P.A. Choudary, J.
1. W.P. Nos. 8120 and 8121 of 1984 are filed for the issue of writs of Mandamus to direct Tirumala Tirupathi Devasthanam to interview the petitioners in those writs along with the candidates sponsored by the Employment Exchange, Tirupathi for the post of Attenders without insisting upon the writ petitioners' names being sponsored by the Employment Exchange. Tirumala Tirupathi Devasthanam notified 60 vacancies of Attenders to the Junior Employment Officer, Sub-Employment Exchange, Tirupathi. The qualifications prescribed are just ability to read and write Telugu. The devasthanam requested the Employment Exchange to sponsor candidates in the ration of 1 : 7. The total number of persons who are able to read and write Telugu and who came upto this standard and who were registered with the Sub-Employment Exchange, Tirupathi were at that time 11,939. Of them these petitioners were two.
2. The Sub-Employment Exchange, Tirupathi sponsored 200 candidates registered up to 17-10-1975. But the petitioners' names were not sponsored by the Employment Exchange and they were not called for by the Devasthanam for the interview proposed to the held for selection of applicants for the posts of attenders. The petitioner in W.P. No. 8121 of 1984 had, therefore, sent an application directly to the Devasthanam seeking appointment as an attender, hoping probably to be called for interview. But even then he was not called for interview. These writ petitioners had, therefore, filed these two writ petitions for a direction to issue to the Tirumala Tirupathi Devasthanam directing that body to interview the petitioners along with the other candidates sponsored by the Employment Exchange, Tirupathi for filling the posts of attenders without insisting that the petitioner's names should be sponsored by the Employment Exchange and without insisting that their applications should be routed only through the Employment Exchange.
3. Tirumala Tirupathi Devasthanam filed a counter in which it did not deny the petitioners' assertion that they had directly applied to the Devasthanam for job and that they were not called for interview. But they stated that they were not in a position either to affirm or deny the allegations of the petitioners that they were registered with the Employment Exchange. Registered or not the Devasthanam said they could not interview the petitioners for the attender post because of G.O.Rt. No. 1406/Employment and Social Welfare (G)/department dt. 6-11-1975. The said G.O.Rt. No. 1406 issued by the State Government directed the Pay and Accounts Officers and the Treasury Officers not to pass the first monthly pay bills of any newly recruited employees unless a certificate to the effect that a candidate appointed was sponsored through the Employment Exchange was enclosed to the pay bill by the drawing authority. The above said G.O. is a clear direction issued by the State Government to its subordinate officers not to recruit attenders and the like except through Employment Exchange. In view of the aforementioned G.O.Rt. No. 1406, the Devasthanam pleaded that it cannot interview the candidates who were not sponsored by the Employment Exchange.
4. On behalf of the State Government, the Director, Employment and Training, Hyderabad had also filed a common counter-affidavit in this matter and several other companion matters. In his counter-affidavit he had elaborated the method followed by the Employment Exchanges in sending up the names to the employers and also explained the rationale behind the State policy limiting the recruitment of candidates only to those whose names have been sponsored by the Employment Exchange. It is this counter stand of the State Government that is really required to be considered. In view of the fact that this stand taken by the Government requires to be examined in detail, we quote at some length from the relevant parts of the abovementioned counter-affidavit, filed by the Director, Employment and Training, Hyderabad. In paragraph No. 2 of his counter-affidavit, the Director stated that 'the employment service was utilised to the fullest extent by the Central Government and the State Government ever since its inception in 1948. It is policy of the Government to recruit candidates through the media of Employment Exchange for posts that are not covered by the Service Commission or other statutory recruiting agencies. This is made abundantly clear even during debates by the them Labour Minister while piloting the Employment Exchanges (Compulsory Notification of Vacancies) Bill, 1959 which has become an Act 31/1959'. Further on he said that 'various G.Os. issued from time to time amply establish that the recruitment to the lower echelons of posts not covered by the Service Commission or other recruiting agencies should be only through Employment Exchange.' Further in the same vein he had also stated that 'the cases of the petitioners cannot be considered in view of the fact that they have directly applied for the post even though they have not been sponsored by the Employment Exchange. The contention of the petitioners that the interpretation of S. 4(4) of the Employment Exchange Act that it is enough if the vacancy is notified and that here is no necessity or obligation to recruit from among the candidates sponsored by the Employment Exchange will not fit into the social justice'. The counter-affidavit then relied upon Rule 5. That rule required notification to be made by the employer to the Employment Exchange 15 days in advance and to intimate the result of the selection within 15 days from the date of selection. The Director had also relied on G.O. No. 535. The State Government through its G.O. No. 535 dated 28-6-1975 had reiterated its stand that he recruitment of vacancies carrying a scale of pay of less than Rs. 500/- should be restricted to the candidates sponsored by the Employment Exchange. The Director's conclusion is that if the applications of the candidates are allowed to be received directly by the Employer for consideration of their case for the vacancies along with the candidates sponsored by the Employment Exchange, the entire object underlying the Act 31/59 will be frustrated and defeated apart from violating Arts. 14 and 16 of the Constitution.
