Chinnappa Reddy, J. - (1.) The question raised in these appeals is whether an 'establishment in the public sector' or an 'establishment in the private sector' as defined in the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 may make appointments to posts to which the Act applies, of persons not sponsored by the Employment Exchanges A further question is whether the Act covers Government establishments also A Division Bench of the High Court of Andhra Pradesh has held that the Act has no application to Government establishments, that the Act casts no obligation either on the public sector establishment or on the private sector establishment to make the appointments from among candidates sponsored by the employment exchanges only and that any insistence that candidates sponsored by the employment exchanges alone should be appointed would be contrary to the right guaranteed by Arts. 14 and 16 of the Constitution. The learned Additional Solicitor General appearing for the Union of India argued that the object and the scheme of the Employment Exchanges (Compulsory Notification of Vacancies) Act and the instructions issued by the Government of India from time to time left no option to the employers but to confine their field of choice to candidates sponsored by the employment exchanges. It was argued that such insistence that appointments should be made from candidates sponsored by the employment exchanges only did not offend Arts. 14 and 16 of the Constitution. He also argued that the Act was applicable to Government Establishments also.
(2.) We may refer to the provisions of the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 without further ado. The title of the Act itself suggests that the compulsion is in regard to notifying of vacancies only and nothing more. The preamble to the Act, like the title of the Act, also does not suggest any compulsion in the making of appointments, but only in the notifying of vacancies. The preamble says "An Act to provide for the compulsory notification of vacancies to employment exchanges." Section 2(e), (f) and (g) defines "establishment", "establishment in public sector" and "establishment in private sector" as follows:- "(e) "establishment" means - (a) any office, or (b) any place where any industry, trade, business or occupation is carried on; (f) "establishment in public sector" means an establishment owned, controlled or managed by (1) the Government or a department of the Government; (2) A Government company as defined in S. 617 of the Companies Act, 1956; (3) A corporation (including a co-operative society) established by or under a Central, Provincial or State Act, which is owned, controlled or managed by the Government; (4) A local authority; (g) "Establishment in private sector" means an establishment which is not an establishment in, public sector and where ordinarily twenty-five or more persons are employed to work for remuneration." The High Court thought that the definition of "'establishment in public sector" as meaning an establishment owned, controlled or managed by the Government or a Department of the Government indicated that an establishment in public sector was something different from the Government or a Department of Government and did not include the Government or Department of the Government. It had to be something which could be owned, controlled or managed by the Government or a department of the Government. The High Court also thought that the expression 'public sector' was used in contradiction to 'private sector' and that it could not include offices of the Government. The expression would only take in an agency or instrumentality of the State, but not the State itself. We are unable to agree with the conclusion of the High Court on this part of the case. If the definition of 'establishment' which includes an 'office' is read alongside the definition of 'establishment in public sector', it will be clear that Government offices are also included in the expression 'establishment in public sector'. That is the interpretation which the Government itself is advancing before us and that is how the Government has always understood the provision during these three decades as will be evident from the instructions issued by the Government from time to time to which we shall be referring later in the course of our judgment. We are unable to agree with the view of the High Court that the Act is not applicable to Government establishments.
(3.) Section 3 of the Act specifies posts, vacancies to which the Act does not apply. Section 4 provides for the notification of vacancies to employment exchanges. It is desirable to extract the whole of S. 4 which is as follows:- "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. (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-s. (1) or sub-s. (2) shall be notified to the employment exchanges and the particulars of employments in which such vacancies have occurred or are about to occur shall be such may be prescribed. (4) Nothing in sub-ss. (1) and (2) shall be deemed to impose any obligation upon any employer to recruit any person through the employment exchanges to fill any vacancy merely because that vacancy has been notified under any of the sub-sections." Section 5 deals with the duty of the employers to furnish information and returns in prescribed forms. Section 6 provides for official access to records and documents. Section 7 provides for penalties. Section 8 deals with cognizance of offences. Section 9 provides for protection of action taken in good faith. Section 10 vests the rule-making power in the Central Government.;