1. These two appeals are directed against the common judgment of the learned single Judge dated 4.2.2008 in W.P.Nos. 10583 and 6377 of 2007 respectively.
2. W.P. No. 6377 of 2007 was filed for a declaration that the Government (Standing) Order No. 447 (Education of Science and Technology Department) dated 16.7.1996 in so far as it restricts the selection and appointment of Secondary Grade Teachers by Districtwise seniority in the employment office as ultra vires and unconstitutional.
In W.P. No. 1 0583 of 2007, prayer was for issuing a writ of certiorarified mandamus for quashing G.O.Ms. No. 447 dated 16.7.1996 and the subsequent G.O.Ms. No. 241 (School Education Department) dated 22.9.2007 and quash the same so far as it prescribes Districtwise Recruitment of Secondary Grade teachers in the Government / Panchayat Union / Municipal Schools in the State and for a further direction to the respondents to make recruitment on statewide basis.
3. The brief facts are as follows:
From 1960 onwards, recruitment to the post of Secondary Grade Teachers in the Government Schools, Panchayat Union Schools and the Corporation Schools were being made at District level by calling for the names of the eligible candidates from the Employment Exchange and selection was made on the basis of interview. However, the Government changed the policy of selection in 1991 and holding of interview was dispensed with and the selection was being made on the basis of seniority in the roll of the respective District Employment Exchange. However, the Government issued G.O.Ms. No. 1251 Education dated 14.12.1992, whereunder the task of appointment to the post of Secondary Grade Teachers in the Government Schools, Panchayat Union Schools was entrusted to the Teachers Recruitment Board by holding selection test and interview. The selected candidates were appointed in various districts irrespective of their place of residence. Subsequently, however, the Government issued G.O.Ms. No. 447 dated 16.7.1996. The relevant provisions in such G.O. are as follows:
Order: As per above read Govt. Orders, the Secondary Grade Teacher vacancies are filled under Elementary Education and School Education Department through Tamil Nadu Teacher's Recruitment Board till date.
2. Now the Govt. on principle decided to appoint Secondary Grade Teachers through the concerned employment exchange considering the registration seniority instead of recruitment through Teachers Recruitment Board and the Director of Elementary Education send the proposal for consideration of the Government.
3. After the consideration the Govt. pass orders to appoint the required Secondary Grade Teachers necessary to the Elementary Education and School Education Departments under the following norms starting from this school year.
1) Secondary Grade Teachers are to be appointed on their employment registration seniority instead of existing procedure for it. The committee consisting of Chief Educational Officer as President and District Educational Officers/Elementary Education Officers as members shall conduct selections. Concerned appointing officers shall effect the appointments. List of vacancies shall be intimated by appointing officer to the committee.
...
5) As the list of persons seeking employment is pending since 1985, including the Backlog vacancies, from this year onwards appointments are to be effected following communal rotation.
6) Lady Teachers are to be appointed for 1st Std to 5th Std. If lady Teachers are not available, male Teachers not exceeding 10% shall be appointed.
4. The Secondary Grade Teachers Appointment procedure shall be applicable to the schools of Schedule Caste, Schedule Tribe Welfare Schools under Social Welfare, Backward class and Most Backward Classes Welfare, Local Bodies and Corporation.
3.1 The aforesaid G.O. was always understood to mean that selection shall be made from among the candidates whose names had been registered in the Employment Exchange register for the concerned district.
3.2 By G.O.Ms. No. 241 dated 22.9.2007, the Government permitted filling up of vacancies in the post of Secondary Grade Teachers and Physical Education Teachers in the Panchayat Union, Municipal, Corporation Elementary and Middle Schools and the Director of Elementary Education was directed to fill up all vacancies. On the basis of G.O.Ms. No. 241 dated 22.9.2007, the Director in Proceedings Na.Ka. No. 31055/D1/2007 dt. 15.11.2007 issued certain instructions relating to filling up of the posts and calling the list from Employment Exchange.
4. The grievance of the petitioners is to the effect that such selection of Secondary Grade Teachers in respect of vacancies arising within a particular district is confined to the persons registered in the register of the concerned District Employment Exchange and the candidates whose names have been registered in the register of Employment Exchange of other districts are not being considered for selection, even though they are willing to serve. Several representations to the effect that selection should be made on the basis of Statewide seniority in the Employment Exchange were made. Since such representations of the petitioners were remained unheeded, the writ petitions were filed.
4.1 The basis of the claim made by the petitioners is that in view of the provisions contained in Articles 14, 16(2) and 19(1) of the Constitution, the procedure hitherto followed regarding selection of the Secondary Grade Teachers by considering only the candidates whose names are included in the Employment Exchange of the concerned district, is illegal and unconstitutional.
