MR.JUSTICE A.P.SAHI, CHIEF JUSTICE AND THE HONOURABLE MR.JUSTICE SENTHILKUMAR RAMAMOORTHY full order 26. Thus, in view of the conclusions drawn herein above, we find that the appeals deserve to be allowed. Accordingly, these Writ Appeals are allowed and the impugned order dated 11.10.2010, is set aside. There shall be no order as to costs. Consequently, connected miscellaneous petitions are closed.

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 16.10.2020
CORAM:
THE HONOURABLE MR.JUSTICE A.P.SAHI, CHIEF JUSTICE
AND
THE HONOURABLE MR.JUSTICE SENTHILKUMAR RAMAMOORTHY

W.A(MD)Nos.819 to 826, 831 to 836, 1114 to 1141, 1213 to 1218, 1219 to 1241
of 2012
and
M.P.(MD)Nos.1, 2, 3, 4, 1, 1, 1, 1, 1, 1, 1, 1, 1, 2, 1, 2, 1, 2, 1, 2, 1, 2,
2, 2, 2, 2, 2, 2, 2, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1,
1, 1, 1, 1, 2, 2, 2, 2, 2, 2, 2, 2, 2, 2, 2, 2, 2, 2, 2, 2, 2, 2, 2, 2, 2, 2,
2, 2, 2, 2, 2, 2, 2, 2, 2, 2, 2, 2, 2 and 2 of 2012
W.A.(MD)No.819 of 2012:~

The General Manger,
Tamil Nadu State Transport Corporation (Nellai)Ltd.,
Vannarapettai,
Tirunelveli District. : Appellant /1st respondent

Vs.

1.P.Pandiarajan :Petitioner/respondent

2.The District Employment Officer,
O/o.The District Employment Exchange,
Tirunelveli. :2nd Respondent/2nd Respondent
PRAYER: Writ Appeal is filed under Clause 15 of the Letters Patent Act, to
set aside the judgment and order dated 11.10.2012 passed in W.P.(MD)No.11104
of 2012 on the file of this Court and dismiss the writ petition.
For Appellant : Mr.Sricharan Rengarajan
Additional Advocate General
assisted by Mr.K.Sathiyasingh,
Mr.D.Sivaraman and

Mr.J.Senthil Kumaraiah,
Standing Counsel for TNSTC
For R1 : Mr.M.Ponniah
For R2 : Mr.K.P.Krishnadoss
Special Government Pleader

C O M M O N J U D G M E N T

(Judgment of the Court was delivered by THE HONOURABLE CHIEF JUSTICE)

These appeals arise out of a dispute having been raised by the
respondents /writ petitioners claiming their right to seek employment as
Conductors and Technicians in the Tamil Nadu State Transport Corporation in
respect of three Corporations comprising nine (9) regions. The appointments
to be made through Employment Exchange came to be notified through different
notifications of the respective regions dated 16.07.2012, 22.08.2012 and
04.09.2012. We may point out that there are other posts including Drivers as
well, but, the present appeals are confined only in respect of the posts of
Conductors and Technicians.

2. On the issuance of the said notifications, the respondents / writ
petitioners raised a challenge contending that since the appointments had to
be made through the Employment Exchange and that the writ petitioners were
also registered with the Employment Exchange, their names should be forwarded
in accordance with the seniority, which should be preferred on the basis of
the registration in the Employment Exchange. It was urged that since the
said procedure had not been followed and the names of the respondents / writ
petitioners had not been sponsored by the Employment Exchange, the
notifications issued asking the candidates to appear for interview should be
quashed and the entire selection process should be revisited after preparing
the seniority list. The relief claimed was about the incorrect procedure
having been adopted by the Employment Exchange for sponsoring the names
effectively thereby depriving the writ petitioners of their right to get
interviewed in the said selection process.

3. These writ petitions were heard and decided by a common order dated
11.10.2012, which is impugned in these writ appeals, whereunder the learned
Single Judge after having heard the arguments was of the opinion that two
questions arose for determination in all the writ petitions. The questions
posed have been extracted in Paragraph No.34 of the impugned order, which is
gainfully reproduced hereunder:~
?i.Whether the process of selection adopted by respondents Corporation,
for filling up the posts of Conductors and Technicians is hit by Articles 14
and 16 of the Constitution of India, thus liable to be quashed ?

ii.Whether the petitioners are entitled to age relaxation of five
years, for being considered for appointment, to the posts of Conductors and
Technicians??

