M. Sankara Reddy vs A.P. State Electricity Board, and another

Mr. Ramachandra Rao, J.—The petitioner herein is a graduate in Engineering in the Electrical Branch. He obtained his B.E. degree in the year 1970 and registered himself in the Regional Employment Exchange, Hyderabad in the same year, his registration number being PE. 2211/70. The petitioner registered for the specific occupation of Engineer (Electrical) which hours the occupational classification Code No. 003.20 (old) corresponding to 022 10 (new). The petitioner applied in the year 1971-72 for the post of Junior Engineer (Electrical) in the Andhra Pradesh State Electricity Board but he was not selected. In the year 1976 the petitioner was appointed temporarily as a Supervisor (Electrical) in the Roads and Buildings Department under Rule l0(a) (i) of the General Rules of the Andhra Pradesh State and Subordinate Services having been sponsored for the said post by the Regional Employment Officer, P & E., Hyderabad. While so, having learnt that some posts of the Junior Engineers had fallen vaccant in the Andhra Pradesh State Electricity Board (hereinafter referred to as the Board), the petitioner sent an application to the Board on 16.3.1968 but the petitioner was not called for the interview. On enquiry he learnt that his application was rejected as he was not sponsored by the Regional Employment Officer. The petitioner has thereupon filed this writ petition for the issue of a writ of Mandamus directing the Board to consider his application for the post of Junior Engineer by treating the registration of the petitioner in the petitioner in the Regional Employment Exchange with registration No. PE- 2218/60 as valid and subsisting. The petitioner contends that there is no rule either in the A.P. State Electricity Board Service Rules or in the Recruitment Rules requiring a candidate to be routed through the Employment Exchange before he is appointed to the service under the Board He also contends that the Regional Employment Officer should have sponsored the came of the petitioner to the Board for consideration for appointment to the post of Junior Engineer as the petitioner had registered his name is the Regional Employment Exchange for the post of Junior Engineer (Electrical), that the petitioner was holding the post of Supervisor in the Roads and Buildings Department purely on a temporary basis which is liable to be terminated at any time, and that the action of Regional Employment Officer in not sponsoring the name of the petitioner to the Board is illegal and unjust. Pending the writ petition, he sought interim directions to direct the first respondent to interview the petitioner and consider has application for appointment to the post of Junior Engineer. An interim order was passed on 25.1978 directing the first respondent to consider the petitioner for appointment as Junior Engineer by calling him for the interview. It is stated that tee petitioner was interviewed and he was included in the panel of candidates selected for appointment to the post of Junior Engineers.

On behalf of the Board, a counter affidavit has been filed by the Manager, Personnel Services stating that 964 applications were received for the post of Junior Engineer (Electrical) out of which the interviews were restricted to 600 candidates who secured the prescribed marks and that the petitioner was not called for the interview as he secured less marks. It is also stated that the vacancies were non tied to the Employment Exchange as it is obligatory on the part of the Board to obtain list of the candidates from the Employment Exchange, that the name of the petitioner was not sponsored by the Exchange as he was already employed in the Roads and Buildings Department of the State Government and that as the petitioner''s name was not sponsored by the Exchange, be was not called for the interview. But the petitioner was interviewed pursuant to the interim directions given by this Court. It is further stated that as the petitioner was not sponsored by the Exchange, he could not be appointed as a Junior Engineer in view of the mandatory provisions of the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959.

The Regional Employment Officer, Hyderabad, the second respondent, has filed a counter affidavit stating that the petitioner''s name was registered for the occupation under Code No. N. C. O. No. 022.10 i.e., Junior Engineer (Electrical) and his registeration card was transferred to the Dead Register in January, 1976 as per the instructions contained in para 7.44 of the National Employment Service Manual as he secured a job as Supervisor (Electrical) under the Roads and Buildings, Chief Engineer. Public Works Department. It is also stated in the counter that the petitioner did not register his name again in the Exchange and hence, the question of sponsoring his name for the vacancies of Junior Engineer (Electrical) notified by the Board did not arise as the petitioner''s name was not borne on the Live Register. It is also stated that the transfer of the index card of the petitioner from the Live Register to the Dead Register was done in accordance with the instructions in the Manual and the before it is valid.