5. In the counter affidavit of the State, it has been highlighted that the source and method of appointment are governed by the Special Rule for the Tamil Nadu Elementary Education Subordinate Services for various categories of the posts as contained in G.O.Ms. No. 1 383 dated 23.8.1988. As per the said G.O., the appointing authority in respect of Secondary Grade Teachers is the District Elementary Educational Officer of the concerned District. Before 1990, the appointment was made from among the candidates sponsored by the Employment Exchange and selection was made on the basis of interview. Subsequently, the Government decided to make appointment on the basis of seniority of the candidates as reflected in the register of the Employment Exchange, subject to of course the rule of reservation. Subsequently, by G.O.Ms. No. 1 251 dated 14.12.1992, the process of selection was entrusted to the Teachers Recruitment Board and, on such basis, selection was made during the year 1995 and the candidates selected were posted in different districts irrespective of their place of residence. However, since 50% of the vacancies were earmarked for women candidates and since there were requests for transfer, the Government, in order to overcome such a situation, issued G.O.Ms. No. 447 dated 16.7.1996 with a view to make the selection of the teachers on the basis of seniority in the District Employment Exchange register. It was further indicated that as per Rule 10A of the Tamil Nadu State and Subordinate Service Rules it is obligatory to make recruitment only by obtaining list of eligible candidates from the Employment Exchange. Since as per Rule 1(i) of the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 and Rules 1960, vacancies other than the posts of a technical and scientific nature carrying a basic pay of Rs. 1400/- or more per month shall be notified by 'local employment exchange' itself and since salary of a Secondary Grade Teacher was below the aforesaid limit and since selection is to be made by the District Elementary Educational Officer, names are called for from the District Employment Exchange. It was further indicated that the procedure which was followed was a time tested procedure being in vogue for more than 11 years and no grievance whatsoever had been raised from any quarters. On the aforesaid basis, the Government justified the G.O. as well as the procedure hitherto followed and contended that the provisions contained in Articles 14, 16(2) and 19(1) of the Constitution are not violated.
6.Learned single Judge has concluded that as per Rule 10A of the Tamil Nadu State and Subordinate Service Rules, recruitment can be made only from the candidates sponsored by the Employment Exchange. As per the provisions contained in the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959, hereinafter referred to as 'the Act', and the Employment Exchanges (Compulsory Notification of Vacancies) Rules, 1960, hereinafter referred to as 'the Rules', there is requirement of compulsory notification of the vacancies by the Employment Exchange. Since the District Employment Exchange can be considered as 'local Employment Exchange' within the meaning of the Act and the Rules and since the pay scale was below Rs. 1400/-, there is requirement of calling for the names from the District Employment Exchange and calling of the names only from the concerned District Employment Exchange is valid. Learned single Judge put emphasise on the fact that validity of Rule 10A was not at all in question. By relying upon Rule 3 of the Employment Exchanges (Compulsory Notification of Vacancies) Rules, 1960, the validity of the procedure followed has been accepted. While considering the invalidity of such procedure or practice on the anvil of Articles 14, 16(2) and 19(1) of the Constitution, though the learned single Judge found some substance in the submission yet, repelled the same by observing that the validity of the impugned orders, which had been issued in accordance with Rules 3 and 9 of the Special Rules for the Tamil Nadu Elementary Educational Subordinate Service and Rule 10(A) of the Tamil Nadu State and Subordinate Service Rules , could not be tested without specific challenge to the validity of the Rules.
6.1 The decision of the Division Bench of this Court reported in 1982 WLR 420 (National Life Insurance Employees' Association, Rep. by Its General Secretary and Anr. v. The Life Insurance Corporation of India, Madras) was distinguished by observing that in the Regulations made by the Life Insurance Corporation, there was no provision enabling the Corporation to prescribe that the candidates in the concerned local employment exchange alone were eligible to apply but, the provisions in the Special Rules for the Tamil Nadu Elementary Educational Subordinate Service and the Tamil Nadu State and Subordinate Service Rules specifically so contemplated. While accepting the contention that law contemplated under Article 16(3) can be made only by Parliament, it was observed that making residence as one of the requirement had not been made in the impugned Government Orders and the same had been made only by the Special Rules and the Tamil Nadu State and Subordinate Service Rules.
6.2.While focussing on the question whether the process of employment can be confined only to the candidates sponsored by the employment exchange, the learned Single Judge, by placing reliance upon the Supreme Court decision in : (2006)IILLJ722SC (Secretary of Karnataka v. Umadevi), has concluded that the impugned Government Orders and proceedings had not been issued in derogation of any statutory rule and unless the statutory rules are held to be ultra vires in appropriate case, it would not be possible to hold that the impugned Government Orders and the proceedings were unconstitutional.