5. W.P. Nos. 7932/84, 8095/84, 8032/84, 8107/84 and 8109/84 are the companion writ petitions.
6. In W.P. No. 7932/84 the petitioner prays for the issue of a writ of Mandamus to direct the Inspector General of Prisons to call the petitioner for interview and consider his case for selection to the post of jailor in the existing vacancies without insisting that his name should be sponsored by the Employment Exchange. The petitioner claims to be a graduate and to be fully qualified to be appointed as jailor. He avers that having come to know that there are vacancies in the respondent-office in the category of jailor's post, he had filed an application requesting that he may be called for an interview and be considered for appointment. He was also registered with the Employment Exchange, but not sent for consideration by the Employment Exchange.
7. W.P. No. 8095 of 1984 is filed by two petitioners who registered themselves with the Employment Exchange but had directly applied to the Regional Manager, Andhra Bank, Karimnagar for appointment as attenders, as their names had not been sponsored by the Employment Exchange. The first petitioner in the writ petition says that although his name was registered in the Employment Exchange, Karimnagar as early as in the year 1981, his name was not sent to the Bank and that, therefore, he had directly applied to the Bank for appointment as an attender. As the Regional Manager, Andhra Bank, Karimnagar, had not called him for the interview, the petitioners had filed the aforementioned writ petition. The prayer in the writ petition is that the two writ petitioners should be permitted to appear for the interview to be conducted by the Regional Manager, Andhra Bank, Karimnagar, without insisting upon their names being sponsored by the Employment Exchange.
8. W.P. No. 8032 of 1984 has been filed for the issuance of a writ of Mandamus to direct the District Employment Officer, Chittoor to include the petitioner's name in the list of candidates to be sent by the Employment Exchange to the Excise Superintendent, Chittoor, for selection to the posts of Excise Constable, Chittoor.
9. In W.P. No. 8107 of 1984 the petitioner seeks a writ of Mandamus to direct the respondent-Audit Officer, Local Funds, Chittoor to interview the petitioner along with the candidates sponsored by the Employment Exchange. Chittoor for the post of attender without insisting that his name should be sponsored by the Employment Officer, Chittoor.
10. In W.P. No. 8109 of 1984, the petitioner seeks for the issues of a writ of Mandamus directing the District Registrar, Births and Deaths, Anantapur to interview the petitioner along with the candidates sponsored by the Employment Exchange, Anantapur for the post of Attender without insisting that his name should be sponsored by the Employment Exchange.
11. The point at which the parties are broadly at issue may now be settled. The petitioners argue that the Employment Exchanges (Compulsory Notification of Vacancies) Act of 1959 does not authorise the State authorities to deny or restrict the employer of his freedom to choose his employees from anywhere in the open market and that consequently the above mentioned orders of the Government issued in G.O.Ms. No. 535 dt. 28th June, 1975 and G.O.Rt. No. 1406 dt. 6th November, 1975 restricting the employer's freedom to choose his employees except through the Employment Exchanges is ultra vires of the State power under the abovementioned Act. They, therefore, contend that the respondents acted illegally in refusing their applications. The petitioners admitted that under the provisions of the above Act, an employer is obliged to notify the vacancies that might arise in his establishment to the appropriate Employment Exchange. The petitioners specifically contend that the employer coming under the Act is never put under the further and more onerous obligation to confine his recruitment to the names sent by the Employment Exchanges. Therefore, the petitioners contend that the above orders of the State Government are ultra vires of the authority of the State Government under the Act.
12. On the other hand, the contention of the State authorities is that under the provisions of the above Act, it is legitimate for the State Government to impose such restrictions limiting the right of the employer to choose his employees only through Employment Exchanges and from and out of the names sent by such Employment Exchanges. The State Government thus justifies the validity of the above Government orders.
13. In addition to the above issue, it must be noted that the above issue also raises a more fundamental question which is whether the State Government has any powers at all under the above Act to issue any rules of one kind or other.
14. The above issue is the principal issue of contest between the parties before us and it is the issue that falls for out primary consideration. Our answer to that issue should be based upon the provisions of the Act alone. If that answer of ours is in favour of the petitioners and against the State, then the next question that has to be considered is whether a Mandamus should be issued to the employing authorities to call for the petitioners and interview them. Unlike the first question, this question will have to be decided firstly under the provisions of the Act and nextly under the Constitution. The question whether the petitioner should be called for interview will have then to be decided not only with reference to the provisions of the Act, but also with reference to the applicable constitutional provisions. Even if we hold that the petitioners have no right to be called for interview under the provisions of the Act, that holding would not foreclose the discussion under the heading whether the petitioners should be called for the interview under the provisions of the Constitution. This question, therefore, falls to be considered partly under the Act and mainly under Arts. 14 and 16 of the Constitution.
