Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE BASANT BALAJI WEDNESDAY, THE 27TH DAY OF MARCH 2024 / 7TH CHAITHRA, 1946 PETITIONERS:
1 UMMAR AGED 39 YEARS S/O MUHAMMAD, MACHAMBULLI (H), KIZHAYUR P.O, PATTAMBI, PALAKKAD DISTRICT, PIN - 679303 2 MUJEEB RAHMAN AGED 49 YEARS S/O ABDUL RAHMAN, KOTTILINGAL (H), KIZHAYUR P.O, PATTAMBI, PALAKKAD DISTRICT, PIN - 679303 3 MOHAMMED RASHEED K.P AGED 35 YEARS S/O HAMZA, KOLOTH PARAMBIL (H), MELEPATTAMBI P.O, PATTAMBI, PALAKKAD DISTRICT, PIN - 679306 4 MUHAMMED HASHIR M AGED 28 YEARS S/O ALI, PULLANIYIL (H), PATTAMBI, PATTAMBI P.O, PALAKKAD DISTRICT, PIN - 679303 5 SUNDARARAJAN M., AGED 48 YEARS S/O CHAMI, MADAENMARIL (H), KIZHAYOOR P.O, PATTAMBI, PALAKKAD DISTRICT, PIN - 679303 6 ABU P. AGED 56 YEARS S/O KADAR, PARAMBIL (H), KIZHAYOOR P.O, PATTAMBI, PALAKKAD DISTRICT, PIN - 679303 7 ASHKAR K AGED 36 YEARS S/O ABDUL NASEER, ELATTUPARAMBIL (H), LIBERTY STREET, PATTAMBI, PATTAMBI P.O, PALAKKAD DISTRICT, PIN - 679303 8 RADHAKRISHNAN K AGED 61 YEARS S/O KRISHNA PRUMBRA NAIR, KANDAPATHODI (H), KIZHAYUR P.O, PATTAMBI, PALAKKAD DISTRICT, PIN - 679303 9 SURESH BABU C. AGED 49 YEARS S/O NARAYANAN NAIR, CHEMPADATHIL (H), KODALUR P.O, PATTAMBI, PALAKKAD DISTRICT, PIN - 679303 10 SHIVANUNNI AGED 46 YEARS S/O KOTHA C.,CHATHINMARIL (H), KIZHAYUR P.O, PATTAMBI, PALAKKAD DISTRICT, PIN - 679303
11 MANIKANDAN AGED 44 YEARS S/O MANI, CHEROOLIPARAMBIL (H), PATTAMBI,PATTAMBI P.O, PALAKKAD DISTRICT, PIN - 679303 12 ALI N AGED 39 YEARS S/O KHALID, NADUVALAPPIL (H), SANKARAMANGALAM P.O,PATTAMBI, PALAKKAD DISTRICT, PIN - 679303 13 FAREEDA T.P. AGED 34 YEARS W/O AJEESH BABU, THAVALAMPARAMBIL (H), UMIKUNNU P.O, PATTAMBI,PALAKKAD DISTRICT, PIN - 679303 14 SARITHA AGED 41 YEARS D/O VELAYUDHAN, PERALI KALLIKKAD (H), SANKARAMANGALAM P.O, PATTAMBI, PALAKKAD DISTRICT, PIN - 679303 15 VILASINI AGED 47 YEARS D/O LATE. CHAMI, KALLIVALAPPIL (H), AMAYOOR P.O, PATTAMBI, PALAKKAD DISTRICT, PIN - 679303 16 SUBHEESH K AGED 36 YEARS S/O BALAN, KURUPPANMARIL (H), ALIKKAPARAMBU, PERUMUDIYOOR P.O, MUTHUTHALA, PALAKKAD DISTRICT, PIN - 17 KRISHNANKUTTY M.P AGED 44 YEARS S/O KOTHA M.P, MANAVAZHI PARAMBIL (H), PATTAMBI, PATTAMBI P.O, PALAKKAD DISTRICT, PIN - 679303 18 ABDUL NIZAR V AGED 39 YEARS S/O V. ABDULLAKUTTY, VATTOLIPULAKOOTTATHIL (H), COLLEGE STREET, MELEPATTAMBI P.O, PATTAMBI, PALAKKAD DISTRICT, PIN - 679306 19 JITHESH V.K AGED 40 YEARS S/O KESAVAN, AGED 40 YEARS, VATTAKKAVUPARAMBIL (H), PANTHAKKALPARAMBU P.O, PATTAMBI, PALAKKAD DISTRICT, PIN - 679303 20 MUHAMMED SABIR AGED 37 YEARS S/O MUHAMMED KUTTY, MELANGADI (H), PATTAMBI, PATTAMBI P.O, PALAKKAD DISTRICT, PIN - 679303
21 NAJUMUNNESA K. T AGED 36 YEARS W/O JAFAR V.P., VETTATHU PARAMBIL (H), SANKARAMANGALAM P.O, PATTAMBI, PALAKKAD DISTRICT, PIN - 679303 22 AMEER ALI P AGED 24 YEARS S/O ABDUL RAZAK, PULIKKAL (H), KIZHAYOOR P.O, PATTAMBI, PALAKKAD DISTRICT, PIN - 679303 BY ADVS. MANU RAMACHANDRAN M.KIRANLAL R.RAJESH (VARKALA) T.S.SARATH SAMEER M NAIR SAILAKSHMI MENON JOTHISHA K.A. SHIFANA M. RESPONDENTS:
1 THE STATE OF KERALA REPRESENTED BY CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001 2 THE SECRETARY TO GOVERNMENT DEPARTMENT OF LOCAL SELF-GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001 3 THE MUNICIPALITY OF PATTAMBI OFFICE OF MUNICIPALITY OF PATTAMBI, PATTAMBI P.O, PALAKKAD REPRESENTED BY ITS SECRETARY, PIN - 679303 4 THE SECRETARY THE MUNICIPALITY OF PATTAMBI, OFFICE OF MUNICIPALITY OF PATTAMBI, PATTAMBI P.O, PALAKKAD, PIN - 679303 5 THE OMBDUSMAN FOR LOCAL SELF GOVERNMENT INSTITUTIONS KERALA, SAPHALYAM COMPLEX, 4TH FLOOR, TRIDA BUILDING, UNIVERSITY P.O., THIRUVANANTHAPURAM, PIN - 695034 6 HUSSAN K.P AGED 46 YEARS S/O KUTTYALLI,KULUKKAMPARA (H), TRIKKADERI P.O,OTTAPALAM, PALAKKAD DISTRICT, PIN - 679502 7 SHOUKATHALI M AGED 46 YEARS S/O KUNHIMUHAMMED, MOOCHIKOODAN (H),
EDAPPALAM P.O, PALAKKAD DISTRICT, PIN - 679502 8 SAMEER M.T AGED 43 YEARS S/O MUHAMMED KUTTY, MOOTHARATHODI (H), MAD, RAHMATH COLONY, VADANAMKURISSI P.O, PALAKKAD DISTRICT, PIN - 9 KRISHNANKUTTY M.K AGED 45 YEARS S/O SANKUNNI, NAMBRATH HOUSE, VADANAMKURUSSI P.O, PALAKKAD DISTRICT, PIN - 679124 10 JAYAGOVINDAN M.R AGED 40 YEARS S/O RAMANKUTY, PALAYIL (H), CHERUMUNDASSERY P.O, PALAKKAD DISTRICT, PIN - 679513 11 PRAMOD KUMAR V AGED 46 YEARS S/O GOPINATHAN NAIR, NAVANEETH VIHAR (H), NEDUNGOTTOOR, SHORANUR PALAKKAD DISTRICT, PIN - 679123 12 VASANTHAKUMARI P AGED 47 YEARS C/O MADAMBI P., PARAMBIL VEEDU, KOZHIKOTTIRI P.O, PATTAMBI, PALAKKAD DISTRICT, PIN - 679303 13 VIJIL V AGED 27 YEARS S/O VIJAYAN K.., PUNNAKKAD (H), VARATTIPALLIYAL, ANAKKARA P.O, PALAKKAD DISTRICT, PIN - 679553 14 GOPALAKRISHNAN K AGED 48 YEARS S/O ARUMUGHAN, KARIYANGATTUKUZHY (H), KADAMBUR P.O, OTTAPALAM, PALAKKAD DISTRICT, PIN - 679502 15 SUJITHAKUMARI T AGED 49 YEARS C/O GANGADARAN, THAYIL (H), KANNIYAMPURAM P.O, PALAKKAD DISTRICT, PIN - 679104 16 BABU C.P AGED 45 YEARS S/O VELAYUDHAN C. P., CHEERUKUZHIYIL (H), PALLIPPURAM P.O, PATTAMBI , PALAKKAD DISTRICT, PIN - 679305 17 AZEEZ K AGED 46 YEARS S/O UNNEENKUTTY K., KALLIGAL VEEDU, PULASSERY P.O, PATTAMBI, PALAKKAD DISTRICT, PIN - 679310
18 PREMADASAN P. AGED 43 YEARS C/O KUNHUNNI, PURANDIKKAL (H), PILAKKATTIRI, NAGALASSERI P.O, PALAKKAD DISTRICT, PIN - 679533 19 RAJESH V., AGED 41 YEARS S/O RAMAKRISHNAN B., VADAKUMPATTU THODI (H), KALLIPADAM, SHORNUR, PALAKKAD DISTRICT, PIN -679122, PIN - -4 20 CHINTHAMANI N, AGED 43 YEARS C/O KUNHIRAMAN N., NETTATH (H), THIRUVAZHIYODE, KALLUVAZHI P.O, PALAKKAD DISTRICT, PIN -679514 21 PREETHI P. N, AGED 46 YEARS C/O KRISHNANKUTTY, OLANCHERY VALAPPIL THEKKETHIL VEEDU, THEKKEVAVANNUR P.O, KOOTTANAD VIA, PALAKKAD DISTRICT, PIN -679533 22 RAMANI P AGED 49 YEARS C/O KARUPPAN, PULLATTUPARAMBIL (H), KANAYAM P.O, PALAKKAD DISTRICT, PIN - 679503 23 VINOD M. P AGED 44 YEARS C/O SUKUMARAN, MADATHIPARAMBIL (H), CHERUPULACHERY P.O, PALAKKAD DISTRICT-, PIN - 679503 24 SUMATHI K. AGED 50 YEARS C/O MUNDAN, KUYILAM KUNNATH (H), CHURAKODE P.O, PALAKKAD DISTRICT, PIN - 679336 25 RAKESH M.V. AGED 40 YEARS S/O VELLA, KANJIRAPUZHA IRRIGATION QUARTERS, KANNIAMPURAM P.O, OTTAPALAM, PALAKKAD DISTRICT, PIN - 26 KUNHUMOIDEEN P. AGED 33 YEARS S/O AYAMUTTI, PARAKKAL (H), CHERUMUNDASSERY P.O, PALAKKAD DISTRICT, PIN - 679512 27 SHIBU K AGED 33 YEARS S/O KRISHNAN KUTTY, VADAKKEKKARA (H), CHOLAKKULAM P.O, SHORNUR, PALAKKAD DISTRICT, PIN - 679121