7.We have heard Mr. Issac Mohanlal, Mr.G. Prabhu Rajadurai for the appellants and Mr.N. Kannadasan, Addl. Advocate General and Mr.G. Sankaran, Government Advocate, for the State. We have also heard Mr.N.Mariappan and Mr.Veera.Kathiravan, who have appeared for the Interveners (some of the teachers who have been selected and appointed in the meantime have been allowed to make submissions as interveners).
8.Learned Counsels appearing for the appellants have submitted that in view of the provisions contained in Articles 14, 16(2) and 19(1) of the Constitution, a person, whose name has been registered in the Employment Exchange in a particular district, has every right to seek employment in any part of the State. It is amplified by the learned Counsel for the appellants that a person's name is recorded in the Employment Exchange of a concerned district on the basis of his residence and he is not allowed to shift his name in the register of one Employment Exchange to another Employment Exchange in another district, save and except on the basis of change in the residence as contemplated in G.O.Ms. No. 66 dated 15.7.2002. Confining the selection of a Secondary Grade Teacher in respect of a vacancy arising within a particular district to the persons included in the register of the Employment Exchange of the concerned district, has the direct and the only impact of denying employment in a public office to a person solely on the ground of residence. It is contended that though the candidates who have completed their education and got their names registered in the district of their residence as long as back 1990 or so, yet such persons are not allowed to change their registration to another district nor they were allowed to seek employment in another district and a person who has got his name registered just a couple of years before in another district is able to secure employment merely because his name is senior enough in the Employment Exchange register of the concerned district. By the above process, the fundamental rights under Articles 14, 16(2) and 19(1) are being violated.
9.Learned Addl. Advocate General appearing for the State, apart from reiterating the stand highlighted before the learned single Judge and the reasonings reflected in the Judgment, has advanced an ingenious submission to the effect that the provisions contained in the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959, which is a Parliamentary law, can be construed as a necessary legislation as contemplated in Article 16(3) of the Constitution.
10.Learned Counsel for the Interveners, apart from supporting such submissions made by the State, has submitted that the concerned candidates have already been selected and have been posted and it may not be in the interest of justice to remove such persons from service as they have secured employment on the basis of the existing rules and procedures.
11.Article 16(2) clearly envisages that no person can be denied employment in public service on the ground of his residence alone. If a person with residence of a particular district who has to register his name willy-nilly in the same District Employment Exchange, is disabled from seeking employment in another part of the very same State, the only result is denial of opportunity of employment solely on the ground of residence and nothing else. Article 16(3) envisages an exception in the sense that it enables the Parliament and not any State Legislature to make a law.
12.In : [1970]1SCR115 A.V.S.N. Rao v. State of A.P., while considering the provisions contained in Article 16 of the Constitution, the Supreme Court observed:
10. ...By the first clause equality of opportunity in employment or appointment to an office is guaranteed. By the second clause, there can be no discrimination, among other things, on the ground of residence. Realising, however, that sometimes local sentiments may have to be respected or sometimes an inroad from more advanced States into less developed States may have to be prevented, and a residential qualification may, therefore, have to be prescribed, the exception to Clause (3) was made. Even so, that clause spoke of residence within the State. The claim of Mr.Setalvad that Parliament can make a provision regarding residence in any particular part of a State would render the general prohibition lose all its meaning. The word 'any requirement' cannot be read to warrant something which could have been said more specifically. These words bear upon the kind of residence or its duration rather than its location within the State. We accept the argument of Mr.Gupte that the Constitution as it stands, speaks of a whole State as the venue for residential qualification and it is impossible to think that the Constituent Assembly was thinking of residence in Districts, Taluqas, cities towns or villages. The fact that this clause is an exception and came as an amendment must dictate that a narrow construction upon the exception should be placed as indeed the debates in the Constituent Assembly also seem to indicate. We accordingly reject the contention of Mr. Setalvad seeking to put a very wide and liberal construction upon the words 'any law' and 'any requirement'. These words are obviously controlled by the words 'residence within the State or Union Territory' which words mean what they say, neither more nor less. It follows, therefore, that Section 3 of the Public Employment (Requirement as to Residence) Act, 1957, in so far as it relates to Telengana (and we say nothing about the other parts) and Rule 3 of the Rules under it are ultra vires the Constitution.
13.The Supreme Court had occasion to deal with the matters pertaining to Article 16 in several other decisions, including the decisions reported in : [1968]2SCR786 (Minor P. Rajendran v. State of Madras and Ors.), : (1984)IILLJ481SC (Pradip Jain v. Union of India), : (1997)ILLJ56SC (cited supra) : [2002]SUPP1SCR317 (Kailash Chand Sharma v. State of Rajasthan and Ors.), : AIR2006SC1165 (Union Public Service Commission v. Girish Jayanti Lal Vaghela).
