A.M. Shaffique, J.@mdashThis writ petition is filed challenging Ext. P4 order dated 29/08/2011 issued by the Higher Education Department of the Government revoking the Cabinet decision dated 27/02/2011 to regularise 13 persons who were working in the State Library Council. Petitioners 1 to 10 were working as L.D. Clerk, petitioners 11 and 12 as L.D. Typist and 13th petitioner as Driver in the Kerala State Library Council (for short ''the Library Council''). The Library Council is constituted under the Kerala Public Libraries (Kerala Grandha Sala Sangham) Act 1989 (hereinafter referred to as ''the Act''). The Library Council receives grant-in-aid from the Government and it is also supported by Library Cess collected through Local Self Government Institutions. Some of the members of the Council are also nominated u/s 3(2) of the Act of which five are officials of the Government from different departments.
2. Rules have been framed u/s 40 of the Act which inter alia deals with conditions of service of the officers and employees of Library Council. The Kerala Public Libraries (Kerala Grandha Sala Sangham) Rules 1991 (hereinafter referred to as ''the Rules'') are the relevant Rules and as per Rule 123 the appointing authority shall be the respective Library Council and all appointments by direct recruitment shall be made in consultation with the Staff Selection Committee constituted by the State Library Commission.
3. It is the contention of the petitioners that they were appointed in the year 2005 pursuant to a notification issued by the Library Council. It is contended that they were selected pursuant to a due selection process by the competent authority. It is also contended that though the initial appointment was on contract basis, all the formalities for direct recruitment were complied with before effecting the appointment. However, they were given appointment on daily wage basis. The Executive Committee of the Library Council has recommended for entrusting the appointments to the Library Council to the Kerala Public Service Commission (for short ''KPSC'') in the meeting held on 28/06/2007, but according to the Library Council no action was taken by the Government in this regard and as matters stand now the appointing authority is the Library Council.
4. Further it is indicated that all the petitioners were appointed in the existing sanctioned post as evident from Ext. P1 dated 06/10/2008. It is inter alia stated in Ext. P1 that a decision has been taken to regularise 10 L.D. Clerks, 2 L.D. Typist and 1 Driver who were working for a long period in the Library Council and the regularisation shall be effective from 01/06/2006, but they will be entitled for pay and allowances only after 31/08/2008.
5. The petitioners contend that the new staff pattern has been approved by the Government as per Ext. P2 Government order dated 21/03/2007. However it is stated that creation of posts for appointment shall not be made without the prior sanction of the Government in future. Petitioners have a case that the said restriction in Ext. P2 is ultra vires the Statute as the Government has no role to play in the matter relating to appointment of staff to the Library Council. By Ext. P3, the Secretary of the Library Council has addressed a letter dated 20/10/2008 to the Minister for Education for ratifying the decision taken to regularise the petitioners in the respective posts. The Government took a Cabinet decision dated 27/02/2011 to regularise the service of the petitioners in the Library Council and certain other appointments in District/Taluk Library Councils.
6. The main contention of the petitioners is that Ext. P4 has been issued in total violation of the principles of natural justice. That apart, it is contended that the appointing authority under the Act and the Rules is the Library Council and the Government has no say in the matter. By issuing Ext. P4 the Government has usurped the powers of the Council which is arbitrary and illegal. Further it is contended that the stipulation in Ext. P2 calling upon the Library Council to obtain prior sanction before appointments are made in the Library Council is ultra vires the Statute.
7. It is also contended that in so far as their appointments have been made by resorting to a due process of selection, Ext. P4 is liable to be set aside. The petitioners also seek for a declaration that they are entitled to continue in the respective posts without any interference from the 1st respondent and cancellation of their regularisation as per Ext. P4 is unenforceable.
8. Counter affidavit is filed by the 1st respondent inter alia contending that the Library Council is an autonomous body functioning under the Administrative control of the Higher Education Department of Government. Necessary grant-in-aid is given by the Government to the Council and library cess is collected from various Local Self Government Institutions to the Library Council. Hence it is stated that the Government is having control over the Library Council though the functions of the Library Council is autonomous in nature.
