High Court Of Andhra Pradesh

Naveen Kumar V. The Chairman and Managing Director, Bharath Dynamics Limited & Another

W.A. NOs. 53 & 436 OF 2010. 21-06-2010

JUDGMENT

(Per Hon’ble Sri Justice Vilas V. Afzulpurkar)

W.A.No. 53 of 2010 is directed against the order of a learned single Judge of this Court, dismissing W.P.No. 25060 of 2009 and W.A.No. 436 of 2010 against dismissal of Review WPMP No. 3755 of 2010 in WP No. 13472 of 2009. Parties and subject matter of both the appeals are same and therefore, they were heard together and are disposed of by this common judgment.

The facts, in brief, are as follows,

Respondents 1 and 2 issued a notification dated 8.6.2009 and also sent a requisition to the respondent No.5-District Employment Exchange Officer, Ranga Reddy district for sponsoring the names of candidates for 99 vacancies in Grade-C including 34 vacancies for the post of JT-Fitter, JT-RM, and JT-Turner. Accordingly the respondent No.5 sent a list to the respondents 1 and 2, but the names of six petitioners in WP No. 13472 of 2009 were not mentioned in the said list. Written test and interview for the said posts were to be held on 12.7.2009 and thereupon the said petitioners approached the respondents 1 and 2 to permit them to be considered, as they are fully eligible and qualified for the said posts. The respondents 1 and 2 expressed their inability as the six petitioners were not sponsored by the respondent No.5 and as such declined to allow them to participate in the selection process. The six petitioners, thereupon, filed W.P.No. 13472 of 2009 contending that they are fully eligible and having requisite qualifications and in spite of holding valid registration with the Employment Exchange, their names have not been sponsored and thereby they were deprived of consideration of their candidature, seeking the following relief,

“For the reasons stated in the accompanying affidavit that the petitioners herein pray that this Hon’ble Court may be pleased to declare the action of the respondents in not considering the case of the petitioner No. 1 to 6 for the selection process to be held on 12-7-2009 or on any other subsequent date for the post of JT-FITTER, JT-RADIO MENCHANI & JT-JURNER GR. C in the company of the respondent No.1 & 2 as illegal, arbitrary and contrary to law and consequently and may be pleased to direct the Respondent NO.1 & 2 herein to issue writ of Mandamus or any other appropriate writ to Consider the case of the petitioner No.1 to 6 for the selection process for the post of JT-FITTER, JT-RADIO MENCHANI & JT-JURNER GR. C vacancies to be hold on 12-7-2009 or any other subsequent date without insisting upon that their names should be sponsored by the Respondent No.5 and appoint the petitioners in the said post and pass such other order or orders as this Hon’ble Court may deem fit and proper”

A learned single Judge, while issuing notice, by order dated 8.7.2009, directed the respondents 1 and 2 to permit all the petitioners to appear for selection process without insisting that their names should be sponsored by the Employment Exchange. The petitioners accordingly appeared for the written test and interview and it is clamed that having been successful thereunder, the respondents 1 and 2 issued a preliminary proposal in favour of the third petitioner, who is the appellant in these two writ appeals. The said preliminary proposal dated 11.8.2009 states that this is only an offer to the post of Junior Technician (Radio Mechanic) and the said proposal makes it clear by a note in the beginning that this is only a preliminary proposal and not a final offer.

Third petitioner thereafter filed a second writ petition vide WP No. 25060 of 2009 seeking implementation of the said preliminary proposal. The relief sought for in the said writ petition is as follows,

“Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed herein the High Court will be pleased to issue any appropriate writ order or direction more particularly one in the nature of writ of Mandamus directing the respondents herein to implement the Preliminary Proposal vide Ref. BDL/C-P & A/PLG. & ED/01/23/KBC-MP dt. 11-8-2009 and appoint the petitioner to the post of Junior Technician (Radio Mechanic) Group-C and Consequently direct the respondents to appoint the petitioner for the post of Jr. Technician (Radio Mechanic) Group-C in the company of the respondents in the interest of justice and equity.”

A learned single Judge heard and dismissed both the writ petitions by separate orders.