4. The learned Single Judge thereafter, went on to hold that offering
employment only through sponsoring of names by the Employment Exchange was
violative of Articles 14 and 16 of the Constitution of India and therefore,
if there would have been an open advertisement, the writ petitioners could
have also applied. After having traversed the entire law laid down by the
Honourable Supreme Court, the learned Single Judge came to the conclusion
that the selection process was vitiated on account of the posts not having
been openly advertised.

5. On the second ground, the learned Single Judge considered the
submissions raised and held that since the relaxation of five years had been
earlier granted by the State from 2006 to 2011 for a period of five years and
availability of such relaxation was not prohibited in future, therefore, the
benefits of such relaxation would be extendable to the writ petitioners even
beyond 17.06.2011 and therefore, issued a direction that the respondents /
writ petitioners be also considered for employment. The entire selection
process was therefore struck down on these two grounds.

6. During the pendency of the writ petitions, selection process had
already commenced, but, had not concluded finally. The appellants instituted
the present writ appeals that were entertained and admitted on 15.10.2012 and
interim stay was also granted as prayed, which was to stay the operation of
the impugned order. The selection process thereafter, concluded with
appointments, which have already been made.

7. With regard to the finding on the first issue of applicability of
the law declared by the Honourable Apex Court that public employment should
always be made through an open advertisement, or else it would violate
Articles 14 and 16 of the Constitution of India, Mr.Sricharan Rengarajan,
learned Additional Advocate General, submits that this is a peculiar case,
where it is not disputed that the appellant Corporation was authorized in law
to make appointments after calling for names from the Employment Exchange.
This was in conformity with Section 4 of the Employment Exchanges
(Compulsory Notification of Vacancies) Act, 1959. The provision is extracted
herein under for ready reference:~
“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 exchanges as may be prescribed.“
8. Reference was also made to the Common Service Rules, which were
framed and adopted under the Government Order No.1373 dated 02.12.1985. Rule
11 of the Common Service Rules with regard to upper age limit on the date of
sponsoring by the Employment Exchange is extracted herein under:~
“11. General Conditions of Appointment:~
(a) No person shall be eligible for appointment by direct recruitment to any
category in the Corporation unless he satisfies the appointing authority or
the Selection Committee.
(b) 1. that he is a citizen of India, or a person declared as such by the
Government or by the Director of Rehabilitation of Government of Tamil Nadu.
2. that he is of sound health, possesses active habits and is free from any
bodily defect or deformity.
3. that he has completed the age of eighteen (18) years of such other higher
minimum age that may be prescribed for appointment to any category of post.
4. that, if no upper age limit has been prescribed for appointment by direct
recruitment to the category of post to which he has sought appointment, he
has not completed thirty (30) years of age or if he belongs to Backward Class
/ Most Backward / Denotified Community he has not completed thirty five (35)
years of age, if he belongs to Scheduled Caste or Scheduled Tribe, he has not
completed forty (40) years of age as on the date of sponsoring of the
candidate by the Employment Exchange.
i.Provided that when the appointment is to a post in the grade of Deputy
Manager, that he has not completed forty (40) years of age, of if he belongs
to BC / MBC / DNC / SC / ST that he has not completed forty five (45) years
of age as on the date of sponsoring of the candidate by the Employment
Exchange.
ii.Provided also that in the cases of repatriates from Burma and Sri Lanka
who have migrated to India on or after 01.06.1963 and 01.11.1974
respectively, age relaxation may be given by the appointing authority on par
with persons belonging to SC s / STs.
iii.Provided further that, in the case of an Ex~Serviceman, age relaxation
may be given by the appointing authority upto forty five (45) years of age if
he does not belong to B.Cs / MBC / DNC / SCs/ STs and upto fifty (50) years
of age if he belongs to B.Cs/MBC/DNC/SCs/STs. iv.Provided further in the case
Physically Handicapped person age relaxation may be given by appointing
authority upto 10 years of age if he does not belong to BC / MBC / DNC / SC /
ST and upto 45 years of age if he belong to BC / MBC / DNC and upto 50 years
of age if he belongs to SC / ST.“

9. Rule 59 (c) of the Appendix(III) thereof were also considered to
examine the upper age limit and it was found that persons belonging to the
Backward Classes seeking employment, who have crossed the age of 35 years,
cannot be considered on the ground of overage. It was also indicated that
there was no provision under the said Rules for relaxation.