15. The last and final question is what class of employers fall under the provisions of the above Act and whether the respondents in the various writ petitions are under a legal and/or constitutional obligation to call the petitioners for interview. The first question :
Common Law has admittedly aged and grown old and rickety and stiff in many of her vital joints. For many purposes, she is not malleable enough to serve the needs of the contemporary society. It is for that reason many modern writers have pleaded for discarding the old practice of interpreting statutes as mere deviation form the standards set up by common law. Yet it must be admitted that for our present purposes the fundamental relevance of the basic principle of the common law doctrine relating to the constitution of a contract of employment between two parties cannot be disputed even today. According to that doctrine, origins of initial employment between two persons could be traced to a contract of employment willingly entered into by the parties. In Roshan Lal Tondan's case : (1968)ILLJ576SC , our Supreme Court observed, 'It is true that origin of Government service is contractual. There is an offer and acceptance in every case.' Lord Atkin said in Nokes v. Doncaster Amalgamated Collieries (1940) AC 1014 that it is these contractual origins of employment that mark a servant off from a serf (See also State of Madras v. Rajagopalan, AIR 1955 SC 827 and the cases referred to therein').
16. In examining the primary issue that arises in these writ petitions, it becomes necessary for us to see to what extent the above basic postulates of common law relating to the initial formation of contract of employment are altered or varied by the above Act. For the purpose, we summarise the Act as under.
17. The Employment Exchange (Compulsory Notification of Vacancies) Act, 1959 which was enacted by out Parliement in the year 1959 is a short statute spread over just ten sections. Of the ten Sections of the Act, Ss. 4 and 7 of the Act hold the key to the meaning and purpose of the Act. Section 4 Sub-clause (1) lays down 'the employer in every establishment in public sector' should notify any vacancy in his establishment to an appropriate Employment Exchange. Section 4 and sub-clause 2 of the Act enables the Government to extend this obligation to notify vacancies even to a private employer. By means of a notification, Government can require a private employer to notify vacancies in his establishment. Under S. 5, employers who are under an obligation to notify vacancies, are also required to furnish such information or returns as may be prescribed in relation to the vacancies that have occured or about to occur in their establishment to such Employment exchanges as may be prescribed by rules. Section 6 requires the abovesaid employers to give access to specifically authorised Government Officers to the relevant records or documents in their possession. For that purpose, the authroised officer may even enter the premises of an employer where he believes such records or documents have been stored.
18. It is S. 7 of the Act which provides for the enforcement of the aforesaid statutory obligations imposed on employer under Ss. 4, 5 and 6 of the Act. Under S. 7, an employer who fails to notify the vacancies to the appropriate Employment Exchange as required by S. 4 is liable to be punished by imposition of fine. Such an employer is liable to be punished with imposition of fine if he refuses or neglects to furnish information or returns as required by S. 5 or 6 or impedes the right of access to the relevant records or documents. Refusal to answer or giving false answers or informations or returns is also made punishable by imposition of fine. Section 8, however, requires prior sanction to be obtained for launching of criminal prosecutions for employer's failure to obey Ss. 4, 5 and 6. Section 9 protects all official acts taken in good faith.
19. Under S. 10, the Central Government alone has been given power to make rules for carrying out the purposes of the Act. The sub-clause of S. 10 enumerates some of those purposes. Under those enumerations, the Central Government may specify the Employment Exchange or Exchanges to which the vacancies shall be notified by an employer. The form and manner in which and the time within which those vacancies should be notified by an employer can also be prescribed by the rules made by the Central Government. Similarly by those rules, the Central Government can prescribe the manner in which and the intervals at which the information and returns required under S. 5 shall be furnished and the particulars which those returns should contain. The officers by whom and the manner in which the right of access to the documents and the right of entry may be exercised can also be prescribed by the abovesaid rules.
20. Of the remaining three Sections, S. 2 is a definition Section. It defines certain terms and words used by the Act while S. 3 enumerates the vacancies to which the provisions of the Act do not apply at all. Of the words and the terms defined by S. 2, the following words are of interest to us. The word Employment Exchange' is defined to mean any office or place established and maintained by the Government for the collection and furnishing of information, either by the keeping of registers or otherwise respecting persons who seek to engage employees, persons who seek employment and vacancies to which persons seeking employment may be appointed. The word 'establishment' is defined to mean any office or any place where any industry, trade, business or occupation is carried on. The word 'establishment in public sector' is defined to mean as an establishment owned, controlled, or managed by the Government or a department of the Government, a Government company as defined in S. 617 of the Companies Act. 1956, a Corporation (including a cooperative society) established by or under a Central, Provincial or State Act, which is owned, controlled or managed by the Government and a local authority. The word 'establishment in private sector' is defined to mean an establishment which is not an establishment in public sector and where ordinarily twenty-five or more persons are employed to work for remuneration.
21. The above summary of the Act leaves no scope whatsoever for any serious argument to be advanced taking away the employer's freedom to choose his employees from any source or confining his choice only to those names sponsored by the Employment Exchange. In fact, the Act does not deal even remotely with the subject of curtailing employer's choice to recruit his work force. Curtailment of employer's choice in recruiting his work force involving major changes in the common law concept of contract of employment requires the law to be clear and specific. If the object of the Act is to restrict or curtail the employer's freedom to choose his employees from the open market, one would, therefore, expect the Act to say so in express terms unambiguously declaring that the Employment Exchange should send up the names of persons registered with it to the employer and that the employer should choose his employees only from those names.