Third petitioner in WP No. 13472 of 2009 filed a review petition vide review WPMP No. 3755 of 2010 which was also considered by the learned single Judge on merits and dismissed the same by an order dated 9.4.2010. The said third petitioner who is also petitioner in another WP No. 25060 of 2009 has filed these writ appeals.

We have heard Ms. G. Sudha, learned counsel for the appellant and Ms. Uma, learned counsel representing Mr. K. Srinivasa Murthy, learned standing counsel for the respondents 1 and 2.

The learned counsel for the appellant contended that the appellant had left his earlier job and appeared for the interview and was successful in the said written test and interview which is evident from the fact that he was issued an offer letter dated 11.8.2009. It is also contended that the Employment Exchange did not sponsor his name, though he was duly registered with it, and the error committed by the Employment Exchange in not sponsoring his name should not be allowed to come in the way of his selection. The learned counsel placed reliance on the decision of the Supreme Court in Excise Superintendent Malkapatnam, Krishna District, A.P. Vs. K.B.N. Visweshwara Rao and Ors.( (1996) 6 SCC 216). The learned counsel submits that the said judgment of the Supreme Court was also considered by this Court in WA No. 822 of 2000 dated 10.6.2003 and according to her, the requirements of sponsoring the name of candidate through Employment Exchange cannot be made applicable to the appellant’s case as the factual position of this case is quite different and distinguishable. The learned counsel also makes a grievance against the Employment Exchange in not properly maintaining the seniority of the appellant since 1995 and committed errors in not sponsoring his name. It is also contended that having permitted the appellant to appear in selection process in terms of the interim orders of this Court in WP No. 13472 of 2009 and having issued an offer letter to the appellant, the respondents 1 and 2 cannot discriminate and without assigning reasons, cannot withhold the appellant from joining the said post, as the appellant fulfilled all the requisite qualifications and conditions for the said post. The learned counsel placed reliance upon decisions of the Supreme Court in Roshan Lal Tandon Vs. Union of India (AIR 1967 SUPREME COURT 1899) as well as A.P. Public Service Commission, Hyderabad Vs. B. Sarat Chandra and other(1990) 2 SCC 669) and contended that the review ought to have been allowed by the learned single Judge so far as W.P.No. 13472 of 2009 is concerned and other writ petition WP No. 25060 of 2009 also should have been allowed.

Per contra, learned standing counsel for the respondents 1 and 2 contends that Rule 2.1 of the Recruitment and Promotion Rules, which govern the present case, mandates that the respondents 1 and 2 shall fill up the posts only in accordance with the said rule and accordingly the Employment Exchange was requested to sponsor the names of candidates. She contends that the name of the appellant was admittedly not sponsored by the Employment Exchange and the very relief claimed in W.P.No. 13472 of 2009 being contrary to Rule 2.1 of the Recruitment and Promotion Rules, a writ of mandamus could not be issued contrary to the said Rules. It is also stated that the offer letter, on which the appellant is placing reliance, is only a preliminary proposal and that was made clear in the proposal itself and therefore no right is conferred on the appellant nor the said letter amounts to even an offer. She submits that the appellant was permitted to participate in the selection process only in terms of the interim directions of the learned single Judge in W.P.No. 13472 of 2009, however the said writ petition was later dismissed and as such no legal right can be claimed by the appellant. The learned counsel further submits that the decision of the Supreme Court in Excise Superintendent Malkapatnam, Krishna District, A.P. Vs. K.B.N. Visweshwara Rao and Ors (1st supra), as well as judgment of a Division Bench of this Court in WA No. 822 of 2000, referred to above, were rightly followed by the learned single Judge. Further so far as the review application in WP No. 13472 of 2009 is concerned, the learned counsel states that there is no error apparent on the face of the record warranting review and as such the order of the learned single Judge dismissing the review application also does not suffer from any infirmity.