9. The Government relies upon Ext. R1(a) Government order dated 09/08/2011 by which appointment to the Library Council can be made only through KPSC, so that the appointments could be made in a transparent manner and for equitable distribution following the reservation rules in the matter of public employment. It is also stated that the said Government Order had been issued based on a report obtained from Justice K.K. Narendran, a former Judge of this Court who headed a Committee to study the reservation and communal equation which has to be followed in relation to appointments in the Library Council as well as autonomous bodies, quasi Government institutions and Universities.
10. It is further contended that the petitioners were appointed only on daily wage basis by the Library Council and they have no claim for permanent appointment without approval of the Government. The regularization of the petitioners would scuttle the normal mode of selection by competitive examination including interview. It is contended that the appointments of the petitioners are clearly against the judgment of the Supreme Court in
11. Counter affidavit is filed by respondents 2 and 3 inter alia contending that the Library Council has the power to appoint and control such officers and servants as may be necessary for the efficient performance of its duties and functions under the Act. It is contended that in so far as the Library Council has appointed the petitioners in exercise of their powers under the Act and Rules, approval or sanction from the Government is not required. They refer to Ext. R2(a), the decision taken by the Government informing the Library Council that it can take a decision to create necessary posts and change the staff pattern in implementation of recommendations suggested by Personnel and Administrative Reforms Department (P and ARD). Pursuant to the said decision, a new staff pattern with limited number of posts was fixed in terms of Ext. R2(b). Accordingly 19 L.D. Clerks, an L.D. Typist and a Driver was appointed in the year 1997. Thereafter, Kerala Grandha Sala Sangham was taken over by the Library Council and there were 11 Clerks at the relevant time. As per Ext. R2(b), additional 4 posts of Clerks were also created by another Government Order dated 20/11/1998, six more posts of L.D. Clerk were sanctioned in the Library Council. Therefore, according to them, there were 24 Clerks in the Library Council. Subsequently, six L.D. Clerks left the service on getting other employment and only two appointments were made under compassionate employment scheme. Later, eight more vacancies originated in the post of L.D.Clerk due to retirement and consequent promotion. Therefore, according to them, as on 20/05/2005, out of the total sanctioned post of 24 clerks, there were only 16 clerks and 8 posts were vacant. It is in that background, the Staff Selection Committee recommended regular appointment in 13 vacancies of various posts i.e. 8 L.D. Clerks, One L.D. Typist, One Driver, One Full Time Sweeper, One Data Entry Operator and one Night Watchman. The same was approved by the Government. Ext. R2(d) is the decision taken by the Executive Committee of the Library Council. Pursuant to Ext. R2(d), the Executive Committee took a decision on 07/06/2005 resolving and recommending to fill up the said posts. It is stated that selection for filling up of the said vacancies temporarily and on daily wages was made and the selection list was approved as per Resolution at Ext. R2(f). It is also contended that all the persons appointed on daily wage basis were eligible and qualified to be appointed on regular basis as well. Therefore, according to the respondents, the appointments of the petitioners were regularised as there were sanctioned posts.
12. Reply affidavit is filed by the petitioners further clarifying their stand in the matter. It is inter alia contended that the principles of reservation in appointments have been followed by the Library Council while making the appointments.
13. Heard the learned senior Counsel Sri. Sudhakara Prasad appearing on behalf of the petitioners, Sri. C.S. Manilal the learned senior Government Pleader and Sri. P.V. Surendranath, learned counsel appearing for respondents 2 and 3.
14. The learned senior counsel for the petitioners relied upon the following judgments:
i)
A statutory authority, as is well known, must exercise its jurisdiction within the four corners of the statute. It cannot act beyond the same. Any order which is passed by an authority which lacked inherent jurisdiction would be ultra vires. (See Kiran Singh v. Chaman Paswan.)
ii)
If a statutory authority has been vested with jurisdiction, he has to exercise it according to its own discretion. If the discretion is exercised under the direction or in compliance with some higher authority''s instruction, then it will be a case of failure to exercise discretion altogether.