22. There is no such provision to be found anywhere in the Act to that effect. On the other hand S. 4 sub-clause (4) expressly preserves the right of employer to recruit any person. For those reasons, we hold that the requirements of the Act are fully met by the employer by his notifying the vacancies in his establishment and furnishing information about them submitting periodical returns. In other words, what Ss. 4, 5 and 6 openly require the employer to do is all that the Act intends him to do. Beyond those express obligations, we are of the opinion, that the plain language of the Act is incapable of being understood as authorising imposition of any further obligations on the employer either to consider the names sent up by the Employment Exchange or confine the employer's recruitment choice to those names sent up by the Employment Exchange or to forbid the employer from recruiting his work force from outside those names.
23. It is significant to note that the statute does not even require in express terms Employment Exchange to send up any names to employer. It is even greater significance that S. 7 selects for awarding punishment by the method of imposition of fine only that conduct of employer leading to his failure to carry out his obligations arising under the above Ss. 4, 5 and 6. No other act of the employer is dealt with by the Act nor made the concern of the Act. Clearly the Act does not make it an offence for the employer to refuse to select the names sent up by the Employment Exchange or to recruit his work force from outside those names. One cannot assume that such vast changes of law restricting or annihilating the rights of the employer are intended to be brought about by subordinate legislation. In our opinion, those considerations can lead only to one conclusion that it is not the intention of the Act to restrict or curtail employer's choice to recruit his work force from anywhere or by any method.
24. The self-description of the Act by its title as an Act to provide for the compulsory notification of vacancies to employment exchanges. in our view, fortifies the above conclusion. We are of the opinion that the Act intends the Employment Exchange merely to collect information from the employers relating to the employment openings available with them and disseminating that information among those seeking employment. It mainly acts as an official registry. At best Employment Exchange may be held, by implication of law, to be empowered to send up the names registered with it to the employers. But in our opinion, that would not prevent anyone whether registered with Employment Exchange or not registered with Employment Exchange to apply directly to the employer for a job. At any rate, the Act does not forbid making of such applications. Nor does the Act take away the liberty of the employer to choose his employees otherwise than through Employment Exchange.
25. We find it impossible to accept the argument of the learned Advocate General to the effect that the Act constitutes the Employment Exchanges as the recruiting agency for the employers. The question is not one of desirability of having such arrangement but one of power. The constitution of a recruiting agency for employer seriously undermines the rights of the employer to adopt his own methods of recruitment. That would require the express sanction of law. No provision of the Act clothing the Employment Exchange with authority to act as recruiting agency for the employer exercising the powers of filtering the claims of the job-seekers and denying the employers' unrestricted freedom to act as their own recruiting agencies is to be found. For that reason alone, we cannot accept the argument of the Advocate General.
26. The learned Advocate-General admitted that the Act does not impose any specific obligation on the Employment Exchange to send up names to the employers for consideration. But he relied on Chapter 9 of National Employment Service Manual which contemplates the sending up of such names. We have already noted that the National Employment Service Manual is not law. It must, therefore, be held that it is wholly inadequate to bring out these profound alterations in the legal rights of the employers. In our system of constitutional jurisprudence, law alone can bring about such changes because law alone is recognised as the source of power. Accordingly we hold that he directions of the Employment Service Manual to Employment Exchange to send up the registered names to the employers to consider those names are without legal force. The result is the right of the employer to recruit the employees of his choice is left unimpaired. Under the Act, therefore, the employer, after notifying the vacancies, is left free to choose his employees from any source he decides upon.
27. In an unreported judgment in Umamaheswara Rao v. District Employment Officer, Nizamabad (W.P. No. 43591/77 dt. 1st February 1979) one of us (P. A. Choudary, J.) upheld the validity of appointment made to the Agricultural Development Bank of Madnoor, Nizamabad District otherwise than through Employment Exchange. In that case, the employer did not even notify the vacancies to the local Employment Exchange before making the impugned appointment. Following the judgment of Karnataka High Court reported in Narasimha Moorty v. Director of Collegiate Education [1967-II L.L.J. 606] the above decision of this Court upheld that appointments on the ground that the validity of the appointments is not detracted from failure to notify.
28. In Sankara Reddy v. A.P.S.E. Board (1979) 1 Andh LT 404 Ramachandra Rao, J. (as he then was) noted S. 4 Sub-clause (4) of the Act and held that the instructions contained in National Employment Service Manual are 'purely administrative or departmental instructions and have no statutory force.....' Earlier in the judgment, the learned Judge also observed that 'But there is no provision that Act requiring the Board (referring to the A.P.S.E. Board) shall employ only candidates who have been sponsored by the Employment Exchange.' In our view these judgments hold that the Act does not infringe upon the liberty of the employer to choose his employees even from outside the names sent up by Employment Exchange. Those judgments also uphold the right of any applicant to apply for a job directly. We agree with the view taken by the above two decisions.
29. From the above, it should be held that the employers in these cases would be acting under a serious misapprehension in refusing to consider the names of applicants for employment solely for the reason that those names were not sent up by an Employment Exchange. We accordingly hold on the first question that the respondents are not justified in law in contending that the employer's field of choice to select their employees or method of recruitment their employees is, in any way, limited by the Act. We also hold that the employer's choice is not at all confined to those names sent by the Employment Exchange and that they are not debarred by law from considering the claims of petitioners for appointment only for the reason that their names are not sent up by the Employment Exchange or for the reason that they have directly applied to the respondents seeking appointment.