14.It is no doubt true that in : [1968]2SCR786 (cited supra), while considering the question of admission, the question of territorial classification as a reasonable classification for differential treatment was not fully discounted by observing:
11. ...It is true that Article 14 does not forbid classification, but the classification has to be justified on the basis of the nexus between the classification and the object to be achieved, even assuming that territorial classification may be a reasonable classification. The fact however that the classification by itself is reasonable is not enough to support it unless there is nexus between the classification and the object to be achieved. Therefore, as the object to be achieved in a case of the kind with which we are concerned is to get the best talent for admission to professional colleges, the allocation of seats districtwise has no reasonable relation with the object to be achieved. If anything, such allocation will result in many cases in the object being destroyed, and if that is so, the classification, even if reasonable, would result in discrimination, inasmuch as better qualified candidates from one district may be rejected while less qualified candidates from other districts may be admitted from either of the two sources..
13. Another justification that has been attempted is that candidates coming from various districts would settle down in those districts and thus medical help would be available in sufficient measure in all the districts. Now this was not stated in the affidavit on behalf of the State of Madras. Besides there are no facts and figures to suggest that candidates from a particular district would by and large settle down in that district. Further the various options in the matter of nativity certificate to which we have referred, show that candidates will have a number of districts to choose from depending upon where they think that their chances are best and therefore the argument that districtwise allocation is justifiable on this ground is in our opinion of no merit. We are satisfied therefore that the State of Madras has made out no case for districtwise allocation of seats in medical colleges. We are also satisfied that such allocation results in discrimination and there is no nexus between this territorial distribution and the object to be achieved, namely, admission of the best talent from the two sources already indicated. We are therefore of opinion that allocation of seats on districtwise basis is violative of Article 14. We may add that we do not mean to say that territorial classification is always bad under all circumstances. But there is no doubt that districtwise classification which is being justified on a territorial basis in these cases is violative of Article 14, for no justification worth the name in support of the classification has been made out. We therefore hold that Rule 8 providing for districtwise allocation is bad, as it violates Article 14 and we hereby strike it down.
15.In : (1984)IILLJ481SC (Pradip Jain v. Union of India), while considering the question whether residential requirement can be constitutionally permissible for admission to colleges, the Supreme Court observed in the following manner relating to residential requirement in the field of public employment:
5. We may point out at this stage that though Article 15 clauses (1) and (2) bars discrimination on grounds not only of religion, race, caste or sex but also a place of birth, Article 16(2) goes further and provides that no citizen shall on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them be ineligible for or discriminated against in State employment. So far as employment under the State or any local or other authority is concerned, no citizen can be given preference nor can any discrimination be practised against him on the ground only of residence. It would thus appear that residential requirement would be unconstitutional as a condition of eligibility for employment or appointment to an office under the State.... But Article 16(3) provides an exception to this rule by laying down that Parliament may make a law 'prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State or Union Territory, any requirement as to residence within that State or Union Territory prior to such employment or appointment'. Parliament alone is given the right to enact an exception to the ban on discrimination based on residence and that too only with respect to positions within the employment of a State Government. But even so, without any parliamentary enactment permitting them to do so, many of the State Governments have been pursuing policies of localism since long and these policies are now quite widespread. Parliament has in fact exercised little control over these policies formulated by the States. The only action which Parliament has taken under Article 16(3) giving it the right to set residence requirements has been the enactment of the Public Employment (Requirement as to Residence) Act, 1957 ...There is therefore at present no parliamentary enactment permitting preferential policies based on residence requirement except in the case of Andhra Pradesh, Manipur, Tripura and Himachal Pradesh where the Central Government has been given the right to issue directions setting residence requirements in the subordinate services. Yet, in the face of Article 16(2), some of the States are adopting 'sons of the soil' policies prescribing reservation or preference based on domicile or residence requirement for employment or appointment to an office under the Government of a State or any local or other authority or public sector corporation or any other corporation which is an instrumentality or agency of the State. Prima facie this would seem to be constitutionally impermissible though we do not wish to express any definite opinion upon it, since it does not directly arise for consideration in these writ petitions and civil appeal.
16. In (cited supra), in the context of public employment and the Supreme Court observed:
13. Before proceeding further we should steer clear of a misconception that surfaced in the course of arguments advanced on behalf of the State and some of the parties. Based on the decisions which countenanced geographical classification for certain weighty reasons such as socio-economic backwardness of the area for the purpose of admissions to professional colleges, it has been suggested that residence within a district or rural areas of that district could be a valid basis for classification for the purpose of public employment as well. We have no doubt that such a sweeping argument which has the overtones of parochialism is liable to be rejected on the plain terms of Article 16(2) and in the light of Article 16(3). An argument of this nature flies in the face of the peremptory language of Article 16(2) and runs counter to our constitutional ethos founded on unity and integrity of the nation. Attempts to prefer candidates of a local area in the State were nipped in the bud by this Court since long past. We would like to reiterate that residence by itself - be it within a State, region, district or lesser area within a district cannot be a ground to accord preferential treatment or reservation, save as provided in Article 16(3). It is not possible to compartmentalize the State into districts with a view to offer employment to the residents of that district on a preferential basis. At this juncture it is appropriate to undertake a brief analysis of Article 16.