iii)
18. The Act is a self-contained code. All the authorities mentioned therein are statutory authorities. They are bound by the provisions of the Act. They must act within the four corners thereof. The State, although, has a general control but such control must be exercised strictly in terms of Article 162 of the Constitution of India. Having regard to the nature and the manner of the control specified therein, it may lay down a policy. Statutory authorities are bound to act in terms thereof, but per se the same does not authorise any Minister including the Chief Minister to act in derogation of the statutory provisions. The Constitution of India does not envisage functioning of the Government through the Chief Minister alone. It speaks of a Council of Ministers. The duties or functions of the Council of Ministers are ordinarily governed by the provisions contained in the Rules of Business framed under Article 166 of the Constitution of India. All governmental orders must comply with the requirements of a statute as also the constitutional provisions. Our Constitution envisages a rule of law and not rule of men. It recognises that, howsoever high one may be, he is under law and the Constitution. All the constitutional functionaries must, therefore, function within the constitutional limits.
iv) In
26. In the present case, the Examining Committee of the Board had seen the film along with the experts and only after all the members of the Committee as also the two experts gave positive views on the screening of the film, thereafter only the certificate was granted. Therefore, since the expert body has already found that the aforesaid film could be screened all over the country, we find the opinion of the High-Level Committee for deletion of some of the scenes/words from the film amounted to exercising power of pre-censorship, which power is not available either to any high-level expert committee of the State or to the State Government. It appears that the State Government through the High-Level Committee sought to sit over and override the decision of the Board by proposing deletion of some portion of the film, which power is not vested at all with the State.
v)
40. In the matter of the Government of a State, the succeeding Government is duty-bound to continue and carry on the unfinished job of the previous Government, for the reason that the action is that of the "State", within the meaning of Article 12 of the Constitution, which continues to subsist and therefore, it is not required that the new Government can plead contrary to the State action taken by the previous Government in respect of a particular subject. The State, being a continuing body can be stopped from changing its stand in a given case, but where after holding enquiry it came to the conclusion that action was not in conformity with law, the doctrine of estoppel would not apply. Thus, unless the act done by the previous Government is found to be contrary to the statutory provisions, unreasonable or against policy, the State should not change its stand merely because the other political party has come into power. "Political agenda of an individual or a political party should not be subversive of rule of law." The Government has to rise above the nexus of vested interest and nepotism, etc. as the principles of governance have to be tested on the touchstone of justice, equity and fair play. The decision must be taken in good faith and must be legitimate.
vi)
10. This Court in B.N. Nagarajan clearly stated that whereas any irregularity can be regularised but an illegality cannot be. It was furthermore stated that regularisation would not mean permanency. This aspect of the matter has been highlighted in a number of decisions.
11. In
12. The question which, thus, arises for consideration, would be: Is there any distinction between ''irregular appointment'' and ''illegal appointment''? The distinction between the two terms is apparent. In the event the appointment is made in total disregard of the constitutional scheme as also the recruitment rules framed by the employer, which is ''State'' within the meaning of Article 12 of the Constitution of India, the recruitment would be an illegal one; whereas there may be cases where, although, substantial compliance with the constitutional scheme as also the rules have been made, the appointment may be irregular in the sense that some provisions of some rules might not have been strictly adhered to.
12. In relation to almost similar orders, in Post Master General v. Tutu Das (Dutta) it was noticed: (SCC pp. 324-25, paras 20-22)
20. The statement of law contained in para 53 of Umadevi (3) cannot also be invoked in this case. The question has been considered by this Court in a large number of decisions. We would, however, refer to only a few of them.
21. In Punjab Water Supply and Sewerage Board v. Ranjodh Singh, referring to paras 15, 16 and 53 of Umadevi (3) this Court observed: (Ranjodh Singh case, SCC 500 17-18)
17. A combined reading of the aforementioned paragraphs would clearly indicate that what the Constitution Bench had in mind in directing regularisation was in relation to such appointments, which were irregular in nature and not illegal ones.
18. Distinction between irregularity and illegality is explicit. It has been so pointed out in National Fertilizers Ltd. v. Somvir Singh in the following terms: (SCC pp. 500-01, paras 23-25)
23. The contention of the learned counsel appearing on behalf of the respondents that the appointments were irregular and not illegal, cannot be accepted for more than one reason. They were appointed only on the basis of their applications. The Recruitment Rules were not followed. Even the Selection Committee had not been properly constituted. In view of the ban on employment, no recruitment was permissible in law. The reservation policy adopted by the appellant had not been maintained. Even cases of minorities had not been given due consideration.