28 ANCY K. GEORGE AGED 39 YEARS W/O SUNEESH JOHN V., VETTUVELIL (H), SRIKRISHNAPURAM P.O, PALAKKAD DISTRICT, PIN - 679513 BY ADVS. ADVOCATE GENERAL OFFICE KERALA Haroon Rasheed A J.R.PREM NAVAZ J.R SREEHARI R SUMEEN S.(K/000187/2012) HAMZA A.V.(K/1588/2022) VIGNESH S.(K/3697/2022) GP SRI. TONY AUGUSTINE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT
(Dated this the 27th day of March, 2024) The petitioners are DLR workers under the 3 rd respondent’s-Municipality. They have approached this court for the following reliefs: “1) To call for records leading to Exhibit Ext.P7
order and to quash the same by issuing a writ
of Certiorari or any other appropriate writ or order, in the interest of justice; 2) To call for records leading to Exhibit P2 and Exhibit P3 and to quash the same by issuing a writ of Certiorari or any other appropriate writ or order, in the interest of justice; 3) To issue a writ of mandamus or any appropriate writ or direction, directing the respondents no.3 & 4 to conduct fresh selection process towards the 23 sanctioned posts of contingent sanitation workers in tune with the directions contained in Excise Superintendent vs K.B.N Visweswara Rao (1996) 6 SSC 216, expeditiously within a time limit fixed by this Hon’ble Court; 4) Declare that the selection to the contingent sanitation workers in the 3rd respondent
Municipality without following the directions in Excise Superintendent vs K.B.N Visweswara Rao
(1996) 6 SSC 216 is illegal and unsustainable
being violative of Articles 14 and 16 of the Constitution of India; 5) Declare that the Exhibit P4 and Exhibit P5 Government orders are quashed to the extent of limiting selection and appointment of cleaning/sanitation workers in contingent service of Local Self Government Institutions to candidates sponsored by Employment Exchange alone being violative of directions in Excise Superintendent vs K.B.N Visweswara Rao (1996) 6 SSC 216”
2. The 3rd and 4th respondents called for a list of eligible
candidates from the Employment Exchange to fill up 23 vacancies of sanitation workers in the 3 rd respondent. Interviews were conducted on 12/04/2023, 13/04/2023, respondents started the appointment process on 03/10/2023 from the shortlisted 23 candidates in Ext. P1 list. 8 candidates out of 23 were appointed temporarily through an order dated 03/10/2023 produced as Ext.P3 following the Government Order G.O(MS) 14/82/LBR dated
3. The case of the petitioners is that the process of selection from among the candidates sponsored by the Employment Exchange is illegal and violative of the
judgment of the Apex Court in Excise Superintendent v.
