Sunil Kumar K.R. and Aneesh V.T. v. District Employment Officer, Thrissur, and The Pharmaceutical Corporation (IM) Kerala Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN** ## **MONDAY, THE 6TH DAY OF FEBRUARY 2012/17TH MAGHA 1933** ## **WP(C).No. 26905 of 2011 (K)** ## **---------------------------------------** **PETITIONER(S) : ----------------------** **1. SUNIL KUMAR. K.R., KIZHAKKUMKUDI HOUSE, OLLUKKARA P.O., KALATHODE, THRISSUR DISTRICT- 680 655.** **2. ANEESH.V.T., VARUKKUNNEL HOUSE, VETTUKAD P.O., THRISSUR DISTRICT-680 014.** **BY ADVS. SRI. N.NAGARESH SRI. SHAJI THOMAS SRI. BINU PAUL SRI. T.V.VINU SRI. SHINE MATHEWS(VADAKKEKARA) SRI. ARUN CHANDY** **RESPONDENT(S) : -----------------------** **1. DISTRICT EMPLOYMENT OFFICER , DISTRICT EMPLOYMENT EXCHANGE, THRISSUR- 680 001.** **2. THE PHARMACEUTICAL CORPORATION (IM) KERALA LTD., REPRESENTED BY ITS MANAGING DIRECTOR, KUTTANELLUR P.O., THRISSUR- 680 014.** **R1 BY GOVT. PLEADER ADV. SMT. C.K. SHERIN. R2 BY ADVS. SMT. P.VIJAYAMMA, S.C. SRI. V. KRISHNA MENON SRI. E.K.MADHAVAN** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06-02-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **NS** ## **WP(C).No. 26905 of 2011** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS :** **EXHIBIT P1 : COPY OF THE EMPLOYMENT REGISTRATION CARD OF THE 1ST PETITIONER.** - **EXHIBIT P2 : COPY OF STATEMENT OF EPF ISSUED TO THE 1ST PETITIONER WHILE ENGAGED AS APPRENTICE.** - **EXHIBIT P3 : COPY OF THE EMPLOYMENT REGISTRATION CARD OF THE 2ND PETITIONER.** - **EXHIBIT P4 : COPY FO THE CERTIFICATE DATED 21/7/2008 ISSUED TO THE 2ND PETITIONER.** - **EXHIBIT P5 : COPY OF REQUISITION FORM DATED 11/7/2011 FORWARDED BY THE 2ND RESPONDENT.** - **EXHIBIT P6 : COPY OF THE REPRESENTATION DATED 3/10/2011 SUBMITTED BY THE 1ST PETITIONER.** - **EXHIBIT P7 : COPY OF THE REPRESENTATION DATED 3/10/2011 SUBMITTED BY THE 2ND PETITIONER.** - **EXHIBIT P8 : COPY OF THE NEWSPAPER ADVERTISEMENT WHICH APPEARED IN MATHRUBHOOMI DATED 21.05.2011 MADE BY THE 2ND RESPONDENT FOR TEMPORARY APPOINTMENTS.** ## **RESPONDENTS' EXHIBITS :** **EXHIBIT R2(A): COPY OF THE LETTER DATED 22.10.2011.** **EXHIBIT R2(B): COPY OF THE OFFER OF APPOINTMENT DATED 27.12.2010.** **EXHIBIT R2(C): COPY OF THE OFFER OF APPOINTMENT DATED 22.07.2010.** **/ TRUE COPY /** **P.A. TO JUDGE** **NS** ## **K.SURENDRA MOHAN, J. -----------------------W.P(C). NO. 26905 OF 2011 ------------------------** Dated this the 6[th] day of February, 2012 ## **JUDGMENT** The petitioners are persons, who have undergone Apprenticeship under the 2[nd] respondent, a Public Sector Undertaking, for more than 3 years. According to the petitioners, they satisfy all the requirements necessary for being recruited as 'Workers' in the service of the 2[nd] respondent. However, the petitioners complain that their names are not considered for such appointment. The petitioners further contend that they have a fundamental right under Article 16 of the Constitution which guarantees to them an equal opportunity to claim an appointment under the State, which includes the second respondent also. It is mandatory that the notification inviting applications to the post should be published in newspapers and given wide publicity through other media also. The above mandatory procedure not having been adopted, the petitioners contend that the selection conducted by the 2[nd] respondent pursuant to Ext.P5 is vitiated and is liable to be set W.P.(C). No.26905 /2011 2 aside. The petitioners, therefore, pray for the issue of appropriate writs and orders setting aside Ext.P5 requisition as well as the subsequent selection made to 150 vacancies. 2. The petitioners contend that they have passed SSLC. The first petitioner has completed his Degree Course while the second petitioner is a B.A. Degree Holder. The first petitioner belongs to a Scheduled Caste community. He has registered his name with the Thrissur Employment Exchange and his Registration No. is 1617/1997. The second petitioner has also registered his name with the Thrissur Employment Exchange and his Registration No. is 1303/98. The Registration Cards of the petitioners are Exts.P1 and P3. The petitioners have completed 3 to 4 years of Apprenticeship. They contend that they should have been selected as workers. Having excluded them from selection without any justifiable reason, they contend that, the selection is bad and liable to be set aside. 