10. Rule 14 was also taken into account to point out the mode and
method of recruitment through Employment Exchange, which has been extensively
quoted by the learned Single Judge in Paragraph No.32 of the impugned order.
After having analysed the impact of the Rules and provisions of the
Employment Exchanges Act referred to above, the learned Single Judge
discussed the impact of the judgements relating to the controversy that has
been quoted in extenso from Paragraph No.60 onwards of the impugned order and
then came to the conclusion that the notifications issued by the Corporation
inviting applications only through Employment Exchange deserve to be quashed.

11.On the issue relating to the age relaxation, the learned Single
Judge held that chance of such candidates was reduced and depleted on
account of the action of the appellant Corporation resulting in some of the
candidates becoming overage, which action therefore, was arbitrary and
therefore, the writ petitioners are entitled to the relaxation of five years
under the Government Order in G.O.Ms(No).98, Personnel and Administrative
Reforms(S) Department dated 17.07.2006. In Paragraph No.67 of the impugned
order, the learned Single Judge also relied on the counter affidavit to
conclude that the said Government Order for grant of relaxation would be
available to the writ petitioners.

12. The learned Additional Advocate General contended that this
conclusion of the learned Single Judge is also erroneous inasmuch as the said
Government Order No.98, had been issued in order to extend the benefit of
relaxation of five years only as a one time measure as there was ban on
appointments between 2001 and 2006. It was not an open ended age relaxation
to be continued in future as well. Such powers of relaxation, therefore,
were available in respect of the claims between 2006 upto 17.06.2011. In the
present case, notifications were issued in the year 2012 and therefore, there
was no question of any extension of the benefits of the said Government Order
in the present case.

13. Learned Additional Advocate General, therefore, on both issues has
summarised his arguments by contending that firstly, all the writ petitioners
were fully aware of the process of selection adopted for the posts of
Conductors and Technicians and there was no prohibition for the writ
petitioners to have applied even otherwise. He contended that if the
Employment Exchange had not sponsored them, then, the reliefs prayed for as
framed in the writ petitions are against the sponsoring agency, for having
not acted appropriately by maintaining the seniority list of the candidates,
who could be sponsored by the Employment Exchange. This, therefore,
demonstrates that the writ petitioners were fully aware of the notifications
and if they were eligible, they could have applied to the Corporation seeking
employment on the ground that they were also registered with the Employment
Exchange. He submits that no such attempts were made by the respondents /
writ petitioners and therefore, they could not turn around and say that
there was no advertisement. He submits that had there been a single
candidate amongst the petitioners, who was not registered with the Employment
Exchange, one could have presumed that he had an independent cause on account
of non advertisement of the posts, but, so far as the respondents/writ
petitioners are concerned, the pleadings in all the writ petitions are
clearly to the effect that they were aware of the procedure being adopted.
What the learned Additional Advocate General contends is that in the absence
of any attempt on the part of the respondents/writ petitioners to seek
employment by an appropriate application to the Corporation, they cannot
plead that they have been deprived of an opportunity of employment by any act
of discrimination or arbitrary action on the part of the appellant
Corporation. He, therefore, submits that neither Article 14 or Article 16 of
the Constitution of India, are attracted and hence, the judgements relied on
by the learned Single Judge to set aside the selection process on this ground
is not justified.

14. Learned Additional Advocate General to substantiate his
submissions, further invited the attention of this Court to the reliefs
prayed for and the pleadings in support thereof to contend that the issue
that the posts have not been advertised through open advertisement, was not
even raised by the writ petitioners. It was the learned Single Judge, who
during the course of arguments, framed the said questions and then answered
it. The submission, therefore is, in the absence of any such issue having
been advanced by the respondents / writ petitioners, the relief granted by
the learned Single Judge is outside the scope of the writ petitions and even
otherwise, was not desirable keeping in view the background of the facts as
narrated herein above.
15. On the issue of relaxation of age, learned Additional Advocate
General has relied upon the following judgments to substantiate his
submissions:~
1.2016 SCC Online Mad 2651 [A.Alagesan and others vs. The State of
Tamil Nadu represented its Secretary and others];
2.W.A.No.1027 of 2013 [The Commissioner, Department of Employment and
Training vs. K.P.Jaganathan]; and
3.W.P.Nos.24341 to 24344 of 2015 [R.Renganthan vs. The Government of
Tamil Nadu and another].