Sri T. Bali Reddy, the learned counsel for the petitioner firstly contended that neither the Employment Exchange (Compulsory Notification of Vancancies) Act, 1959 (hereinafter called ''the Act'') nor the Andhra Pradesh State Electricity Board Service or Recruitment Rules prohibit the Board from employing a candidate not sponsored by the Employment Exchange, and therefore, the Board was bound to call the petitioner for interview even though he was not sponsored by the Employment Exchange and consider him for selection on merit along with the other candidates. No provision of of the Act has been brought to my notice prohibiting the employer from filling up a vacancy in its establishment with a candidate not sponsored by the Exchange.

Section 4 (1) of the Act requires that every employer in every establishment of a Public Sector shall notify the vacancy to an Employment Exchange as prescribed by the rules. Sub-sec. (3) of Sec. 4 similarly requires an establishment in a private sector to compulsorily notify the vacancies in its establishment if a in the official Gazettee.

It is not disputed, that the Board is an establishment in public sector as defined in section 2 (2) (f) of the Act. If so, it follows that the Board is bound to notify the vacancies arising in the said establishment to the concerned Employment Exchange. But there is no provision in that Act requiring that the Board shall employ only candidates who have been sponsored by the Employment Exchange. Sub-section (4) of Section 4 clearly provides that no obligation shall be deemed to have been imposed upon any employer to recruit any person through the Employment Exchange to fill a vacancy merely because the vacancy has been notified under sub-sections (1) and (2) of Section 4.

Sub-section (4) of Section 4 therefore gives an indication that there is no compulsion on the Board to recruit a candidate, merely because he has been sponsored by the Employment Exchange. The provisions of section 4 are only intended to compel the employer to furnish information to the Employment Exchange with regard to the vacancies arising in its establishment. The failure to notify the vacancies by the Employer is made punishable by section 7 of the Act. But once information with regard to the vacancies has been furnished by the concerned Exchange in accordance with the provisions of section 4, the statutory obligation must be deemed to have been complied with and no further obligation to recruit a person sponsored 6y the Exchange is cast on the employer. The employer has to consider the merits of the persons sponsored by the Exchange and also other eligible persons who directly send their applications for appointment to the posts notified by the employer. Otherwise, a person not sponsored by an exchange will be dedrived of his right to be considered for appointment to be a post under the State. Article 16 (1) of the Constitution provides that there shall be equality of opportunity for all cititizens in matters relating to employment or appointment to any office under the State, and Article 14 of the Constitution confers a right to equality before law and also equal protection of laws. If a person is not considered for appointment solely on the ground that he is not sponsored by the Exachange, it will amount to denial of the right to equality of opportunity in matter relating to employment of appointment. Hence, the action of the 2nd respondent in not calling the petitioner for interview solely on the ground that he was not sponsored by the Employment Exchange is illegal and violative of of the petitioner''s right to equality of opportunity for oppointment and also constitution an invidious discrimination which is not based upon any reasonable classification having rational relation to the object, viz, selection, of Bun able candidates for appointment to the posts advertised or notified by the Board.

It is contended by the learned Government Pleader for the 2nd respondent, that the petitioner''s name was originally registered for the recommended occupation of 903.20 which was latter altered to 922.10 and that the petitioner was sponsored by the Exchange for the post of Supervisor in the Roads & Buildings Department and be was selected and appointed in the said post, and, therefore, he was treated as "placed" and his registration card was transferred from the Live Register to the Dead Register in accordance with the instructions contained in para 7.44 of the National Employment Service Manual, and the petitioner did not reregister his name, and hence, the question of sponsoring the petitioner''s name to the Board for consideration for appointment to the post of Junior Engineer did not arise, as his registration card was no longer in the Live Register.