3. A counter affidavit has been filed on behalf of the first respondent - District Employment Officer. According to the counter affidavit, the petitioners have registered their names with the Employment Exchange showing their qualification as W.P.(C). No.26905 /2011 3 S.S.L.C only. The additional qualifications that they possess including completion of apprenticeship have not been brought to the notice of the first respondent. Pursuant to the requisition Ext.P5, a total number of 1298 candidates were sponsored by the first respondent in accordance with the existing Rules and Regulations. The names of the persons were sponsored also taking into account their names on the basis of registration seniority. Accordingly,candidates having seniority up to 30/6/1989 in the open category and candidates having seniority up to 28/6/1990 in the Scheduled Caste category were sponsored. Names of the petitioners were not sponsored for the reason that they had registered their names only in the years 1997 and 1998. 3. A separate counter affidavit has been filed on behalf of the 2[nd] respondent. According to the 2[nd] respondent, issue of Ext.P5 requisition is in full compliance with the Rules and Regulations applicable. In the requisition itself, it has been mentioned that the appointment would be only as a temporary worker and that duration of the engagement would be limited to 179 days. Pursuant to the requisition, as many as 1298 W.P.(C). No.26905 /2011 4 candidates were sponsored by the Employment Exchange. The said candidates were subjected to other procedures of selection including interview. Accordingly, a list of 225 candidates was prepared after completion of the selection process. It was from the said list that 150 persons were engaged temporarily as worker trainees. According to the learned counsel for the 2[nd] respondent, the procedure adopted does not suffer from any infirmity warranting interference by this court. 4. The petitioners have filed a reply affidavit producing Ext.P8 notification published by the 2[nd] respondent in the newspaper inviting applications to work as apprentices in the worker category. According to the petitioner, the omission to issue notification in the news papers and other media, as evidenced by Ext.P8, is fatal to the selection process conducted. 5. Thereupon, an additional counter affidavit has been filed on behalf of the 2[nd] respondent in answer to the reply affidavit of the petitioners. According to the second respondent, apprentices on contract basis were engaged only for the period of one year and they were disengaged on expiry of the stipulated period of one year. They were given training and W.P.(C). No.26905 /2011 5 were also alloted to different sections for specialised training. According to the 2[nd] respondent, the procedure adopted by them was fair and reasonable. For the above said reasons, they seek dismissal of the writ petition. 6. I have heard Sri. N.Nagaresh learned counsel for the petitioners and Smt.P.V.Vijayamma learned counsel for the second respondent and the learned Government Pleader for the first respondent. I have considered the rival contentions anxiously. 7. The learned counsel for the petitioners relies on the decision of the Supreme Court in **Excise Superintendent, Malkapatnam Krishna District A.P. v. K.B.N.Viseshwara Rao And Others (1996 (6) Supreme Court Cases 216)** to put forward his contention that it is the obligation of the appointing authority to give wide publicity to the notification calling for applications from suitable candidates by publishing the same in newspapers as well as other media so as to ensure that maximum number of candidates are provided with an opportunity to participate in the process of selection. Such procedure would provide opportunities to a large number of W.P.