24. The Constitution Bench thought of directing regularisation of the services only of those employees whose appointments were irregular as explained in State of Mysore v. S.V. Narayanappa, R.N. Nanjundappa v. T. Thimmiah and B.N. Nagarajan v. State of Karnataka wherein this Court observed: [Umadevi (3) case, SCC p. 24, para 16]
16. In B.N. Nagarajan v. State of Karnataka this Court clearly held that the words "regular" or "regularisation" do not connote permanence and cannot be construed so as to convey an idea of the nature of tenure of appointments. They are terms calculated to condone any procedural irregularities and are meant to cure only such defects as are attributable to methodology followed in making the appointments.
25. Judged by the standards laid down by this Court in the aforementioned decisions, the appointments of the respondents are illegal. They do not, thus, have any legal right to continue in service.
(See also State of M.P. v. Yogesh Chandra Dubey and State of M.P. v. Lalit Kumar Verma.)
15. On the other hand, Sri. P.V. Surendranath, while supporting the stand taken by the petitioners, contended that the Committee consisted of 5 members of the Government and they did not exercise any power to dissent such a decision. It is contended that going by the specific provisions under the Act and the Rules, ratification from the Government is not required. But when the same is ratified, the Government cannot take a further decision to cancel the ratification. That apart, before passing Ext. P4, no opportunity was given either to the Library Council or to the employees for a hearing.
16. Sri. Manilal, the Learned senior Government Pleader however referred to various provisions of the Act to indicate the extent of power exercised by the Government in respect of the Library Council. According to the Learned senior Government Pleader, the Government has financial, managerial as well as functional control over the Library Council. Reference is made to Section 7 of the Act which reads as under:
7. Procedure of State Library Council.-
(1) The State Library Council shall transact business by resolutions passed in such manner and in accordance with such procedure as may be prescribed.
(2) Copy of every resolution shall be forwarded to the Government within fifteen days of the passing of that resolution.
(3) The Government may call for any record or information regarding any resolution from the State Library Council and the Council shall be bound to furnish such record or information.
(4) The Government may, after giving reasonable notice to the State Library Council and after hearing its objections if any, suspend or cancel or modify any resolution passed by the Council.
17. It is argued that Ext. P2 Government Order is issued in order to monitor the appointment made by the statutory authorities and to consider whether the same is in line with the judgment in Umadevi''s case (supra). Paragraphs 43 and 45 reads as under:
43. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. The High Courts acting under Article 226 of the Constitution, should not ordinarily issue directions for absorption, regularisation, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because an employee had continued under cover of an order of the court, which we have described as "litigious employment" in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates.
45. While directing that appointments, temporary or casual, be regularised or made permanent, the courts are swayed by the fact that the person concerned has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with open eyes. It may be true that he is not in a position to bargain--not at arm''s length--since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible. If the court were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the court to grant any relief to that employee. A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succour to them. After all, innumerable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment. It is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it. In other words, even while accepting the employment, the person concerned knows the nature of his employment. It is not an appointment to a post in the real sense of the term. The claim acquired by him in the post in which he is temporarily employed or the interest in that post cannot be considered to be of such a magnitude as to enable the giving up of the procedure established, for making regular appointments to available posts in the services of the State. The argument that since one has been working for some time in the post, it will not be just to discontinue him, even though he was aware of the nature of the employment when he first took it up, is not one that would enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touchstone of constitutionality and equality of opportunity enshrined in Article 14 of the Constitution.
18. The Learned Government Pleader also relied upon the following judgments of the Supreme Court:
i)
ii)
21. As pointed recently in M.C. Mehta v. Union of India there can be certain situations in which an order passed in violation of natural justice need not be set aside under Article 226 of the Constitution of India. For example where no prejudice is caused to the person concerned, interference under Article 226 is not necessary. Similarly, if the quashing of the order which is in breach of natural justice is likely to result in revival of another order which is in itself illegal as in Gadde Venkateswara Rao v. Govt. of A.P. it is not necessary to quash the order merely because of violation of principles of natural justice.