16.1 While recognizing the possibility of preference on the basis of rural backwardness for the purpose of admission to medical colleges, the Supreme Court proceeded to observe:
27. These observations, in our view, cannot be legitimately pressed into service for the purpose of justifying reservation or weightage in favour of rural candidates on the ground of nativity/residence for purposes of public employment. The difference in approach in relation to Articles 15 and 16 was indicated by Bhagwati, J. in Pradeep Jain case and we have quoted the relevant passage extensively. It was made clear in Pradeep Jain case that in the matter of admissions to professional colleges the considerations were different. As far as public employment is concerned, the classification on the basis of residence in a region or locality was broadly held to be constitutionally impermissible. Moreover, the preferential treatment of rural candidates in the instant case is not on the ground that they hail from the backward region. All or most of the villages in the district or the State cannot be presumed to be backward educationally or economically. Such a claim was not accepted in Pradip Tandon case by the three-Judge Bench. Even in Nidamarti case it was held that in the absence of material, certain regions cannot be dubbed as backward.
28. The justifiability of the plea stemming from the premise that uplifting the rural people is an affirmative action to improve their lot can be tested from the concrete situation which confronts us in the present cases. We are here concerned with the selections to the posts of teachers of primary schools, the minimum qualification being SSC coupled with basic training course in teaching. Can the Court proceed on the assumption that the candidates residing in the town areas with their education in the schools or colleges located in the towns or its peripheral areas stand on a higher pedestal than the candidates who had studied in the rural area schools or colleges? Is the latter comparatively a disadvantaged and economically weaker segment when compared to the former? We do not think so. The aspirants for the teachers' jobs in primary schools ' be they from rural area or town area ' do not generally belong to the affluent class. Apparently they come from the lower middle class or poor background. By and large, in the pursuit of education, they suffer and share the same handicaps as their fellow citizens in rural areas. It cannot be said that the applicants from non-rural areas have access to the best of schools and colleges which the well-to-do class may have. Further, without any data, it is not possible to presume that the schools and colleges located in the towns ' small or big ' and their peripheral areas are much better qualitatively, that is to say, from the point of view of teaching standards or infrastructure facilities so as to give an edge to the town candidates over the rural candidates.
16.2 While considering the possibility of reluctance of candidates from urban areas to serve in rural areas and the consequential absenteeism and propensity to seek transfer (pleas which are very similar to submissions made by the learned Addl. Advocate General), the Supreme Court repelled such submission in no uncertain term by observing:
32. Coming then to the next plea that the residents of towns, if appointed will not be willing to serve the rural areas and they will be more interested in getting themselves transferred to 'relatively urban area and forward districts', does not in our view, stand a moment's scrutiny. The apprehension that 'teacher absenteeism' will be rampant if non-rural candidates are appointed, to say the least, is based on irrelevant and unwarranted assumptions. First of all, as rightly pointed out by Dr A.M. Singhvi, postings and transfers are managerial functions. The authorities in charge concerned cannot be heard to say that there will be undue pressures from the candidates from extraneous sources and they will have to succumb to such pressures. Secondly, the question of non-rural candidates trying to avoid working in villages and seeking transfer to town or urban areas does not arise for the simple reason that the appointees would have no option but to work in villages coming within the jurisdiction of the Panchayat Samiti concerned. The only other possibility is that they may like to have postings in the villages close to the town. If the non-rural candidates would like to have postings at places close to the town, the rural area candidates may equally have the desire to get postings close to their native villages and many of them may even prefer working at places near the town. Thus desire and aspiration in regard to choosing the place of work need not be on a set pattern. Ultimately, it is a matter of regulation of postings of rural as well as non-rural candidates. As regards the candidates coming from other districts, the question of seeking inter-district transfer does not arise, as they are required to work within the particular district in which they are selected and appointed. The factors which may exist in the context of appointments to State-wide cadre does not exist here. The difficulties sought to be projected by the State appear to be more imaginary rather than real. We have, therefore, no hesitation in rejecting this argument.