K.B.N Visweswara Rao (1996) 6 SCC 216 and therefore liable to be interfered with. The 6th respondent had approached the 5th respondent - Ombudsman for a direction to the 3rd and 4th respondents to appoint the Employment Exchange hands to the vacancies available with the 3 rd respondent- Municipality in the post of contingent workers. The 5th respondent-Ombudsman passed an order on persons who were included in the list sent by the Employment Exchange temporarily in the post where the petitioners occupied. The case of the petitioners is that Section 4 of the Employment Exchange (Compulsory Notification of Vacancies) Act, 1959 does not mandate that only Employment Exchange hands need be considered for appointment.
4. A counter affidavit is filed on behalf of
respondents 7 to 12, 14, and 15 contending that the writ petition is filed on an experimental basis to deny the rights of the 23 shortlisted candidates. Out of the total 23 shortlisted, respondents No.7 to 12, 14 and 15 are already appointed as contingency/sanitary workers in terms of Ext.R7(a) order of the Secretary of the Municipality. On the
basis of R7(a), the 4th respondent has issued another order
on 03/10/2023 as Ext.P3 whereby respondents 7 to 12, 14 and 15 were appointed as contingent/sanitation workers with the effect from 03/10/2023 for a period of 179 days and thereafter to be a permanent contingent/ sanitation worker subject to the approval of the Municipal Council. There is no legal grievance to be redressed against these respondents and no reliefs can be granted in favour of the petitioners. Hence, prayed for the dismissal of the petition.
5. The 4th respondent has also filed a counter
affidavit in which it is stated that the Pattambi Grama Panchayat was upgraded to a Municipality in 2015. However, the staff pattern of the Municipality has not been revised since then and it continues the same as the Panchayat. Ext.R4(a) was produced along with the counter affidavit showing that the Government has passed a circular No.A4/82/LA and SWD dated 27/01/1982, directing that appointment shall only be through Employment Exchange. The Municipality reported the 23 vacancies to the Employment Exchange Office, Shornur, and list was provided containing 197 candidates for consideration. Based on the interview and physical test conducted by the Municipality, 23 candidates were shortlisted as Ext.P1. Considering the financial condition only 8 were given appointments till date. The petitioners have not registered the name with the Employment Exchange and if they had done so they would have also got an opportunity to participate in the interview process. Since the appointments are made through Employment Exchange there are no requirements for any additional publication regarding the interview. The Secretary is bound to follow the direction issued by the Ombudsman due to the interim order passed by this Court on 22/01/2024 the Municipality is not able to make any appointments other than the 8 who were already been appointed.
6. A statement is filed by the 2nd respondent also
wherein it was contended that the appointment of contingent staff in Municipality has to be done by the concerned Municipal Council in terms of G.O.(MS) dated 29.03.2001. The Hon’ble Apex Court the judgment in Umadevi v. State of Karnataka (AIR 2016 SC 1866) had remarked that the persons who are working in daily wages or on a contract basis cannot demand for permanent posting as it is against Article 14 and 16 of the Constitution of India. Since the petitioners are all DLR workers not selected through Employment Exchange they are not entitled to be selected for the post of sanitation workers in Pattambi Municipality.