25. The "useless formality" theory, it must be noted, is an exception. Apart from the class of cases of "admitted or indisputable facts leading only to one conclusion" referred to above, there has been considerable debate on the application of that theory in other cases. The divergent views expressed in regard to this theory have been elaborately considered by this Court in M.C. Mehta referred to above. This Court surveyed the views expressed in various judgments in England by Lord Reid, Lord Wilberforce, Lord Woolf, Lord Bingham, Megarry, J. and Straughton, L.J. etc. in various cases and also views expressed by leading writers like Profs. Garner, Craig, de Smith, Wade, D.H. Clark etc. Some of them have said that orders passed in violation must always be quashed for otherwise the court will be prejudging the issue. Some others have said that there is no such absolute rule and prejudice must be shown. Yet, some others have applied via media rules. We do not think it necessary in this case to go deeper into these issues. In the ultimate analysis, it may depend on the facts of a particular case.
(iii)
28. A court of law does not insist on compliance with useless formality. It will not issue any such direction where the result would remain the same, in view of the fact situation prevailing or in terms of the legal consequences. Furthermore in this case, the selection of the appellant was illegal. He was not qualified on the cut-off date. Being ineligible to be considered for appointment, it would have been a futile exercise to give him an opportunity of being heard.
34. It is not a case where appointment was irregular. If an appointment is irregular, the same can be regularised. The court may not take serious note of an irregularity within the meaning of the provisions of the Act. But if an appointment is illegal, it is non est in the eye of the law, which renders the appointment to be a nullity.
iv) In
None can claim for regularization based on any instruction or order issued contrary to the law laid down in
19. On an analysis of the judgments relied upon by either side, the following propositions cannot be disputed:
i) A statutory authority must exercise its jurisdiction within the four corners of the Statute. Any order which is passed by an authority which lacked inherent jurisdiction would be ultra vires. [Nautam Prakash DGSVC, Vadtal (supra)]. It has to exercise its own discretion and not on the dictate of a higher authority. [Anirduh Singhji Karansinghji Jadeja (supra)]. The State, although, has a general control but such control must be exercised strictly in terms of Article 162 of the Constitution of India. [Pancham Chand (supra) and Prakash Jha production (supra)].
ii) Unless the act done by the previous Government is found to be contrary to the statutory provisions, unreasonable or against policy, the State should not change its stand merely because the other political party has come into power. [(Andhra Pradesh Dairy Development corporation Federation (supra)].
iii) In the event the appointment is made in total disregard of the constitutional scheme as also the recruitment rules framed by the employer, which is ''State'' within the meaning of Article 12 of the Constitution of India, the recruitment would be an illegal one; whereas there may be cases where, although, substantial compliance with the constitutional scheme as also the Rules have been made, the appointment may be irregular in the sense that some provisions of some Rules might not have been strictly adhered to. [State of Punjab v. Bahadur Singh (supra)].
iv) The Rule of equality in public employment is a basic feature of our Constitution and since the Rule of Law is the core of our Constitution, a court would be disabled from passing an order upholding violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, the Court, while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract. If it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. Merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. [Umadevi) (supra)].
v) When the facts are not beyond dispute, courts can exercise the discretion to refuse certiorari, prohibition, mandamus or injunction even though natural justice is not followed. [M.C. Mehta (supra)].
vi) There can be certain situations in which an order passed in violation of natural justice need not be set aside under Article 226 of the Constitution of India. For example, where no prejudice is caused to the person concerned, interference under Article 226 is not necessary. The "useless formality" theory, is also an exception. [Aligarh Muslim University) (supra) and Ashok Kumar Sonkar (supra)].