17.In (cited supra), while considering the question relating to employment in the context of Articles 14 and 16 of the Constitution of India, it was observed:
12.Article 16 which finds place in Part III of the Constitution relating to fundamental rights provides that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. The main object of Article 16 is to create a constitutional right to equality of opportunity and employment in public offices. The words 'employment or appointment' cover not merely the initial appointment but also other attributes of service like promotion and age of superannuation, etc. The appointment to any post under the State can only be made after a proper advertisement has been made inviting applications from eligible candidates and holding of selection by a body of experts or a specially constituted committee whose members are fair and impartial through a written examination or interview or some other rational criteria for judging the inter se merit of candidates who have applied in response to the advertisement made. A regular appointment to a post under the State or Union cannot be made without issuing advertisement in the prescribed manner which may in some cases include inviting applications from the employment exchange where eligible candidates get their names registered. Any regular appointment made on a post under the State or Union without issuing advertisement inviting applications from eligible candidates and without holding a proper selection where all eligible candidates get a fair chance to compete would violate the guarantee enshrined under Article 16 of the Constitution.
18. Apart from the aforesaid decisions of the Supreme Court, a Division Bench of this Court had an occasion to deal with a similar matter in 1989 WLR 420 (cited supra), wherein it was observed:
7. ...The crux of the matter is to find out, whether by the advertisement, there is an indication that only persons residing in the said District are to be considered or the opportunity of employment had been thrown open to every eligible candidate in the country. If it be made out from the advertisement the persons residing in a particular area is 'preferred for employment' then Art.16(2) is offended.... A reading of these two paragraphs in the advertisement leads to the irresistible conclusion that by resorting to recruitment confined to these Employment Exchanges, the Corporation is aiming to prefer applicants residing in the concerned districts....
19. In view of the provisions contained in Article 16 and in view of the above decisions, there cannot be any doubt that no person can be denied equality of opportunity in employment on the ground of residence alone.
20. In the present case, there is no law made by the Parliament enabling the blatant denial of such right under Articles 14, 16(2) and 19(1) of the Constitution. There is not even a State law, but merely executive instruction. In fact in view of Articles 16(3) and 33 of the Constitution no such State law can ever be made. A mere Government Order, which is only an executive instruction, has thus deprived a citizen of India of his right under Articles 14, 16(2) and 19(1) the right to seek employment even in the very same State. We do not find words apt enough to describe the illegality of such blatant violation of the provisions of the Constitution of India.
21. Nevertheless, since a submission has been made by the learned Additional Advocate General that the provisions contained in the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 constitutes such a Parliamentary law as envisaged under Article 16(3) and Article 33 of the Constitution and since the learned single Judge has placed so much reliance on the provisions of the Employment Exchanges (Compulsory Notification of Vacancies) Act and the Rules thereunder to justify such obnoxious discrimination between a citizen of the very same State as compared to another citizen of the very same State, we now travail to consider the submissions made on that score.
22.The Employment Exchanges (Compulsory Notification of Vacancies) Act is a Central Act enacted by the Parliament to provide for the compulsory notification of vacancies to employment exchanges. As per the definition clause in Section 2(a),
appropriate Government' means --
(1) in relation to --
(a) any establishment of any railway, major port, mine or oil-field, or,
(b) any establishment owned, controlled or managed by --
(i) the Central Government or a department of the Central Government,
(ii) a company in which not less than fifty-one per cent of the share capital is held by the Central Government or partly by the Central Government and partly by one or more State Governments,
(iii) a corporation (including a co-operative society) established by or under a Central Act which is owned, controlled or managed by the Central Government, the Central Government.
(2) in relation to any other establishment, the Government of the State in which that other establishment is situate;
As per Section 2(d),
'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.
22.1 Section 4 requires the employer in every establishment in public sector in that State or area shall, before filling up any vacancy to notify that vacancy to such employment exchanges as may be prescribed.
Section 4(4), however, makes it clear that the provisions in Sections 4(1) and 4(2) shall not be deemed to impose any obligation on the employer to recruit any person through the employment exchange to fill any vacancy merely because such vacancy has been notified under those Sections. In other words, the obligation is to notify the vacancies and the obligation is not to limit the recruitment to the persons sponsored by the employment exchange.
23.In fact the provisions of such Act and the Rules made thereunder came for consideration in the Full Bench decision reported in 2007(5) CTC 561 (R. Sivakumari and 17 Ors. v. Ramanathapuram Mavatta Payirchipetra Edainilai Asiriyargal Sangam and Ors.), wherein after referring to the decisions of the Supreme Court in : (1987)ILLJ545SC (Union of India v. N. Hargopal), : (1997)ILLJ56SC (Excise Superintendent Malkapatnam, Krishna District v. K.B.N. Visweshwara Rao) and : (2006)8SCC111 (Arun Kumar Nayak v. Union of India) it was held:
24. Therefore, if the recruitment of about four thousand secondary grade teachers to the Government Schools, were to be made in accordance with the law laid down by the Supreme Court, the respondents ought to have followed the following procedure namely -
A. Notify the Employment Exchanges.
B. Issue publications in newspapers having wide circulation, inviting Applications.
C. Display the notification in the notice boards of the respective offices or make announcements in the media.
25. If the above procedure, as prescribed by the Supreme Court had been followed, the question of restricting the choice of selection only to those whose names are borne on the rolls of the Employment Exchanges and the removal of the names of already employed candidates from the 'Live Register' of the Employment Exchanges would not have arisen. As a matter of fact, persons who are already employed, would have made applications in response to the advertisements issued in the newspapers, without being bothered about the sponsorship through Employment Exchanges. Since the aforesaid procedure laid down by the Supreme Court has not been followed, the question as to whether a person has a right to continue to have his name on the rolls of the Employment Exchanges, even after securing employment in a Private School, has come up for consideration.