30. It also follows that all orders of the Government either of the State or of the Centre curtailing the liberty of employers to appoint men of their choice are ultra vires of the powers of the Governments under the provisions of the above Act. Particularly we find G.O.Ms. No. 535 issued by the State Government to be the most offending order in this respect. It restricts the employers' right to recruit to certain class of subordinate services except through Employment Exchanges and forbids selection of outside candidates without first obtaining non-availability certificates from the Employment Exchange or exhausting three consecutive panels sent by the Employment Exchange. To a similar extent G.O.Rt. No. 1406 takes away the liberty of the employer. For the reasons mentioned above, we declare both these G.Os. to the extent indicated above to be ultra vires of the rule making powers of the State Government.
31A. There is also an additional reason why these G. Os. should be declared invalid.
32. The State Government has not been given by the Act any authority to make such rules. Under the Act, there are only two provisions under which subordinate legislation is authroised to be made. They are S. 5 & S. 10 of the Act. Under S. 10, State Government has no power to make rules. Under that Section, only Central Government can make rules. But under S. 5, a State Government is given limited rule making power. So long as the State Government is the appropriate Government, it can, no doubt, make subordinate legislation. But that power given under S. 5 to make subordinate legislation is greatly restricted to the topics specified in that Section and does not take the powers to make rules forbidding an employer to choose his employees or directing the employer not to recruit from outside unless he fulfils the condition of obtaining non-availability certificate from the Employment Exchange or exhausting three panels sent by the Employment Exchange can be made. For reason also, we hold the above G.Os. issued by the State Government to be invalid.
33. The second question :
Should mandamus be issued to the various respondents to consider the applications made by the various writ petitioners directly and on their own to the employers
34. The judgment of Jeevan Reddy, J. in Mastan Rao v. Excise Department (1984) 2 Andh LT 79 : (1984 Lab IC 1218) was not concerned with the question, to what extent, if any, the employer's liberty to choose his employees is taken away by the Act. That judgment has, therefore, no bearing on the first question which we have discussed above. The decision of Jeevan Reddy, J. is more on the meaning of Arts. 14 and 16 of the Constitution and has a direct bearing on the second question. On the basis of an assumption that Arts, 14 and 16 of the Constitution do not require the employer to give publicity of vacancies through press ad that yet they do require the employer to give some minimum of publicity of the vacancies to the prospective applicants that judgment raised and considered two questions namely (1) Whether notifications of vacancies by the employer to the Employment Exchange is an adequate mode of giving publicity within the meaning of Arts. 14 and 16 of the Constitution (2) Whether the employer is under any constitutional obligation to consider every application received by him for employment including such of those applications received by him otherwise than though the Employment Exchange and otherwise than in response to public advertisement of the vacancies The learned Judge held that notification of vacancies to the Employment Exchange satisfies the constitutional rule of requiring minimum publicity. On the second question, the learned Judge held the employer is not under an obligation to consider applications received by him otherwise than through the Employment Exchange and otherwise than in response to public advertisement of the vacancies.
35. In view of the conclusion which we have reached above holding that the employer's obligation under the Act does not extend beyond notifying vacancies, furnishing information and giving access to records, the question of issuing mandamus to the employer compelling him to consider petitioner's applications for appointment cannot arise for consideration under the Act. Such question can, however, legitimately arise under Arts. 14 and 16. But we wish to observe that it cannot be the meaning of Arts. 14 and 16 that every application for appointment howsoever and whensoever received by an employer should be considered by the employer. The cases which have held that Art. 16 guarantees the right to be considered should, in our opinion, be understood as being applicable only to consideration of those applications which are received by the employer through the proper and regular channels.
36. In other words, it is not open of an applicant to make an application for a job at any time through any channel and then compel the employer to consider the same. But where the applications for appointment have been made by applicants and received by the employer through proper and regular channel, the public employer under Arts. 14, 16 would not be justified in considering some of them while refusing to consider the other. In other words, Art. 16 would ensure equality of consideration to all properly received applications. The substantial question in this context would be, what should be considered as the proper method for receiving applications by the employer. This question is incapable of being answered in general and universal terms applicable to all situations. What can be said to be an adequate and proper method in one situation may not be considered as an adequate and proper method in another situation. But it can be said that where the public employer adopts secretive or arbitrary and irregular methods for inviting applications, an aggrieved job-seeker can legitimately make a complaint to a Court of Law under Arts. 14 and 16.
37. But then his application to the Court should not be for the purpose of compelling the employer to consider applications already made following such forbidden methods but can only be for compelling the employer to receive applications adopting a reasonable and fair method. The question of compelling the public employer to consider the applications made seeking employment would arise only in those circumstances where the applications are received through legitimate, regular and proper channel. In other situations and circumstances directing the employer to consider the applications received by him would result in conferring favours even on those few who applied to the employer adopting secretive methods. Such results would clearly be repugnant to Art. 16 the soul of which lies in ensuring equity and fairness and equality of opportunity to all citizens in public employment. This Court, therefore, cannot direct the consideration of the applications of the fortuitous some who might have stolen a march over their unsuspecting rivals.
