereof. When Recruitment Rules are made, the 13 employer would be bound to comply with the same. Any appointment in violation of such Rules would render them as nullities. It is also well-settled that no recruitment should be permitted to be made through backdoor.” 12. The Apex Court in State of Bihar versus Upendra Naryan Singh, (2009) 5 SCC 65 has held that the equality clause enshrined in Article 16 mandates that every appointment to public posts or office should be made by open advertisement so as to enable all eligible persons to complete for selection on merit. The Apex Court has held as under: 25. The equality clause enshrined in Article 16 mandates that every appointment to public posts or office should be made by open advertisement so as to enable all eligible persons to compete for selection on merit - Umesh Kumar Nagpal v. State of Haryana and others [(1994) 4 SCC 138], Union Public Service Commission v. Girish Jayanti Lal Vaghela [(2006) 2 SCC 482], State of Manipur and others v. Y. Token Singh and others [(2007) 5 SCC 65] and Commissioner, Municipal Corporation, Hyderabad and others v. P. Mary Manoranjani and another [(2008) 2 SCC 758]. Although, the Courts have carved out some exceptions to this rule, for example, compassionate appointment of the dependent of deceased employees, for the purpose of this case it is not necessary to elaborate that aspect.” 13. In a recent judgment in Union of India and others versus Miss Pritilata Nanda, 2010 (7) Scale 269, their Lordships of the Hon’ble Supreme Court have again reiterated that the requirement of notifying the vacancies to the Employment Exchanges is embodied in the Act. Their Lordships of the Hon’ble Supreme Court by applying the ratio of N. Hargopal’s and K.B.N. 14 Visweshwara Rao cases have held that the concerned authorities of the South Eastern Railway committed grave illegality by denying appointment to the respondent only on the ground that she did not get her name sponsored by an employment exchange. Their Lordships have held as under: “10. By an order dated 3.5.2001, the Tribunal dismissed O.A. No.198/1997 by observing that respondent's candidature was not sponsored by any employment exchange. The Tribunal distinguished the judgments of this Court in Excise Superintendent, Malkapatnam, Krishna District, A.P. v. K.B.N. Visweshwara Rao and others (1996) 6 SCC 216 and of the Orissa High Court in Susanta Kumar Kar v. Registrar (Judicial), Orissa High Court, Cuttack, 83(1997) CLT 335 by making the following observations: "In support of his contention the learned counsel for the petitioner has relied on the decision of the Hon'ble High Court of Orissa in the case of Susanta Kumar Kar vs. Registrar (Judicial), Orissa High Court, Cuttack, 83(1997) CLT 335. In that case, going by the decision of the Hon'ble Supreme Court ion the case of Excise Superintendent, Malkapatnam, Krishna District, Andhra Pradesh vs. KBN Viweshwara Rao and others,19965 (7) SCC 201, the Hon'ble High Court have held that for the post of Junior Assistant in the High Court of Orissa, compulsory sponsoring arrangement by employment exchange, if insisted upon, affects interests of those candidates who have not been able to register their names or are awaiting to be so registered, and therefore, the opposite parties were directed to consider the cases of those candidates who have applied directly to the High Court. IN the instant case,