24. We have ransacked the entire provisions contained in the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959, but, contrary to the assertions made by the learned Additional Advocate General, we do not find even any semblance of a provision in such Act, which purports to enact a law providing employment to public office, is confined to the residents of a particular area or the district.
25. Learned Additional Advocate General and, for that matter, the learned single Judge have relied upon the provisions contained in the Employment Exchanges (Compulsory Notification of Vacancies) Rules, 1960, which have been framed in exercise of power under Section 10 of the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959. As per Rule 2(5), Local Employment Exchange' means -
(a) in the whole of India except the Union territory of Chandigarh that Employment Exchange (other than the Central Employment Exchange) notified in the Official Gazette by the State Government or the Administration of the Union Territory as having jurisdiction over the area in which the establishment concerned is situated or over specified classes or categories of establishments or vacancies; and
(b) in the Union territory of Chandigarh that Employment Exchange established either by the Union territory Administration of Chandigarh or by the State Government of Punjab or Haryana notified in that State's respective Official Gazette as having jurisdiction over specified classes or categories of establishments or vacancies, provided that the employment exchanges established by the State Government of Punjab or Haryana shall not have jurisdiction over --
(i) the public sector offices / establishments other than those belonging to the respective States, and
(ii) private sector establishments.
Rule 3, being relevant, is quoted hereunder:
3. Employment Exchanges to which vacancies are to be notified. -- (1) The following vacancies, namely, -
(a)vacancies in posts of a technical and scientific nature carrying a basic pay of Rs. 1400 or more per month occurring in establishments in respect of which the Central Government is the appropriate Government under the Act, and
(b)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.
(2) Vacancies other than those specified in Sub-rule(1) shall be notified to the local Employment Exchange concerned.
26.We do not agree with the conclusion of the learned single Judge that the meaning of 'local employment exchange' in the context in which it has been used in the Rules means the office of an Employment Exchange in a particular district. The Rules which are required to be read along with the Act only mean that in respect of the posts indicated under Rule 3(1) shall be notified to the Central Employment Exchange, whereas in respect of those coming within Rule 3(2), it may be notified to the local employment exchange concerned, namely, the concerned State. At any rate, even assuming that the interpretation by the learned single Judge is correct, the provisions of such Act and the Rules are required to be construed in a manner consistent with the provisions of the Constitution and not in a manner offending such provisions.
27. The main intention of the Act and the Rules is for the purpose of highlighting the availability of posts so that the persons whose names have been registered and who are sponsored by the Employment Exchange are not required to apply specifically for the post, but the provisions of the Act and the Rules cannot be construed to mean that the employment has to be confined to those whose names have been included in the employment register and even assuming that it can be so, if a person's name is entered in the Employment Exchange register of a particular district, such person cannot be denied the right of employment in another district of the very same State on the ground that his name finds place in the Employment Exchange of one district and not of the other district. Any such interpretation would clearly be violative of Article 16(2) as well as Article 19(1) and also Article 14 of the Constitution.
28. The learned single Judge has placed much emphasis on Rule 10A of the Tamil Nadu State and Subordinate Service Rules, which is to the following effect:
10A. Recruitment to posts, which are outside the purview of the Tamil Nadu Public Service Commission.- (a) 'Where posts are outside the purview of the TNPSC, recruitment shall be made only by calling for names of eligible candidates from the Employment Exchange'. In respect of specialised posts for which candidates are not available with the Employment Exchange, the appointing authority shall get a certificate of a non-availability from the Employment Exchange, and call for applications from the eligible candidates by advertising the posts in prominent daily newspapers giving the number of vacancies and indicating the qualifications, etc.
29.Even though the learned single Judge appears to be conscious of the position of law that confining the recruitment to the names registered in an Employment Exchange may be contrary to the decisions of the Supreme Court, particularly in : (1997)ILLJ56SC and : (2006)8SCC111 (cited supra), the learned single Judge has observed that in the absence of any challenge to the validity of such Rule, such question need not be decided.