38. The next question that arises is whether this Court can issue mandamus the employer to consider the applications received by him through the Employment Exchange On the basis of the finding in Mastan Rao's case (supra) notification to the Employment Exchange constitutes giving of adequate publicity about the vacancies to the prospective applicants. On that premise, it would be logical to hold that the refusal of the employer to consider applications received through such methods would be unjustified and to issue mandamus compelling the employer to consider the applications received by him through the Employment Exchange. But the question is whether the Court would be justified in considering notification to Employment Exchange as an adequate mode of publicity. The question whether a particular mode of publicity is an adequate mode of publicity is a question of fact. There is irrefutable evidence furnished by the Act itself to show that the above finding in Mastan Rao's case (1984 Lab IC 1218) (mentioned supra) cannot be accepted to be correct.
39. The evidence of S. 4, Sub-clause (4) of the Act shows that notification to the Employment Exchange is not considered by the Parliament to be an adequate mode of giving publicity to the vacancies. It can only be on that basis S. 4, sub-clause (4) of the Act preserves the employer's liberty to choose his employees outside the names sent by Employment Exchange. There is understandable reason for this view of the Parliament. Parliament must have been aware of the fact that in a vast country like ours, the few Employment Exchanges situated in a few selected urban areas would not be adequate to serve the employment needs of our millions. Parliament could not have intended to confine the employment opportunities only to those who live in or around the District Headquarters and shut off the employment opportunity to others. That is why sub-clause (4) of S. 4 of the Act preserves the right of an employer to choose his employees from anywhere. If notification to Employment Exchange is considered to be an adequate mode of giving publicity. Parliament ought not to have permitted such recruitment to take place otherwise than through the Employment Exchange. We are, therefore, of the opinion that notification to Employment Exchange cannot be treated as an adequate mode of publicity. Accordingly, we hold that no mandamus can issue to an employer to consider the applications received by him only through the Employment Exchange. The second question is accordingly answered against the petitioners.
40. The Third and Last Question
41. The last and final question to be decided is, to whom does the Act apply This question assumes importance because on the answer to that question depends the extent of applicability of the Act to the respondent. The learned Advocate-General argued that to every one of the respondents the Act applies including Government offices. But in our view, the language of the Act does not support such a wide submission. Section 4 of the Act speaks of an employer in 'every establishment in public sector' as falling under the provisions of the Act. The words 'establishment in the public sector' are defined to mean as to take in only establishments owned, controlled or managed by the Government or a department of a Government etc. That definition treats an establishment as one entity and the Government or the department of the Government as another and different entity. The definition treats these two entities as distinct and different from one another.
42. The concept of ownership, control or management postulates bilateral relationship between such entities. That definition cannot take in Government offices or offices in the Government departments because they are not two separate entities. Government offices which are either in the Central Secretariat or Directorates or in the various districts and taluks cannot be treated as separate entities because they are part of the Government itself. Such office cannot, with any degree of appropriateness, be called as owned or controlled or managed by Government or by any particular department of the Government. Willoughby in his Constitutional Law (Students Edition) at P. 6 described the 'Government' in the following words :
'A Society viewed as a politically organized group is termed a Body-Politic or State. The complexus of organs or agencies through which the State performs its functions are termed its Government.'
43. From a legal point of view, one part of the Government cannot be said to be owned, controlled or managed by another part of the Government. All parts of Government are one single entity and are owned, controlled and managed by and according to law. It follows that the vacancies in posts of Jailor, Excise Constable, or the posts in the office of audit department or in the office of the District Registrar cannot be treated as vacancies in establishment of a public sector owned, controlled and managed by the Government or one of its departments.
44. The use of the word 'public sector' by the Act also leads to the same conclusion. The word 'public sector' is used in contradistinction to the words 'private sector', 'joint sector' etc. The organizations in these sectors are generally commercial organizations or public utilities and do not refer to offices of the Government exercising State Powers. A Government office exercising sovereign powers can only be in a Government sector and cannot be in any other sector.
45. There is yet another reason for holding that the Government offices do no fall within the purview of the Act. We have already seen that the Act makes the employer of an office coming under the Act criminally liable for his failure to notify the vacancies and also for this failure to submit the returns and the information. What is more, such an employer is required by the Act to provide access to the relevant records stored in his office. The clear implication of the Act is that the places where the relevant records are stored can be opened by force. It would be somewhat of an anomaly to hold that these provisions would be applicable to the Government offices with the consequence that one Government officer can break into the office of a Collector or Board of Revenue for collection of information.
46. The result of the above discussion may now be summarised.
47. On the first question, we hold that the Employment Exchanges (Compulsory Notification of Vacancies) Act of 1959 does not take away the liberty of the employer either in the public sector or in the private sector to choose his own method of recruitment and to appoint to his services persons other than those drawn from the Employment Exchange. The employer is not right in refusing to consider the applicants' names on the ground that those names are not sent by the Employment Exchange. Nor does the Act oblige the employer to consider the names sent to him by the Employment Exchange. He is free to choose from anywhere. All that the Act requires the employer to do is to notify the vacancies, supply information, submit the returns and to provide access to records. The Government has not been given any power to issue G.O.Ms. No. 535, dated 28th June, 1975 and G.O.Rt. No. 1406, dated 6th November, 1975. We therefore, declare them to be void. The directions in the National Employment Service Manual are only of executive character.
