(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.)Common Judgment:A.P. SAHI, CJ.1. 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]; and3. 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 J
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udge 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.