Uttarakhand High Court
Uttarakhand Public Service Commission vs Km. Seema Lobiyal And Others on 13 May, 2025
Author: Manoj Kumar Tiwari
Bench: Manoj Kumar Tiwari
2025:UHC:3835-DB
HIGH COURT OF UTTARAKHAND AT NAINITAL
HON'BLE JUSTICE SRI MANOJ KUMAR TIWARI
AND
HON'BLE JUSTICE SRI ASHISH NAITHANI
Special Appeal No. 553 of 2017
Uttarakhand Public Service Commission -Appellant
Versus
Km. Seema Lobiyal and Others --Respondents
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Presence:-
Mr. Pankaj Miglani, Advocate for the appellant through video conferencing.
Mr. K.C. Tiwari, Advocate for the respondent no. 1.
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The Court made the following:
JUDGMENT:
(per Hon'ble Justice Sri Manoj Kumar Tiwari)
This intra-Court Appeal is filed by
Uttarakhand Public Service Commission, challenging
the judgment dated 01.05.2017, passed by learned
Single Judge in Writ Petition (S/S) No. 2641 of 2015.
Operative portion of the impugned judgment is
reproduced below:-
"According, the writ petition is allowed. Impugned letter dated
03.11.2015 is quashed and set aside. The Public Service Commission is
directed to recommend the name of petitioner to the appointing
authority. Thereafter, the concerned respondent is directed to consider
the case of petitioner for appointment, if she is found suitable."
2. Learned counsel for the appellant contends
that in the Advertisement dated 06.01.2015, pursuant
to which writ petitioner (respondent no. 1 herein)
applied, there was a stipulation that every candidate
has to be registered with an Employment Exchange;
the writ petitioner/ respondent no. 1 was not registered
with any Employment Exchange within the State of
Uttarakhand on the date of her making application
pursuant to such Advertisement, therefore, she was not
considered for appointment. He, thus, submits that
judgment rendered by learned Writ Court, whereby
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Uttarakhand Public Service Commission was directed to
recommend the name of writ petitioner/respondent no.
1 for appointment, is unsustainable. Learned counsel
for the appellant has drawn attention of this Court to
condition mentioned in Clause 3 of the Advertisement
issued on 06.01.2015, which reads as under:-
"03-mRrjk[k.M fo"ks'k v/khuLFk f"k{kk ¼izoDrk laoxZ½ lsok] lewg ^x^ ds inksa ij HkrhZ gsrq vkWuykbZu
vkosnu Hkjus dh vafre frfFk rd mRrjk[k.M jkT; ds lsok;kstu dk;kZy; esa iathd`r gksuk vfuok;Z
gSA ftyk lSfud dY;k.k ,oa iquZokl dk;kZy; esa iathd`r iwoZ lSfud rFkk jkT;k/khu lsokvksa esa
lsok;ksftr vH;fFkZ;ksa dks iathdj.k dh vko";drk ugha gSA ".
3. Based on the aforesaid Clause, learned
counsel for the appellant submits that candidates were
informed that they should be registered with any
Employment Exchange, within the State of
Uttarakhand, till the last date of submission of
application. However, he concedes that, as per the said
Clause, ex-servicemen and persons already serving in a
State Department, are exempted from the requirement
of such registration.
4. Per contra, Mr. K.C. Tiwari, learned counsel
appearing for writ petitioner/respondent no. 1 submits
that writ petitioner/respondent no. 1 possessed all
necessary qualifications for appointment, as mentioned
in the Advertisement, at the time of making application
and she had applied for appointment as Lecturer
(Sanskrit), against the post reserved for Scheduled
Caste category and although writ petitioner/respondent
no. 1 was permitted to appear in screening test held by
Uttarakhand Public Service Commission, which she
qualified also, yet she was not called for interview, only
on the ground that her name was not registered with
any Employment Exchange. He further submits that
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writ petitioner/respondent no. 1 was registered with
District Employment Office, Bageshwar on 20.11.2008,
and her registration was valid up to December, 2014,
however, due to illness, she could not renew her
registration within three months from the date of expiry
of earlier registration, and when she approached
District Employment Office for renewal of registration,
she was registered afresh. He refers to paragraph no. 9
of the Writ Petition in support of his contention that writ
petitioner/respondent no. 1 was re-registered with
Employment Exchange, Bageshwar on 30.06.2015,
which was valid till June, 2018.
5. Heard learned counsel for the parties, and
perused the records.
6. Employment Exchange are creation of the
Employment Exchanges (Compulsory Notification of
Vacancies) Act, 1959 and, as per provision contained in
Section 4 (1) of the aforesaid Act, every vacancy in a
public sector establishment is required to be notified to
an Employment Exchange. It is not the case of the
appellant that the vacancies in question were notified
to the Employment Exchange, therefore, asking the
candidates to get themselves registered with
Employment Exchange, would be an exercise in futility.