48. On the second question, we hold that the Arts. 14 and 16 of the Constitution do not require the public employer to notify the existence of vacancies in his establishment through the daily press. But the public employer under Art. 16 is under an obligation to choose a reasonable and fair method of notifying the vacancies to the general body of intending applicants. What is reasonable and fair method of notification is a question of fact and varies from case to case. But it cannot include totally unreasonable methods. Notification of vacancies to the Employment Exchange is not regarded by the Act itself as a reasonable, fair and adequate means of notifying the existence of vacancies. For that additional reason also, the names sent by the Employment Exchange cannot be directed by this Court to be considered. No Mandamus can issue from this Court compelling the public employer to consider only the applications received by him privately.
49. Finally the Government offices and the vacancies in those offices are outside the purview of the Act.
50. For the above reasons, we dismiss all these writ petitions but we make no orders as to costs. Advocate's fee Rs. 250/-.
Jagannadha Rao, J.
I agree with the judgment of my learned brother Choudary, J., and the conclusions arrived at by him. I would however add the following :
On the first question I agree that the Act was intended to provide only for the compulsory notification of vacancies by the employers to the Employment Exchange concerned. These Exchanges act as an official registry and at best they may send up the names of the candidates to the employers concerned, by way of information. There is no obligation imposed upon the employer to recruit the persons sponsored by the Employment Exchange. This is clear from the provisions of S. 4(4) of the Act which read as follows : 'Section 4(4) : Nothing in sub-secs. (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.'
51. I agree that except the duty to notify the vacancy position, there is no other obligation on the employer. That is why under S. 7, the failure to notify vacancies alone is made punishable. The Employment Exchange cannot, in my opinion, be treated as a recruitment agency and that was not the intention behind bringing in the Statute. There is no provision in the Act which restricts or takes away the right of the employer to choose the best person from the open market. On the other hand such a power is expressly preserved in S. 4(4) above referred to. Any administrative instructions, State or Central, which run contrary to the provisions of S. 4(4) and which impose any obligation on the employer to select only from among the candidates sponsored by the employment exchange are therefore clearly ultra vires. I agree with the views expressed by Ramachandra Rao, J. (as he then was) in Sankara Reddy v. A.P.S.E. Board (supra), and by my learned brother Choudary, J. in the unreported judgment in Umamaheswara Rao's case, in so far as the power of the employer to appoint a person of his choice is concerned.
52. Coming to the second question, it cannot be denied that Art. 14 of the Constitution enjoins upon the State not to deny to any person equality before the law or the equal protection of the laws. Art. 16 of the Constitution specifically ensures equality of opportunity for all citizens in matters relating to employment or appointment under the State. Under S. 4(1) of the Act, there is an obligation upon the employer in every establishment in the Public Sector to notify vacancies. The provisions of S. 4(2) of the Act enable the appropriate government to require employers in every establishment in the Private Sector etc. to notify vacancies. Section 3 excludes certain categories from the purview of the Act.
53. Under S. 2(f) establishment in Public Sector means an establishment owned, controlled or managed by (1) the Government or a department of Government, (2) a Government company as defined in S. 617 of the Companies Act, 1956, (3) a Corporation (including Co-operative Society) established by or under a Central, Provincial or State Act, which is owned, controlled or managed by the Government and (4) a local authority.
Section 2(g) defines establishment in the Private Sector.
54. I agree with my learned brother Choudary, J. that the Act does not apply to employment directly under the Government. In other words, the obligation to notify vacancies in cast only upon establishments in Public Sector and notified private establishments as provided in Ss. 3 and 4 of the Act.
55. So far as establishments in the Public Sector are concerned, it will be noted that the various establishments mentioned in S. 2(f) of the Act clearly fall within the meaning of the word 'State' in Art. 12 of the Constitution. For filling up vacancies in these establishments Arts. 14 and 16 clearly apply. In Rajagopala Reddy v. A.P.S.E. Board [1984-II L.L.J. 176], a Division Bench of this Court of which one of us (Jagannadha Rao, J.) was a party held that though at its inception there is a contract between the employer and the employee, the contract of employment gets transformed from the position of a contract into that of status, on account of its being governed by the rules or regulations applicable to the employees of the Public Sector undertaking. Even in case there are no such regulations, the very fact that the rights of the parties are governed by Arts. 14 and 16 of the Constitution shows that the employment is governed by constitutional provisions which confer a special status on the employee.
56. With regard to employment in the Public Sector undertakings, it is clear from the decisions of the Supreme Court that vacancies cannot be filled without giving due publicity before they are filled. A Constitution Bench of the Supreme Court has held in B. N. Nagarajan v. State of Mysore as follows :
'If the Government advertises the appointments and the conditions of service of the appointments and makes a selection after advertisement, there would be no breach of Art. 15 or Art. 16 of the Constitution because everybody who is eligible in view of the conditions of service would be entitled to be considered by the State.'