In the light of these contentions, we have examined the record including the decisions referred to above. Rule 2.1 of the Recruitment and Promotion Rules which govern the present case reads as under,

”All direct recruitment vacancies in wage Groups-10 and below to be notified to the local employment exchanges. Vacancies of scientific and technical nature in wage groups 6 and 7 should be simultaneously notified to the Central Employment Exchanges also. If the employment exchanges are unable to sponsor suitable candidates within the prescribed time limits, the vacancies may be advertised in the press on a local/regional basis. Where adequate number of suitable candidates are not available against local/regional advertisement, the vacancies may be advertised on All India basis.”

A plain reading of the said rule clearly shows that it mandates that the respondents 1 and 2 shall notify all direct recruitment vacancies in the wage Groups- 10 and below to be notified to the local employment exchanges. It also provides that if the Employment Exchanges are unable to sponsor suitable candidates within the prescribed time limits, the vacancies may be advertised in the press on a local/regional basis. The said rule, therefore, prescribes the mode in which direct recruitment vacancies are to be filled up and leaves no discretion to the respondents 1 and 2 to ignore the mandate of the Rule 2.1. The Supreme Court’s decision in Excise Superintendent Malkapatnam, Krishna District, A.P. Vs. K.B.N. Visweshwara Rao and Ors. (1st supra) was considered by a Division Bench of this Court in WA No. 822 of 2000, dated 10.6.2003. The Hon’ble Mr. Justice B. Sudershan Reddy (as His Lordship then was) delivered the judgment on behalf of Division Bench and after noticing various decisions of the Supreme Court including the decision in Excise Superintendent Malkapatnam, Krishna District, A.P. Vs. K.B.N. Visweshwara Rao and Ors. (1st supra), the Division Bench has categorized the following principles,

“1) The Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 does not take away the right of the employer in the public sector to choose its own method of recruitment and to appoint to its service persons other than those drawn from the employment Exchange. The Act does not oblige the employer to consider the names sent to him by the Employment Exchange alone. The employer is free to choose from anywhere. The Act merely commands the employer to notify the vacancies, supply information, submit the returns and to provide access to records.

2) The employer is not precluded from issuing public notification inviting applications from the eligible candidates for filling up of the posts and considering the applications so received along with the applications of the candidates sponsored by the Employment Exchange.

The Division Bench, in the aforesaid judgment considered the clause (g) of Chapter 23 in State Bank of India Reference Book on staff matters, Volume II, which specifically mentions about the recruitment to subordinate cadre and clause (g) reads as follows:

"Recruitment of subordinate staff, where needed, should be made subject to the above instructions, only through the Employment Exchanges as per Government directives. However, guards/ watchmen will be appointed from out of ex-servicemen only who have been honourably discharged from service. The sources of manpower for appointment of guards/watchman are given in paragraph 29.9 of Chapter 29."

The ratio laid down by the Supreme Court in Excise Superintendent Malkapatnam, Krishna District, A.P. Vs. K.B.N. Visweshwara Rao and Ors. (1st supra) was considered by the Division Bench, apart from other decisions and the Division Bench held as follows,

“In our considered opinion, the decision of the Supreme Court in Visweshwara Rao (1 supra) does not deal with the said situation. The Supreme Court, in fact, had not gone into this aspect of the matter. In the case on hand, the regulations of the Bank command that the recruitment of subordinate staff, where needed, should be made subject to the instructions, only through the Employment Exchanges as per Government directives. This rule/regulation is not impugned on the ground of any constitutional vice. The appellant-bank being the employer is precluded from considering the candidature of any other candidate except the candidature of the candidates sponsored by the employment exchange. It would have been a different matter altogether had the regulations/rules were silent in this regard. In such a situation, the ratio laid down by the Supreme Court in Visweshwara Rao (1 supra) would come into play whereby employer is required to issue a public notification inviting applications and consider the cases of those applicants also along with the candidates sponsored by the employment exchange.

In our considered opinion, it is for the concerned authority to decide whether they wish to call the candidates from open market or from the employment exchange or from both sources for a selection by them. If the employer decides to adopt both the courses, it cannot be precluded from doing so. But if the employer decides to restrict his choice to the candidates sponsored by the employment exchange, the same does not offend Articles 14 and 16 of the Constitution as has been held in Hargopal (4 supra).