The purpose of registration with Employment Exchange
is to ensure that whenever a public sector
establishment proposes to fill-up any vacancy, then it
can request the Employment Exchange to send the
names of registered candidates, and selection will be
made from only amongst such candidates, who are
sponsored by the Employment Exchange. Vacancies on
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posts which are to be filled by selection through Public
Service Commission are never notified to the
Employment Exchange, therefore, insistence upon
registration with Employment Exchange by the State
Government is without any justification. In a selection
held by an Independent Agency, wide publicity is given
to the available vacancies by issuing advertisement in
newspapers and also by notifying them in the website
which achieves the purpose for which the Act of 1959
was enacted. The object of the Employment Exchanges
(Compulsory Notification of Vacancies) Act, 1959 is to
prevent backdoor appointments made due to nepotism
or favouritism and to ensure that all eligible candidates
get equal opportunity in the matter of public
employment. This purpose is achieved when selection is
held by an Independent Agency, which holds selection
after giving wide publicity to the available vacancies
through advertisement and inviting applications from all
eligible candidates. State and Central governments
make appointments to public posts on the
recommendation of Specialized Selecting Bodies, which
function independently, free from outside interference.
7. In fact, Section 3 of the Employment
Exchanges (Compulsory Notification of Vacancies) Act,
1959 provides that the said Act shall not apply in
relation to certain vacancies, and Sub-Section (1)
thereof, enumerates the vacancies which are outside
the purview of the said Act. Sub-Section (2) (a) of
Section 3 of the aforesaid Act makes it clear that
provisions of the Act shall not apply in relation to
vacancies, which are proposed to be filled-up through
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selection by an Independent Agency, such as Union or
State Public Service Commission. Thus, it is apparent
that provisions of the Employment Exchanges
(Compulsory Notification of Vacancies) Act, 1959
cannot be pressed into service for denying appointment
to a candidate, after his selection by State Public
Service Commission.
8. Section 3 of the aforesaid Act is reproduced
below for ready reference:-
3. Act not to apply in relation to certain vacancies.-- (1)
This Act shall not apply in relation to vacancies--
(a) in any employment in agriculture (including horticulture) in
any establishment in private sector other than employment as
agricultural or farm machinery operatives;
(b) in any employment in domestic service;
(c) in any employment the total duration of which is less than
three months;
(d) in any employment to do unskilled office work;
(e) in any employment connected with the staff of Parliament.
(2) Unless the Central Government otherwise directs by
notification in the Official Gazette in this behalf, this Act shall
not also apply in relation to--
(a) vacancies which are proposed to be filled through promotion
or by absorption of surplus staff of any branch or department of
the same establishment or on the result of any examination
conducted or interview held by, or on the recommendation of,
any independent agency, such as the Union or a State Public
Service Commission and the like;
(b) vacancies in an employment which carries a remuneration of
less than sixty rupees in a month."
9. It is worthwhile to mention here that there is
nothing on record to show that a notification, as
contemplated in Sub-Section (2) of Section 3 of the
aforesaid Act, was issued by the Central Government.
Learned counsel for the appellant also concedes that
such notification was not issued by the Central
Government for bringing the selection, held by
Uttarakhand Public Service Commission, within the fold
of Employment Exchanges (Compulsory Notification of
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Vacancies) Act, 1959.
10. Section 4 (1) of the aforesaid Act provides
that the employer in every public sector establishment
in that State or area shall notify vacancy to such
Employment Exchanges, as may be prescribed. The
said provision was meant to ensure equality of
opportunity in the matter of employment under the
State. At the time of enactment of the aforesaid Act,
there was no full proof mechanism for providing equal
opportunity to persons desirous of seeking appointment
to public posts, and Employment Exchange was
conceived as a bridge between employer and the
persons looking for employment opportunity. However,
these days, when selection for appointment to a public
post is held by Independent Agency, e.g. State Public
Service Commission, insistence upon registration with
Employment Exchange, appears to be unwarranted. In
case of selection through Union Public Service
Commission, or State Public Service Commission, the
vacancies are notified in newspapers and anyone, who
is eligible as per laid down norms, has a right to apply.
Thus, equality of opportunity is inherent in a selection
held by Union or State Public Service Commission,
which are independent authority created under Article
315 of the Constitution of India.
11. It is nobody's case that the vacancies in
question were notified to the Employment Exchange, in
terms of provision contained in Section 4 (1) of the
aforesaid Act, therefore, rejection of candidature of writ
petitioner/respondent no. 1, only on the ground that
she was not sponsored by an Employment Exchange, is
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unjust and unsustainable.
