The first petitioner is a Post Graduate un-employed woman, who has registered for employment in the employment exchange. The second petitioner is an office bearer of an association of employees of the Kerala Social Security Mission, a society controlled by the Government of Kerala. Ext.P11 notification issued by the Kerala Social Security Mission is under challenge in this writ petition. Petitioners also seek directions to the Kerala Social Security Mission to refrain from making appointments , without notifying the vacancies to the employment exchange, as provided for under the employment exchange (Compulsory Notification of Vacancies) Act, 1959. 2. As per Ext.P11 notification, applications were invited by the Executive Director of the Kerala Social Security Mission, hereinafter referred to as 'the Mission' for short, for appointment on contract basis for a period of one year to the post of Manager in the District Early Intervention Centers established by the Mission. The case of the petitioners is that Ext.P11 notification was published, without notifying the vacancies to the employment exchange, as provided for in Section 4(1) of the Employment Exchange (Compulsory Notification of Vacancies) Act, 1959, hereinafter referred to as “the Act” for short, and therefore, the same is illegal and liable to be quashed. According to the petitioners, had the vacancies been notified to the employment exchange, the first petitioner and other similarly placed persons, who are qualified for appointment to the notified post and who are registered for employment in the employment exchange would have been sponsored by the employment exchange.
3. The respondents 3 and 4 filed a counter affidavit, opposing the relief sought for by the petitioners. The stand of the said respondents in the counter affidavit is that merely for the reason that the vacancies are not notified to the employment exchange, it cannot be said that the selection process is vitiated. It is also contended by the said respondents that they are entitled to make appointments in accordance with the constitutional mandate contained in Article 16 of the Constitution of India and that the provisions of the Act do not interdict such appointments.
4. The question arises for consideration therefore, is whether the Mission is entitled to make appointments to its service, without notifying the vacancies to the employment exchange.
Section 4 of the Act reads thus:
“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 employment 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.
5. In Kuriakose v. Cochin Shipyard Ltd. & others (1985 KLT 789), this Court on a consideration of the scheme of the Act held that Section 4 (1) of the Act is not mandatory and that the appointments made by the employer will not be rendered invalid, merely by reason of the employer not complying with the requirements of Section 4 (1) or 4 (2) of the Act. In D. James Jesudas v. Malabar Cements Ltd. (1996(1) K.L.J. 511), this Court held that the provisions of the Act do not affect the right of the employer to make appointments. In Union of India v. N. Hargopal [(1987) 3 SCC 308], the Apex Court held that the Act does not oblige any employer to employ only those who are sponsored by the employment exchanges. Even though Ext.P11 notification is published for selection of employees on contract basis for a period of one year, the same gives equal opportunity to all eligible persons to apply for selection. As such, it is a notification published in accordance with the equality clause enshrined in Article 16 of the Constitution of India.
6. In the said circumstances and in the light of the aforesaid decisions of this court and the Apex Court, I am of the view that the petitioners are not entitled to challenge Ext.P11 notification on the ground that the vacancies were not notified to the employment exchange before the selection process.
7. The learned counsel for the petitioners submitted that circulars have been issued by Government directing the public bodies to follow the principles of communal reservation, as provided for under Rules 14 to 17 of the Kerala State & Subordinate Services Rules, 1958, and the appointments are sought to be made in the service of the Mission in violation of the said circulars. There is no pleading in the writ petition to the effect that the provisions in Rules 14 to 17 of the Kerala State & Subordinate Services Rules, 1958, have been adopted by the Mission for employment in its service. The circulars claimed to have been issued by the Government are not part of the records in this writ petition. The first petitioner has no case that she is entitled to the benefits of reservation. As such, according to me, the said issue does not arise for consideration in this writ petition.
There is, therefore, no merit in the writ petition and the same is, accordingly dismissed.
Sd/-
P.B.SURESH KUMAR, JUDGE //true copy// P.A to Judge smv