(C). No.26905 /2011 6 persons to participate in the selection process. It would would also ensure that selection of the best candidates takes place. Particular reliance is placed on the observation of the Apex Court in paragraph 6 of the said decision, which reads as follows; “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 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.” 8. The above decision has been relied upon in the decision ## in **Raj Kumar And Others v. Shakti Raj And Others (1997)** **9 Supreme Court Cases 527)** . In paragraph 15 thereof, after quoting the observations in paragraph 6 of the decision in Excise Superintendent Malkapatnam & K.B.N.Visweshwara Rao (cited supra) the Supreme Court observed as follows; “In view of this legal position, the necessary W.P.(C). No.26905 /2011 7 requirement should be that they should necessarily not only notify but also call the names from employment exchange; in addition they should give wide publicity in the media inviting applications from qualified persons for selection. “ 9. For the above reasons, it is contended that the selection in the present case is liable to be set aside. However, I am not satisfied that the procedure adopted pursuant to the issue of Ext.P5 has caused any prejudice to the petitioners. As noticed earlier, according to the first respondent, names of the petitioners had not been forwarded from the Employment Exchange only for the reason that their registration seniority was of the year 1997 and 1998 while the names of the candidates up to 1989 in the open category and 1990 in the scheduled caste category only were sponsored. The statements of the first respondent in the counter affidavit filed on behalf of the first respondent are extracted hereunder; “It is submitted that as per the requisition of the second respondent, for the post of 150 trainee workers, the District Employment Officer sponsored 1298 candidates by observing the existing Rules and Regulations and also observing the registration seniority. The Employment Exchange submitted suitable candidates having seniority 30/6/1989 in the open category and seniority 28/6/1990 in the W.P.(C). No.26905 /2011 8 Scheduled Caste category. The seniority of the 1[st] petitioner is 25/6/1997 only. The vacancy of a Trainee Worker is a class IV vacancy and having qualification VIIth standard. The second petitioner is having SSLC qualification with seniority 18/6/1998 and he has not given his willingness for the class IV vacancy. As per existing Rules, candidates having SSLC and above qualifications, should submit a request showing his/her willingness for the Class IV jobs. The 1[st] petitioner has given his willingness but not the 2[nd] petitioner. “ 10. In view of the above statement, it is evident that the reason for not sponsoring the names of the petitioners was that only candidates, who have registered upto 1989 were sponsored by the Employment Exchange. Since the petitioners have registered their names only in the years 1997 and 1998, they did not get a chance for their names to be sponsored by the Employment Exchange. If the petitioners continue to be registered under the Employment Exchange, they would certainly get their chance after the term of engagement of the candidates sponsored by Ext.P5 expires. Absolutely no prejudice whatsoever has been caused to the petitioners by the notification not having been published in the newspapers or in the other media. As many as 1298 candidates took part in the W.P.(C). No.26905 /2011 9 process of selection. After the selection process was over, the total candidates appointed are only 150. Therefore, it is not necessary for the selection to be set aside for the only reason that the respondents are not able to show that publication thereof was effected in the newspapers and other media. In the absence of any prejudice having been caused to the petitioners, I am satisfied that the petitioners are not entitled to the reliefs claimed in this petition. The writ petition fails and is accordingly dismissed. **Sd/K.SURENDRA MOHAN, JUDGE** dpk # W.P.(C). No.26905 /2011 10