TMI Blog1987 (4) TMI 491X X X X Extracts X X X X X X X X Extracts X X X X ..... t the Act casts no obligation either on the public sector establishment or on the private sector establishment to make the appointments from among candidates sponsored by the Employment Exchanges only and that any insistence that candidates sponsored by the Employment Exchanges alone should be appointed would be contrary to the right guaran- teed by Arts. 14 and 16 of the Constitution. The learned Additional Solicitor General appearing for the Union of India argued that the object and the scheme of the Employment Exchanges (Compulsory Notification of Vacancies) Act and the instructions issued by the Government of India from time to time left no option to the employers but to confine their field of choice to candidates sponsored by the Employment Exchanges. It was argued that such insistence that appointments should be made from candidates sponsored by the Employment Exchanges only did not offend Arts. 14 and 16 of the Constitution. He also argued that the Act was applicable to Government Establishments also. We may refer to the provisions of the Employment Ex- changes (Compulsory Notification of Vacancies) Act, 1959 without further ado. The title of the Act itself suggests that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctor'. That is the interpretation which the Government itself is advancing before us and that is how the Government has always understood the provision during these three decades as will be evident from the instructions issued by the Government from time to time to which we shall be referring later in the course of our judgment. We are unable to agree with the view of the High Court that the Act is not applicable to Government establishments. Section 3 of the Act specifies posts, vacancies to which the Act does not apply. Section 4 provides for the notification of vacancies to employment exchanges. It is desirable to extract the whole of sec. 4 which is as follows:- 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 ex- changes 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 est ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed a full explanation of the provisions of the Bill. The recommendation of the Committee which he quoted was, Though we have not, for the present, recommended compulsion on private employers to recruit through the employment exchanges, we recommend that they be required on a compulsory basis to notify to the Exchanges all vacancies, other than vacancies for unskilled categories, vacancies of very temporary duration and vacancies proposed to be filled through promotion. The Minister further said, The main thing is that an obligation is being placed that after this legislation becomes operative, from that date, the employer in every establishment in the public 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 so far as the private sector is concerned, there is this further qualification that the Government concern may specify by notification that the employer in every establishment in private sector or every establishment pertaining to any class or category of establishments in private sectors shall, before filling up any vacancy in any employment in that establishment, no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f choice. That is why in his introductory speech, the Minister said, ......... a large number of employers, particularly in similar industrial establishments and in construction works, do not employ any scientific method, but depend for their supply of labour on agents or recruit in a haphazard manner from amongst these assembled at factory gates or at works sites. The methods adopted are not always dictated by a consideration of efficient service, but as more a matter of bestowing patronage and favour. This applies in varying degrees to a large number of employers. The Minister dis- cussed the existing position and anticipated position in the following words:- The Act of notification of vacancies has important consequences. In the first place, so far as the employer is concerned, he will be placed in a position to have a much wider choice for the purpose of selection. Now, what is the present position? Any person knocks at the gate of the factory or the mill or other establishment and from those few who are there they choose. Now it would be possible for them to have a wider area of selection. The names of so many others who may not be able to go and knock at every gate, can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertified that they were unable to supply suitable, candidates. Subsequently in this Ministry's Office Memorandum Nos. 71/49-DGS (Apptts) dated 30th January, 1951 and 71/222/56-CS(C) dated the 14th December, 1956 (copy enclosed). The Ministry of Finance etc. were requested to issue immediate instructions to all quasi- Government institutions and statutory Organisations with which they were concerned asking them to fall in line, as far as possible, with the Central Government establishments in the matter of recruitments, by suitably amending their recruitment rules or adopting Resolutions to achieve this object if necessary. The Ministries were also requested to impress upon these institutions that it was in their own interest as well as in the interest of the country as a whole that recruitment should be made through the Employment Exchanges, as a large number of experienced and trained hands were available on their registers and the need for tapping other sources of recruitment should arise only if the Employment Exchange has certified that they were unable to nominate suitable recruits from their registers. ................................................. .................... ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at they were unable to supply candidates. In office Memorandum No. 14024/2/77-Estt(D) dated April 12, 1977, the Department of Personnel addressed all the Minis- tries/Departments and said, As the Ministry of Agriculture and Irrigation, etc. are aware, in accordance with the instructions issued by the Central Government (vide marginally-noted communications), all vacancies arising under Central Government Offices/establishments (including quasi-Government institutions and statutory organisations), irrespective of the nature and duration (other than those filled through the Union Public Service Commission), are not only to be notified to, but also to be filled through, the Employment Exchange alone and other permissible sources of recruitment can be tapped only if the Employment Exchange concerned issued a non-availability' certifi- cate. There can be no departure from this recruitment procedure unless a different arrangement in this regard has been previously agreed to in consultation with this Department and the Ministry of Labour (Directorate Gener- al of Employment and Training). Similar in- structions are also in force requiring vacan- cies against posts carrying a basi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of employ- ment exchanges is so wide, that it reaches all the corners of this vast country. He argued that it is futile to expect that persons living in distant places could get themselves registered with employment exchanges situated far away. The submission of Shri Parmeshwara Rao is indeed appealing and attractive. Nonetheless, we are afraid we cannot uphold it. The object of recruitment to any service or post is to secure the most suitable person who answers the demands of the requirements of the job. In the case of public employment, it is necessary to eliminate arbitrari- ness and favouritism and introduce uniformity of standards and orderliness in the matter of employment. There has to be an element of procedural fairness in recruitment. If a public employer chooses to receive applications for employ- ment where and when he pleases, and chooses to make appoint- ments as he likes, a grave element of arbitrariness is certainly introduced. This must necessarily be avoided if Arts. 14 and 16 have to be given any meaning. We, therefore, consider that insistence of recruitment through employment exchanges advances rather than restricts the rights guaran- teed by Arts. 14 and 16 o ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