16. Countering the aforesaid submissions, the arguments on behalf of
the respondents / writ petitioners were led by Mr.M.Ponniah, learned counsel,
who submitted that the fact that no open advertisement was issued by the
appellant Corporation now stands admitted and therefore, in view of the ratio
laid down by the Honourable Supreme Court in the judgments that have been
referred to by the learned Single Judge, the entire selection process was
vitiated, thereby violating Articles 14 and 16 of the Constitution of India.
He, therefore, submits that the learned single Judge had not committed any
error in framing the questions and answering the same in favour of the
respondents / writ petitioners. He contends that it is a question of law and
the law declared by the Hon-ble Apex Court is that all public employment
should be made through public advertisement. Hence, the ultimate relief
granted by the learned Single Judge does not suffer from any infirmity.

17. On facts, the learned counsel urged that it is surprising that the
State is attempting to shift the burden on the respondents / writ petitioners
by contending that the petitioners had failed to apply for consideration of
their candidature. He submits that once the appellants had resorted to a
particular modus through a notification, it was implied that all other
candidates would stand excluded and therefore, this was violative of Articles
14 and 16 of the Constitution of India. Accordingly, the constitutional
mandate stood violated and nothing more was required to be done by the
respondents/writ petitioners except to challenge the selection process. He
submits that even if the pleadings did not contain an averment to that
effect, the application of law by the Court was fully justified inasmuch as
whether the procedure was invalid or not on the admitted facts of the case
has to be decided. The law therefore, had been rightly applied by the
learned Single Judge on the admitted facts of the case, namely that no open
advertisement had been made by the appellant Corporation. He therefore,
submits that the arguments of the learned Additional Advocate General on
account of lapse of the appellant themselves cannot be of any advantage and
is an argument worth rejection.

18. On facts, the learned counsel submitted that all the respondents /
writ petitioners were under the bonafide impression that their names would be
forwarded and sponsored by the Employment Exchange and therefore, there was
no occasion for them to apply separately. Even if it is assumed that all the
respondents/writ petitioners had knowledge of the notifications and the
process of selection as adopted by the appellant, it was the Employment
Exchange, which had to send the names and it was not for the respondents /
writ petitioners to seek any such permission to appear in the interview. The
appellant themselves ought to have taken care of the situation and hence, any
deficiency on their part to have not invited the applications from all
eligible persons cannot be a ground to condone any such lapse on the part of
the appellant.

19. It is not disputed by the learned counsel for the respondents /
writ petitioners that they had not applied or made any representation or
request to the appellant Corporation seeking participation in the interview
and the employment. They straightaway came to this Court for quashing of the
notifications and selection process. The learned counsel for the
respondents has further relied upon the fact that realising the impact of law
as declared by the Honourable Apex Court, the State Government itself has
issued a Government Order in G.O(Ms)No.44 Labour and Employment (T2)
Department, dated 11.03.2015 that all such posts which have to be filled up
by inviting application form by sponsorship from Employment Exchange should
also be covered though an advertisement in all leading newspapers.

20. In rejoinder, learned Additional Advocate General has submitted
that, on the issue of relaxation of age, the Rule if made in exercise of
powers under Article 309 of the Constitution of India, the same Rule of
relaxation would not automatically be attracted with regard to the Rules of
the Transport Corporation that have been framed independently and do not
contain any such provision. He, therefore, submits that the claim of
relaxation is totally unwarranted and is not permissible.

21. Having considered the submissions raised, there cannot be any
quarrel over the proposition of law laid down by the Honourable Apex Court
that all public employments are supposed to stand the test of Articles 14 and
16 of the Constitution of India, for which, the initial step of any process
of selection has to be through an open advertisement. However, when the
present set of cases came to be decided, it is evident that the law relating
to the subject was being debated in the Supreme Court and came to be finally
settled quite in close proximity of the selection process presently involved
that had been notified in the year 2012. Nonetheless, there was a statutory
compliance by the appellant Corporation by proceeding with the process of
selection of calling for names from Employment Exchange. The only question
is whether this could have been done exclusively through this method or a
public advertisement was necessary.