7. The petitioners were appointed as DLR workers
on daily wages. They do not have a case that they were appointed through a selection process. When 23 permanent vacancies occurred in the Municipality the same was reported to the Employment Exchange pursuant to Exts.P4 and P5 orders issued by the Government as they are bound by it. The Employment Exchange has forwarded a list of 197 candidates and by conducting an interview and a physical test the Municipality brought out Ext.P1 list containing 23 candidates in tune with communal rotation to the post of sanitation workers in the Municipality. The case projected by the petitioners is that going by Section 4 of the Employment Exchange (Compulsory Notification of Vacancies) Act, 1959 (for Short ‘the Act’), the Municipality ought to have issued a public notification in addition to the request sent by Employment Exchange and an open selection ought to have been done. If such a notification were published, the petitioners, who have been working as DLR workers on daily wages for so many years would have got a chance to appear for the interview and the selection would have been a transparent one. Merely because the petitioners who were not registered with the Employment Exchange do not disentitle them from getting employment to the Municipalities under Section 4 sub clause -4 of the said Act. Clause iv reads as follows :-
“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 establishments 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 sub-section (1) or sub-section (2) shall be notified to the employment exchanges and the particulars of employments 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 vacancy merely because that vacancy has been notified under any of those sub-sections.”
8. The learned counsel for the petitioners Sri.Manu
Ramachandran relies on sub-clause 4 and argues that the employer ought to have been issued a notification calling for the applications for the post of contingent workers. He relies on the judgment of the Apex Court in Excise Superintendent Malkapatnam (supra) and submits that the Apex Court had considered this issue and has ordered thus; paragraphs 5 and 6 of the judgment reads as follows :-
“5. Shri Ram Kumar, learned counsel for the state, contended that in view of the above decision, the direction issued by the Tribunal is not in accordance with law. On the other hand, S/Shri Shanti Swarup and L.R.Rao, learned counsel appearing for the respondents, contended that the restriction of the field of choice to the selected
candidates sponsored through the medium of employment exchange prohibits the right to be considered for employment to a post under the State and many people cannot reach the employment exchange to get their names sponsored and the employment exchanges are not adopting fair means and procedure to send the names strictly according to seniority in their record. So, the better course would be to adopt both the mediums, viz., of employment exchange and publication in the newspaper as that would subserve the public purpose better.
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 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 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 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 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.”
9. He also relied on the judgment in Union of India and Others v. Pritilata Nanda [2010 KHC 4489] relying on paragraphs 12 of the judgment which reads as follows :-
“12. In our opinion, there is no merit in the arguments of the learned Additional Solicitor General. In the first place, we consider it necessary to observe that the condition embodied in the advertisement that the candidate should get his/her name sponsored by any special
employment exchange or any ordinary employment exchange cannot be equated with a mandatory provision incorporated in a statute, the violation of which may visit the concerned person with penal consequence. The requirement of notifying the vacancies to the employment exchange is embodied in the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 (for short, `the 1959 Act'), but there is nothing in the Act which obligates the employer to appoint only those who are sponsored by the employment exchange. S.4 of the 1959 Act, which provides for notification of vacancies to employment exchanges reads as under: "4(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 establishments 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 sub-section (1) or sub-section (2) shall be notified of the employment exchanges and the particulars of employments 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 exchanges to fill any vacancy merely because that vacancy has been notified under any of those sub-sections.” A reading of the plain language of S.4 makes it clear that even though the employer is required to notify the vacancies to the employment exchanges, it is not obliged to recruit only those who are sponsored by the employment exchanges. In Union of India v. N. Hargopal(1987) 3 SCC 308, this Court examined the scheme of the 1959 Act and observed: "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, S.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." xxxxxx xxxxxx xxxxx "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 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. 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." (emphasis supplied) In K.B.N.Visweshwara Rao’s case, a three-Judge Bench of this Court considered a similar question, referred to an earlier judgment in Union of India v. N.Hargopal (supra) and observed: "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. In addition, the appropriate department or undertaking or establishment should call for the names 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." By applying the ratio of the above noted judgments to the case in hand, we hold 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.”