20. Having regard to the nature of contentions urged, the first question to be considered is whether the petitioners have a legal right to get regularisation of employment in the light of the judgment in Umadevi''s case (supra). It is not in dispute that in Umadevi''s case (supra), the Supreme Court has held that if an appointment to a public post is not made by following a due process of selection, it is against the constitutional scheme and violates Articles 14 and 16 of the Constitution of India. In fact, the Supreme Court was considering the right of casual or temporary workers to get regularisation in employment. In the said case, the Supreme Court found that casual/temporary employees has no legal right to claim permanency in employment. It is not in dispute that the appointment of the petitioners was made by the Library Council. According to the petitioners, they were appointed by following a due selection process. But, on a perusal of the materials produced by the petitioners in this case, it is not borne out as to whether the appointments were made by inviting applications from the public, by a due selection process that is either by a written test or an interview or after prescribing necessary qualification in that regard. It is also not borne out as to whether the policy of reservation had been complied with. The resolutions passed by the Council are produced as Exts. R2(e) and R2(f). Ext. R2(e) is a decision taken by the Staff Selection Committee on 07/06/2005. It was decided to fill up vacant posts on daily wage basis. It is indicated that 8 L.D. Clerks, 1 Data Entry Operator, 1 L.D. Typist and 1 Driver posts are to be filled up after an interview to be held on 16/06/2005 on daily wages. It is further stated that notice has to be published in the Library Council''s notice board, District Library Council''s office and in the Public Information Department. Ext. R2(f) is the decision taken on 16/06/2005 by which they have approved a rank list for L.D. Clerk, L.D. Typist and Data Entry Operator. There is no material available to indicate the qualification prescribed for the said posts, there is no public notice issued inviting applications, the selection was only by way of an interview. Therefore, it is clear that the appointments were not made adopting any recognised procedure for appointment.
21. Then the question is whether such persons could be regularised in service. The Learned Senior Government Pleader relies on the various provisions of the Act and Rules to indicate the control, the Government has in respect of the Library Council. But the learned senior counsel for the petitioners relies upon Rule 123(2) of the Rules to indicate that all appointments by direct recruitment shall be made in consultation with the Staff Selection Committee constituted by the Library Council. Further reference is made to Rule 100 in order to indicate that the Library Council shall, in addition to the powers and duties conferred on it by the Act and subject to the provisions thereof, has the power to fix the staff pattern of Taluk Library Council/District Library Council and State Library Council and sanction payment of salaries accordingly with the approval of the Government. It could be seen that the Rule permits the Library Council to make appointments, fix the staff strength etc. But, if, as a matter of procedure, sanction of the Government is requested for, though not statutorily prescribed, nothing prevents the Library Council in following such a procedure especially since the grant-in-aid and other public money is being utilised for meeting the expenditure of pay and allowances of the employees concerned. It is relevant to note that a decision was taken on 28/06/2007, to make appointments in Library Council through Public Service Commission. The resolution is Ext. R2(l) and the decision was informed to the Government on 04/07/2007 as evident from Ext. R2(m). Respondents 2 and 3 have a case that no action was taken by the Government in that regard. But it is the admitted case that the petitioners were regularised in service only as per Ext. P1 dated 06/10/2008 effective from 01/06/2006. The question is whether such a regularisation of appointment could be made in the light of the judgment of the Supreme Court in Umadevi''s case (supra). On a perusal of Ext. P1, it could be seen that such regularisation is against and contrary to the law laid down by the Supreme Court. Even going by Ext. P1, it is clear that the petitioners were engaged on daily wage basis. I have already opined that there is no material to indicate that a proper selection procedure had been followed giving an opportunity to the persons aspiring for the job to participate in the selection process. There is no public advertisement issued other than in three places mentioned above. In that view of the matter, Ext. P1 is per se against the judgment of the Supreme Court in Umadevi''s case (supra). True, as argued by the learned senior counsel appearing for the petitioners in the cases referred above, a deviation can be made, if there was a regular selection procedure. The Government has taken a contention that there was no regular selection procedure. Though respondents 2 and 3 have produced certain records, it does not instill confidence on this Court to come to a view that the Library Council had followed a regular selection procedure. That being the situation, if the Government had subsequently cancelled the decision taken by the Government approving Ext. P1, this Court cannot find fault with the Government in taking such a view in Ext. P4. Violation of natural justice cannot be a ground to set aside Ext. P4, in the light of the fact that the decision at Ext. P1 was clearly contrary to the law laid down by the Supreme Court in Umadevi''s case, and therefore illegal.
Under these circumstances, I am of the view that the petitioners have no legal right to challenge Ext. P4 and accordingly the writ petition is dismissed.