30.May be because of the peculiar position, the candidates who have registered their names in some Employment Exchange or the other have not felt the necessity of challenging the validity of such a provision. The contention raised in the present appeals by the writ petitioners is to the effect that while selecting for the post of Secondary Grade Teacher, the authorities cannot confine the process of selection to the persons whose names have been included in the Employment Exchange of a particular district. Rule 10A does not specifically provide that the process of selection has to be confined to the names registered in a particular district. If Rule 10A is to be construed in such a manner, it would obviously be against the provisions contained in Article 16(2) and since a law confining the question of employment on the basis of residence alone can be made by the Parliament, obviously if any State law or rule would be made laying down that the employment shall be confined to the residents of a particular district, such law/rule would be invalid. Law is well settled that a provision should ordinarily be interpreted in a manner consistent with the provisions contained in the Constitution including the chapter relating to fundamental rights. Therefore, Rule 10A is required to be read in the light of the provisions contained in Article 16(2) as well as Articles 14 and 19(1) of the Constitution.
31.In course of hearing, the learned Additional Advocate General expressed an apprehension in respect of qualified persons, who have got registered their names in some particular districts such as Kanyakumari or Tirunelveli, where many persons from 1989 or 1990 onwards, by virtue of their inclusion in the employment register from an earlier date, would swamp the selection relating to appointment of Secondary Grade Teacher in other districts and thereby prevent the persons whose names have been registered in such other districts from getting the employment. This submission precisely overlooks the right guaranteed under Article 16(2) in no uncertain terms. Merely because persons from a particular area are likely to secure more number of jobs in another area, such apprehension cannot be a valid legal ground to deny employment to those persons. As a matter of fact, in the absence of any Parliamentary law as envisaged under Article 16(3) permitting such discrimination, the entire submission made by the learned Additional Advocate General as well as the counsels appearing for the Interveners is bound to be rejected.
32.Learned Additional Advocate General has also expressed an apprehension that many times, persons from a particular district after getting employment, and more particularly women candidates, would seek transfer to their own native district, thereby causing difficulties for the administration to run the schools properly.
33.We do not think such a submission can have any legs to stand upon. Whether a person who is seeking transfer would be transferred or not is a matter for the employer to decide and the State can always make necessary provision discouraging or even preventing such transfer.
34.As a matter of fact the decision of the Supreme Court in (cited supra) is a complete answer to such imaginary excuses putforth by the State. In a very recent decision, the Supreme Court has expressed its grave concern relating to possible balkanization of the country because of the spread of non-tolerance displayed in some parts of the country. The submissions which are now being made by the learned Additional Advocate General or the counsel for the Interveners bring only to fore the above unwelcome trend. We do not think that such a course can ever be countenanced. As a citizen of India one has to imbibe the spirit of the Constitution and follow the adage made famous by no less a personality than Justice Krishna Iyer that 'Kashmir to Kanyakumari, India is one'. However, a reading of the counter filed by the State Government and the stand so painstakingly putforth by the learned Addl. Advocate General, though more in desperation rather than with any conviction, one gets the feeling that even though Kashmir to Kanyakumari - India may be one, Dharmapuri to Kanyakumari - Tamil Nadu is not one. The net result of the policy hitherto followed by some curious logic is that a duly qualified person, who is born in one part of the Tamil Nadu and gets himself registered in the district of his residence, cannot seek employment under the Government in another district of the very same State. If this does not amount to denial of right to equality under Article 14 and more particularly Article 16(2) and the right under Article 19(1), we fail to imagine what else can be the denial of such fundamental rights.
35.In view of the above discussion, in our considered opinion, confining the question of selection to the candidates sponsored by the Employment Exchange of a particular district without considering the willingness, availability and suitability of similar candidates who have been registered in the other district employment exchanges, is clearly violative of fundamental rights and, therefore, cannot be countenanced. The impugned G.O.Ms. No. 447, dated 16.07.1996 is liable to be quashed. Accordingly, a direction is issued to consider the question of selection of eligible candidates, even though such candidates' names have been registered in other District Employment Exchanges. For the aforesaid purpose, obviously intimation is required to be given to all the District Employment Exchanges and public advertisement throughout the State is required to be made so that any willing candidate even though registered in a different district can offer his candidature.
36. The next question is regarding the selection already made. When the matter was entertained by the learned single Judge, an order of interim stay had been granted. Subsequently, however, when the writ petitions were dismissed and the Division Bench did not pass any order of interim stay but only observed that any selection made shall be subject to the result of the writ appeals, many such appointments have been made. Even though we do not appreciate the alacrity with which such appointments have been made in the interregnum by taking advantage of the fact that no specific order of stay was granted, we feel in the peculiar factual situation and particularly keeping in view the fact that hitherto such selections have been made for number of years, the question of termination of the persons already appointed is left to the discretion of the State Government. However, in respect of the vacancies yet to be filled up, the State Government as well as other authorities are required to make the selection only after inviting applications from all over the State.
37. The writ appeals are accordingly allowed, subject to the aforesaid observations. No costs. Consequently, the connected miscellaneous petitions are closed.