10. The counsel appearing for the contesting
respondents would argue that the judgment cited by the counsel for the petitioners is not applicable to the facts of the case. In those cases, the challenge was regarding the non-selection of the candidates who had been given appointments and whose names were not sponsored by the Employment Exchange. The Apex Court has held that nothing prohibits the employer from calling for applications directly from the open market under Section 4(4) of the Act. Merely because the names were not sponsored does not give employment. Coming to the facts of this case, he submits that the Municipality has sought a list of candidates to be selected by conducting an interview and a physical test. The Municipality has consciously taken a decision not to call for notification through newspapers to the post. Section 4(4) only gives liberty to the Municipality to simultaneously issue a notification calling for application from the open market. There is no directive in the said section or in the reverse scheme mandatory for the Municipality to issue notifications simultaneously. It is the prerogative and discretion of the employer to go for either from the Employment Exchange or to go along with a fresh notification from the open market. Admittedly, no notifications have been issued in this case and the sole reason will not vitiate the proceedings initiated for recruitment from the Employment Exchange. The petitioners are the DLR workers working in the Municipality for the last so many years on daily wages and they have no legal right to get an appointment other than by a due selection process.
11. The petitioners cannot contend that the party
respondents who have been sponsored through the Employment Exchange in compliance with Exts.P4 and P5 orders cannot be appointed to the said posting as no open selection was brought in. Ext.P4 directs that whenever there arise vacancies the same has to be forwarded to the Employment Exchange for a list and the selection has to be done from the said post only. The Local Self Government is bound to follow the directions issued by the Government from time to time. As mentioned earlier there is no mandatory requirement for the employer under Section 4(4) of the Act to go for recruitment from the open market in addition to a list called for from the concerned Employment Exchange. It is stated that there is absolute discretion on the employer regarding the appointments to be made in the contingents section. The decisions mentioned above only suggest that the employer may go for open selection in addition to the calling for the list through the Employment Exchange.
12. Coming to the facts of the case, the petitioners
who are continuing in service do not have a case that they have been appointed through a valid selection and undergoing a selection process. In such case, the dictum laid by the Apex Court in Umadevi (supra) holds significance. The Ombudsman by Ext.P7 order had only directed that the appointment shall only be from the list submitted by the Employment Exchange as the petitioners have been working under daily wages when a valid list is brought into force necessarily the candidates who are included in the list has to be given priority in appointments. A long period of employment in any Municipality, Corporation, or Panchayat does not give a vested right to those persons to continue and for regularisation. Therefore, I am of the considered view that Ext.P7 is not illegal or improper. In the result, the writ petition fails and is dismissed. Sd/- BASANT BALAJI JUDGE sms APPENDIX OF WP(C) 2568/2024
PETITIONER EXHIBITS Exhibit P1 THE TRUE COPY OF THE LETTER NO.TEESHNR/375/2022-C1 DATED 18.08.2023 ISSUED BY TOWN EMPLOYMENT EXCHANGE OFFICER, SHORNUR TO THE 4TH RESPONDENT Exhibit P2 THE TRUE COPY OF COUNCIL DECISION NO.1 DATED 23.09.2023 OF THE 3RD RESPONDENT- MUNICIPALITY Exhibit P3 THE TRUE COPY OF THE ORDER NO.H1-9719/17 DATED 03.10.2023 OF THE 4TH RESPONDENT APPOINTING RESPONDENTS NO.7 TO 14 AS TEMPORARY SANITATION WORKERS AT 3RD RESPONDENT- MUNICIPALITY Exhibit P4 THE TRUE COPY OF G.O(MS) 14/82/LBR DATED 22.04.1982 Exhibit P5 THE TRUE COPY OF G.O(MS) 91/2001/LSGD DATED 29.03.2001 Exhibit P6 THE TRUE COPY OF THE COMPLAINT DATED 09.12.2022 OF THE 6TH RESPONDENT BEFORE THE 5TH RESPONDENT-OMBUDSMAN Exhibit P7 THE TRUE COPY OF THE ORDER DATED 28.11.2023 IN COMPLAINT NO.100/2023 ON THE FILES OF 5TH RESPONDENT-OMBUDSMAN RESPONDENT EXHIBITS EXHIBIT R7(a) True copy of the Order dated 25/09/2023 passed by the Secretary, Pattambi Municipality with No.H1-9719/17 PETITIONER EXHIBITS Exhibit R4 (a) True copy of the circular No. A4/82/LA and SWD dated 27/1/1982 issued by the government of Kerala