On the other hand, it is contended by Sri T. Bali Reddy, the learned counsel for the petitioner that he was appointed as a Supervisor only in a temporary capacity under rule 10 (a) (i) of the General Rules for Andhra Pradesh State and Subordinate Services, and that said appointment is liable to be terminated at any timeand, therefore, the Employment Exchange should not have transferred the registration card to the Dead Register and thereby deprive him of the right to be sponsored for a post for which he has been registered in the Exchange. Para 7.44 of the National Employment Service Manual provides as follows:-

"Dead Register:- 7.44-lndex Cards of applicants transferred to the Dead Register due to non-renewal, placing, found work etc., will be filed according to registration numbers or in alpha-: betical order according to names of applicants whichever is considered more convenient by the State Directors; D. G. E&T. will, however, be kept informed. In the Dead Register, Cards transferred during the month will be kept separate in a month''s section and cards transferred during the previous 12 months in a 12 months'' section with Card Separators showing the months to which the cards relate. In the month''s section a well as in each of the 12 months'' section, the cards of applicants placed will be kept separate from others",

According to the aforesaid instructions, the registration card of a person who has been ''placed'' or who was ''found work'' or whose registration has not been renewed, is liable to be transferred to the Dead Register.

The learned Government Pleader contends that even a person sponsored by the Exchange is temporarily appointed, he will be treated as -''placed" according to the definition of "placing" in para 2-1 of the Manual, and, therefore, the petitioner having been appointed as Supervisor though temporarily was treated as ''''placed", and, hence, his registration card was validly transferred to the Dead Register, and his name could not be sponsored once against to the Board for consideration for appointment to the posts of Junior Engineer. If the provisions of the Act are to be construed as precluding the employer from appointing persons other than those sponsored by the Exchange, and instructions in the Manual in para 7.44 are to be construed as precluding a person even though "placed" in a temporary appointment from being sponsored for a regular post under an Employer, they result in depriving the right of a citizen for being considered for appointment or employment, and they are viloative of the rights under Articles 14 and 16 of the Constitution. As already held by me, the provisions of the Act do not preclude the employer from considering for appointment candidates other than those sponsored by the Exchange provided he is eligible and qualified according to the relevant rules. Further, the instructions contained in the National Employment Service Manual are purely administrative or departmental instructions and have no statutory force and cannot deprive a citizen of his right to be considered for appointment to an office under the State.

In the circumstances, it appears to me that it is desirable that the authorities concerned should devise a procedure or make a suitable amendment to the instructions for continuing the name of the registered candidates in the Live Register till the candidate secures an appointment in a permanent capacity or till the candidate informs that his registration card may be transferred to the Dead Register. It may also be desirable to amend the instructions suitably to give notice to the candidate who is temporarily placed, before transferring his registration card from the Live Register to the Dead Register. The procedure prescribed by the National Employment Service Manual results in great hardship to candidates who are temporarily placed but whose cards are permanently transferred to the Dead Register and deprives them of the right to be sponsored for permanent vacancies in the establishment of an Employer when he notified such vacancies in accordance with the provisions of the Act.

In the instant case, the procedure adopted by the Employment Exchange in not sponsoring the name of the petitioner on the ground that his registration card was transferred to the Dead Register, and the action of the Board in not considering the petitioner''s name for appointment to the post of Junior Engineer on the ground that his name was not sponsored by the Exchange, are illegal and vilative of the rights of the petitioner under Articles 14 and 16 of the Constitution, and are also violative of the principles of natural justice. For the foregoing reasons, the writ petition is allowed and a writ of mandamus will issue directing the 1st respondent-Board to consider the application of the petitioner for the post of Junior Engineer on merits and in accordance with the relevant recruitment rules,. In the circumstances of the case, there will be no order as to costs.