Kerala High Court
Ummar vs The State Of Kerala on 27 March, 2024
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
WP(C) NO. 2568 OF 2024
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
WP(C) NO. 2568 OF 2024
2
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 -
679303
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
WP(C) NO. 2568 OF 2024
3
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),
WP(C) NO. 2568 OF 2024
4
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 -
679124
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
WP(C) NO. 2568 OF 2024
5
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 -
679104
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
WP(C) NO. 2568 OF 2024
6
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:
WP(C) NO. 2568 OF 2024
7
JUDGMENT
(Dated this the 21st 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
WP(C) NO. 2568 OF 2024
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,
19/04/2023, 20/04/2023 and 25/04/2023. The 3 rd and 4th
respondents started the appointment process on 03/10/2023
from the shortlisted 23 candidates in Ext. P1 list. 8
WP(C) NO. 2568 OF 2024
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
22/04/1982 and G.O(MS) 91/2001/LSGD dated 29/03/2001.
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.
WP(C) NO. 2568 OF 2024
The 5th respondent-Ombudsman passed an order on
28/11/2023, directing the municipality to appoint the
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
WP(C) NO. 2568 OF 2024
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
WP(C) NO. 2568 OF 2024
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
WP(C) NO. 2568 OF 2024
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)
14/1982/LBR dated 22.04.1982 and G.O.(MS) 91/2001/LSGD
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
WP(C) NO. 2568 OF 2024
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
WP(C) NO. 2568 OF 2024
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
WP(C) NO. 2568 OF 2024
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
WP(C) NO. 2568 OF 2024
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
WP(C) NO. 2568 OF 2024
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
WP(C) NO. 2568 OF 2024
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
WP(C) NO. 2568 OF 2024
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
WP(C) NO. 2568 OF 2024
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
WP(C) NO. 2568 OF 2024
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
WP(C) NO. 2568 OF 2024
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
WP(C) NO. 2568 OF 2024
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
WP(C) NO. 2568 OF 2024
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
WP(C) NO. 2568 OF 2024
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
WP(C) NO. 2568 OF 2024
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
WP(C) NO. 2568 OF 2024
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
WP(C) NO. 2568 OF 2024
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