12. Hon'ble Supreme Court in the case of "Union
of India and Others vs. Pritilata Nanda", (2010)
11 SCC 674, held as under:-
"16. In our opinion, there is no merit in the arguments of the
learned Additional Solicitor General. In the first place, we consider it
necessary to observe that the condition embodied in the advertisement
that the candidate should get his/her name sponsored by any special
employment exchange or any ordinary employment exchange cannot
be equated with a mandatory provision incorporated in a statute, the
violation of which may visit the person concerned with penal
consequence.
17. 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.
Section 4 of the 1959 Act, which provides for notification of vacancies
to employment exchanges reads as under:
"4. Notification of vacancies to employment exchanges.--(1)
After the commencement of this Act in any State or area thereof,
the employer in every establishment in public sector in that State
or area shall, before filling up any vacancy in any employment in
that establishment, notify that vacancy to such employment
exchanges as may be prescribed.
(2) The appropriate Government may, by notification in the
Official Gazette, require that from such date as may be specified in
the notification, the employer in every establishment in private
sector or every establishment pertaining to any class or category of
establishments in private sector shall, before filling up any vacancy
in any employment in that establishment, notify that vacancy to
such employment exchanges as may be prescribed, and the
employer shall thereupon comply with such requisition.
(3) The manner in which the vacancies referred to in sub-
section (1) or sub-section (2) shall be notified to the employment
exchanges and the particulars of employments in which such
vacancies have occurred or are about to occur shall be such as may
be prescribed.
(4) Nothing in sub-sections (1) and (2) shall be deemed to
impose any obligation upon any employer to recruit any person
through the employment exchange to fill any vacancy merely
because that vacancy has been notified under any of those sub-
sections."
18. A reading of the plain language of Section 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 this Court examined the
scheme of the 1959 Act and observed: (SCC pp. 313 & 315, paras
4 & 6)
"4. 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, Section 4(4) of the Act, on
the other hand, makes it explicitly clear that the employer is under
no obligation to recruit any person through the employment
exchanges to fill in a vacancy merely because that vacancy has
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been notified under Section 4(1) or Section 4(2). In the face of
Section 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. ...
* * *
6. 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."
19. In K.B.N. Visweshwara Rao case a three-Judge Bench of
this Court considered a similar question, referred to an earlier
judgment in Union of India v. N. Hargopal and observed: (K.B.N.
Visweshwara Rao case, SCC pp. 217-18, para 6)
"6. ... It is common knowledge that many a candidate is unable
to have the names sponsored, though their names are either
registered or are waiting to be registered in the employment
exchange, with the result that the choice of selection is restricted
to only such of the candidates whose names come to be sponsored
by the employment exchange. Under these circumstances, many a
deserving candidate is deprived of the right to be considered for
appointment to a post under the State. Better view appears to be
that it should be mandatory for the requisitioning
authority/establishment to intimate the employment exchange, and
employment exchange should sponsor the names of the candidates
to the requisitioning departments for selection strictly according to
seniority and reservation, as per requisition. In addition, the
appropriate department or undertaking or establishment should call
for the names by publication in the newspapers having wider
circulation and also display on their office notice boards or
announce on radio, television and employment news bulletins; and
then consider the cases of all the candidates who have applied. If
this procedure is adopted, fair play would be subserved. The
equality of opportunity in the matter of employment would be
available to all eligible candidates."
By applying the ratio of the abovenoted judgments to
the case in hand, we hold that the authorities concerned 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."
13. A candidate who meets all eligibility criteria
for appointment to a public post and who is also
declared successful in the selection held by State Public
Service Commission, cannot be denied appointment
only on the ground that his/her name is not sponsored
by an Employment Exchange. In the absence of
notification of vacancy to Employment Exchange, there
is no question of sponsoring of names of candidates by
Employment Exchange. Right to be considered for
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appointment under the State is a fundamental right,
which cannot be denied by the State authorities,
without a valid reason. The reason assigned by the
appellant for rejecting candidature of respondent no .1
does not appear to be valid.
14. Thus we concur with the view taken by
learned Single Judge in the impugned judgment. We do
not find any reason to interfere in the matter. The
Special Appeal, thus, fails and is, accordingly,
dismissed.
15. The appellant was provisionally permitted to
appear in the interview, vide interim order dated
22.12.2015, passed by learned Writ Court. Reportedly
her result is kept in a sealed cover, therefore,
Uttarakhand Public Service Commission is directed to
declare her result and recommend her name for
appointment, if her score of marks in the selection
entitles her to such appointment.
_______________________________
MANOJ KUMAR TIWARI, J.
__________________________
ASHISH NAITHANI, J.
Dt: 13th May, 2025
Shiksha
SHIKSHA
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Date: 2025.05.19 20:19:03 +05'30'