Again in Nanjundappa v. Thimmaiah, [1972-I L.L.J. 565] their Lordships of the Supreme Court observed that due publicity is a mandatory requirement. They observed (para 24) :
'Again, if it were a case of direct recruitment one would expect proper materials for the direct recruitment. There should be advertisements for the post. Candidates have to be selected. Their respective merits have to be considered.'
and again (in para 34) :
'If the respondent were to be appointed by direct recruitment, there should have been advertisements. Then others would have the opportunity of applying. That would be proper selection.'
57. Though the Supreme Court had used the words 'advertisements' I am of the view that what their Lordships meant was that due publicity is to be given before filling up posts by organisations which fall within the definition of State in Art. 12 of the Constitution. Though advertisement in the newspaper is accepted tot be one of the best modes of giving such publicity that is not the only mode. In view of the categorical pronouncement of the Supreme Court in the above cases, I agree with my learned brother Choudary, J. that due publicity is a mandatory requirement and that whether in a given case the publicity given before filling up the vacancy satisfies the legal requirements or not, is to be judged on the basis of the facts and circumstances obtaining in the particular case. However, if the employer adopts a secretive or arbitrary or irregular method for inviting applications, the same cannot be sustained under Arts. 14 and 16 of the Constitution.
58. In Mastan Rao's case (supra) Jeevan Reddy, J. also accepted that publicity is necessary. The learned Judge referred to the decisions of the Mysore High Court in S. T. Venkataiah v. State of Mysore, A.I.R. (1969) Mys. 186, of the Rajasthan High Court in Paramatma Sharan v. Chief Justice, , of the decision of the Allahabad High Court in State v. Bholanath, : AIR1972All460 , to a Full Bench decision of the Punjab High Court in Kartar Singh v. State of Punjab, ; and to another Full Bench decision of the same High Court in Daljit Singh v. State, A.I.R. (1978) Punj. & Har. 117 : for the proposition that advertisement in the press is not the only mode of giving publicity and that appointment made without an advertisement in the press can be treated as valid. But if Jeevan Reddy, J., as well as the learned Judges in the above rulings thought that the Supreme Court in the above mentioned two cases did not require publicity before filling up vacancies in the Public Sector, I would differ from their views. But if they meant that the effect of the Supreme Court judgments was that due publicity was to be given which need not necessarily be by advertisement in the press, I agree with their views. To the latter extent, there does not also appear to be any difference in the views expressed by my learned brother Choudary, J.
59. Regarding the mode of publicity required by law, I may state that advertisement in the Press is certainly one of the best methods. But that is not the only method. Whether in a given case there is adequate public public or not depends on the nature of the post, the qualifications requ ired, the type of candidates required, the place of work and the knowled of local language and local conditions required and various other relevant factors. It is neither desirable nor possible to enumerate the various factors. It is best left to be judged on the facts and circumsta nces of each case. As already stated, a secretive or arbitrary method cannot be treated as a proper mode of giving publicity.
60. Having observed that due publicity is necessary Jeevan Reddy, J. in Mastan Rao's case (supra) thought that notifying vacancies to the Employment Exchange concerned must be treated as sufficient compliance with the requirement of due publicity. With great respect, I am unable to agree with this view. In my opinion, notification of the vacancies to the Employment Exchanges concerned cannot be treated as satisfying the constitutional requirement of due publicity in filling up vacancies in the Public Sector. I am in entrie agreement with the the conclusion and the reasons given by Choudary, J. in this regard.
61. On the third question as to the persons to whom the Act applies, I agree with my learned brother Choudary, J, that the Act does not apply to vacancies arising directly in the Government service.
62. With regard to the relief to be granted in this batch of writ petitions my learned brother Choudary, J. has considered the same as part of the second question framed by him. I agree that no Writ of Mandamus can be issued directing the employers in the Public Sector to consider the petitioners, applications along with those sponsored bt the Employment Exchange. In my opinion, the attack of the petitioners should be that there was no adequate publicity and that the mode of publicity adopted by the employer is violative of the principles of equality guaranteed in Arts. 14 and 16 of the Constitution. In the present batch of cases such a specific plea as to want of public notice has not been taken out by the petitioners. Even assuming that such a question can be urged at this stage, still the relief claimed by the petitioners to the effect that their cases should be directed to be considered by the respondents cannot be granted. Merely because the petitioners have been able to approach this Court, they cannot be in a better position than the vast multitude of other eligible candidates of whom several may be more qualified than the petitioners in each of these writ petitions. The Supreme Court has pointed out in State of Kerala v. Kumari T. P. Roshana, : 2SCR974 , with regard to admissions to colleges, in a similar context, that :
'the measure is academic excellence, not litigative persistence.'
63. The above-said view was reiterated in Punjab Engineering College v. Sanjay Gulati, : 2SCR801 . It is therefore clear that giving a direction fro consideration of the petitioners, cases alone (along with those sponsored by the employment exchange) would result in inequality. I agree with my learned brother Choudary, J. that such a direction to consider the petitioners' cases alone cannot therefore be granted.
64. In the result, I agree that the Writ Petitions are to be dismissed but without costs.