It is too well settled and needs no restatement in our hands that a writ of Mandamus does not lie compelling the State or its instrumentalities to act contrary to law. This Court in exercise of its jurisdiction under Article 226 of the Constitution of India cannot issue any writ, order or direction compelling the State or its instrumentalities, as the case may be, to violate law. Such directions, in our considered opinion, may result in destruction of rule of law. “

It was, therefore, ultimately held that no writ of mandamus lies compelling the employer to act contrary to its own regulations or rules and to consider the cases of those who submit applications directly on their own accord along with the candidates sponsored by the employment exchange, even though the rules or regulations prohibit such consideration. It was further held that in case there is no such restriction imposed by the regulations or rules, the employer is bound to follow the procedure in terms of the directions issued by the Supreme Court in Excise Superintendent Malkapatnam, Krishna District, A.P. Vs. K.B.N. Visweshwara Rao and Ors. (1st supra) and in case the rules or regulations themselves provide for recruitment only from out of the candidates sponsored by the employment exchange, the employer is not required to issue any notification inviting applications and get the same published in the newspapers and consider those applications along with the candidates sponsored by the employment exchange.

In the present case also, as per Rule 2.1 of the Recruitment and Promotion Rules, extracted above, the only method stipulated in the Rules was through employment exchange and admittedly the appellant’s name was not sponsored by the employment exchange. The learned single Judge, therefore, rightly declined to grant the writ of mandamus sought for by the appellant in WP No. 13472 of 2009. In fact, the prayer in the said writ petition of the appellant and others was that their candidature should be directed to be considered without insisting upon their names being sponsored by the employment exchange and appoint them to the post. Such a relief would be directly opposed to the mandate of Rule 2.1 of the Recruitment and Promotion Rules. The learned single Judge, therefore, dismissed the writ petition and while considering the review petition, the learned single Judge has reiterated the same view and merely because the preliminary proposal was issued to the appellant, that by itself would not give any legal right to the appellant. The learned single Judge also held that even with respect to apprentices also, no right can be claimed to the post and accordingly dismissed the review petition holding that there was no error apparent on the face of the record warranting review of the order passed in writ petition.

So far as the decision of the learned single Judge in W.P.No. 25060 of 2009 is concerned, the said writ petition only sought enforcement of the said preliminary proposal and having held that the said preliminary proposal does not confer any right, the said writ petition was also dismissed as the appellant was admittedly not sponsored by the employment exchange.

We cannot also accept the contention of the learned counsel for the appellant that there was any error committed by the employment exchange in not sponsoring the name of the appellant. In fact, the appellant did not seek any relief in that regard in either of the writ petitions. While the relief claimed in W.P.No. 13472 of 2009 was for consideration of the appellant’s candidature without insisting upon his name being sponsored by the employment exchange, the contention now urged by the learned counsel for the appellant is beyond the relief claimed in WP No. 13472 of 2009. Further in WP No. 25060 of 2009, neither the employment exchange authorities were impleaded as respondents nor any relief with regard to non-sponsoring of the name of the appellant was sought for. The contention of the appellant, therefore, as to whether the employment exchange authorities have wrongfully excluded the appellant’s name from being sponsored etc., was not in issue in either of the writ petitions and as such the said contention cannot be considered in these appeals.

We also do not find any error apparent on the face of the record or any other sufficient cause made out by the appellant seeking review of the judgment of the learned single Judge in W.P.No. 13472 of 2009 and the dismissal of the review petition by the learned single Judge is, therefore, clearly sustainable and not open for interference. Similarly the preliminary proposal which was sought to be enforced by a writ of mandamus in WP No. 25060 of 2009 was also rightly declined by the learned single Judge as the said proposal does not confer any right, whatsoever, on the appellant. The candidature of the appellant being contrary to Rule 2.1 of the Recruitment and Promotion Rules, extracted above, no mandamus can be issued to the respondents 1 and 2 to consider his candidature and appoint the appellant. Both the writ appeals are, therefore, misconceived and are liable to be dismissed.

Accordingly, both the writ appeals are dismissed. No costs.

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