22. We do not think that there can be a second opinion on this that a
public employment of the nature as involved in the present case has to be
advertised in order to attract the best of the talents. Nonetheless, one of
the methods of calling for names through Employment Exchange is not
prohibited in law. The arguments of the learned Additional Advocate General
that the respondents / writ petitioners were well aware of the notifications
having been issued and the process adopted appears to be correct and
therefore, the respondents / writ petitioners cannot be said to have been
prohibited from seeking the relief from the appellant Corporation in order to
participate in the selection process. They, therefore, formed a class, who
had knowledge of the entire process and therefore, in our opinion, they
cannot plead that the lack of advertisement resulted in any lack of
opportunity to them. Such an argument, in our opinion, would be open for a
candidate, who had not registered with the Employment Exchange could have
claimed that he did not know about the selection process as there was no open
advertisement, but, in the present case, the respondents / writ petitioners,
as rightly pointed out by the learned Additional Advocate General, had full
knowledge of the entire selection process. The absence of an advertisement,
therefore, could not have been a ground for them so as to contend that they
have lost the opportunity of seeking employment. This is not to shift the
burden of the arguments, but, on a plain understanding as is available on the
facts of the present case, all the respondents / writ petitioners are
candidates, who were registered with the Employment Exchange. It is in this
situation, they cannot be heard to plead as a matter of fact or in law that
there being no advertisement, they have been deprived of the opportunity of
participating in the selection process. They had an opportunity to apply and
even otherwise they did seek such a relief through writ petitions filed by
them. Thus, the absence of knowledge of any open advertisement, does not in
any way create a ground for challenge insofar as the respondents / writ
petitioners are concerned in the above background. Accordingly, the
respondents / writ petitioners cannot be said to be either affected or
aggrieved by any non advertisement of the posts.

23. In our considered opinion, the matter could have been more
conveniently handled at the time of the presentation of the writ petitions.
The respondents / writ petitioners could have been extended the benefit of an
interim order to participate in the selection process, but, that is past
history and no such order was passed by the learned Single Judge, who
entertained the writ petitions. The petitioners did not carry such request
any further. The question, therefore, of quashing the selection process by
the learned Single Judge on the ground of posts not having been advertised,
therefore, cannot be sustained for all the reasons hereinabove and the
impugned order to that extent has to be quashed.

24. Apart from this, the selection process, during the pendency of the
appeals and in view of the interim order that has already been passed as
noted above, had already been completed and even otherwise, the
respondents/writ petitioners would have crossed all the barriers of upper age
limit by now.

25. However, at the same time, we would further like to proceed to
examine the second issue answered by the learned Single Judge regarding
relaxation of age. As a matter of fact, if the age of the respondents /
writ petitioners could not be relaxed, even otherwise they would not be
eligible. On this issue, we find that there cannot be an automatic
application of the Rule of relaxation in the background that the said
relaxation was meant for extending the benefits to those for a particular
period keeping in view the ban imposed by the Government between 2001 to
2006. The relaxation itself was available between the period of 2006 and
2011. This in our opinion, as urged by the learned Additional Advocate
General was not an open ended age relaxation to be followed at any point of
time. In the present case, when the notifications were issued in 2012, the
said relaxation otherwise could not have been available as it had outer limit
and in our opinion cannot be extended in future to extend such benefit as it
was not an omnibus relaxation without any limit, as contended by the
respondents / writ petitioners. Considering the same, as urged by them,
would lead to a chaotic situation, where anybody could claim such relaxation
at any point of time in future. We are therefore not prepared to accept the
contention of the respondents / writ petitioners. Apart from this, statutory
exercise of power is necessary for relaxing the upper age limit. The learned
Single Judge has assumed as if such relaxation was permissible under the
statute. The reliance placed by the learned Single Judge in our opinion was
misplaced.

26. Thus, in view of the conclusions drawn herein above, we find that
the appeals deserve to be allowed. Accordingly, these Writ Appeals are
allowed and the impugned order dated 11.10.2010, is set aside. There shall
be no order as to costs. Consequently, connected miscellaneous petitions are
closed.

[A.P.S.,CJ.,] [S.K.R.,J.]
16.10.2020
Index : Yes
Internet : Yes

pm/ta

Note :

In view of the present lock down owing to COVID~19 pandemic, a web copy of
the order may be utilized for official purposes, but, ensuring that the copy
of the order that is presented is the correct copy, shall be the
responsibility of the Advocate / litigant concerned.

To

The District Employment Officer,
O/o.The District Employment Exchange,
Tirunelveli.

THE HON-BLE CHIEF JUSTICE
AND
SENTHILKUMAR RAMAMOORTHY,J.

pm/ta

COMMON JUDGMENT MADE IN
W.A.(MD)No.819 of 2012 etc., batch

Dated:
16.10.2020