N. Vijayakumar vs The State of Tamil Nadu and Another

Sathiadev, J.—Petitioner in W.P. No. 8506 of 1989 is the appellant and the three respondents therein are the respondents herein.

The writ petition was filed to quash the order by which third respondent has been temporarily posted as a Librarian in the High Court, Madras

and to direct the petitioner to be posted in her place. In the affidavit filed in support of the writ petition, he states that he entered service in the High

Court as Junior Assistant in 1978, and at that time he had acquired a B.A. Degree, and thereafter he acquired Degrees in M.A. and B.L. He

joined the one year course in Madras University for Bachelor of Library and Information Science in 1987. He saw an advertisement in Dinamani

dated 1.10.85 about a vacancy existing for the post of Librarian in the High Court, and filed an application on 15.6.1987, and thereafter furnished

his entire bio-data on 30.12.1987. In spite of himself possessing M.A., B.L., and B.L.I.S., Degrees, and having gained experience by working in

the High Court, he was not appointed for the said post. He sent reminder applications on 21.1.88 and 30.1.88, but there was no response to

them. G.O.Ms. No. 1912, Home (Court-V) dated 1.9.1988 was issued by Government sanctioning a post of Lirarian, and therefore, he sent an

application on 1.4.1989. On 28.1.1989 he saw an advertisement in The Hindu calling for applications for the post of Librarian, and hence, sent his

application on 30.1.1989 and this was followed by another application on 1.2.1989. He also sent a letter on 12.6.1989 stating the required

particulars and also about his eligibility to be appointed. Another letter was also sent by him on 20.6.1989. On coming to know that third

respondent, an outsider, who is not a qualified candidate for various reasons having been appointed on temporary basis, which is unjust, improper

and illegal and her posting being a product of mala fide motives, he had to file the writ petition seeking for the reliefs abovestated.

Second respondent in the counter-affidavit had stated that first respondent in G.O.Ms. No.2900, Home dated 17.12.1984 had sanctioned

onepost of Librarian to be appointed in the High Court initially for a period of one year, but due to administrative reasons, the said post could not

be filled up. As per Government Order, if the sanctioned post is not filled up within a period of six months from the date of sanction, the post will

lapse. Since the post so sanctioned lapsed, the first respondent was addressed for revival of the post, and by G.O.Ms. No.1912, Home dated

1.7.1988, the post was sanctioned for a period one year. It being a hew post arid there being no ad-hoc rules governing the service conditions of

the post of Librarian steps were taken to fill up the post by calling for applications through an advertisement from candidates who have a basic

degree with a degree in Library Science with preference to be given to Law graduates, and to candidates with two years experience as Librarian.

Accordingly, applications were invited by advertisement in the Hindu and Dinamani on 28.1.1989 and 30.1.1989, but there being an erroneous

criteria as to qualification published therein and as the post sanctioned was to lapse on 11.6.1989; under Rule 15(a) read with Rule 15(c) of the

High Court Service Rules (hereinafter referred to as the Rules) third respondent was appointed temporarily for a period of three months. After

referring to the nature of error committed in the advertisements made, it is claimed that as far as appellant is concerned, though he had acquired the

qualifications as claimed by him, there is no statutory duty cast upon the second respondent to consider his application and that there is no

provision in the Rules for appointing a Junior Assistant to the post of Librarian.

When the writ petition came up for disposal, by order dated 31.8.1989, the Learned Judge by taking note of the error which had crept in the

advertisement made in the newspapers in January, 1989 and of the fact that a fresh advertisement had since appeared in ""The Hindu"" dated

30.8.1989 calling for applications for the same post, dismissed the writ petition by observing that it is open to the appellant to apply for the said

post pursuant to the advertisement dated 30.8.1989. In the absence of consideration of any of the contentions raised by him in the writ petition, it

had resulted in the filing of this writ appeal.

Pending disposal of this appeal, another counter-affidavit has been filed by the second respondent stating that for the advertisement made as

early as 1.10.1985 for filling up the post of Librarian, out of the applications received, only one fulfilled the requisite qualifications, and even though

he was asked to appear for the interview on 4.1.1986, he did not appear. Then an attempt was made to fill up the post on deputation basis, and it

also proved futile. Therefore, a decision was taken to readvertise for the post inviting applications from persons qualified in Bachelor of Library

and Information Science, and that preference would be given to candidates with Law qualification. But in the advertisement made on 28.1.1989, it

was stated that applicant should possess a Degree in Law and a Degree in Library Science, and that preference will be given to candidates with

Law qualifications and who possess two years experience. This being an obvious mistake committed, and as it could be noticed later on, a re-

advertisement was made on 30.8.1989 specifiying the appropriate qualifications. Hence, attribution of mala fide has no basis. As for third

respondent, she was appointed temporarily on 9.6.1989 for a period of three months under Rule 15(a) read with Rule 15(c) pending regular

appointment to be made for the post. It had to be done to avoid the post lapsing on 11.6.1989. The application made by appellant pursuant to

advertisement dated 28.1.1989 along with other applications is pending.

As for third respondent, she has stated that she had joined the post pursuant to the appointment order received by her, and that she is a fully

qualified person with sufficient experience to hold the post, and therefore, there is no illegality in herself being temporarily appointed.

Though this appeal had come up for hearing on different dates and extensive submissions had been made by respective Counsel, the crux of the

matter is to find out, whether there was any impropriety or illegality in appointing third respondent as Librarian on temporary basis, in the manner

as done.

An advertisement appeared on 28.1.1989 in ""The Hindu"" for filling up the post of Librarian in the High Court, and the qualifications as

advertised are that the applicant should possess a Degree in Law and a Degree in Library Science, and that preference will be given to candidates

with Law qualification and who possess two years experience. As for age limit, the applicant should not have completed 28 years for O.C. and 33

years in the Case of SC/ST and B.C. Candidates as on 1.7.1989. The last date for sending applications was 6.2.1989. Thirty-four applications

were received within the due date, and eleven applications were received beyond the due date. 25 out of 34 applicants possessed only a Degree in

Library Science, and 3 applicants had acquired P.G. Diploma in Library and Information Science, but were not qualified in Law. One applicant

had secured Diploma in Library Management and a Degree in Law. Only two applicants possessed with Degrees in Law and in Library and

Information, Science. Appellant was one among them, but he had crossed the prescribed the age of 33 years for B.C. Community. As on

1.7.1989, he was 37. As for the other applicant, she was aged 45. Regarding third respondent, she did not possess a Law Degree, she being a

M.A., B.Ed., M.L.I.S., and she was also over-aged because she was 35 as on 1.7.1989. She belongs to Backward Class like the appellant.

Hence on their own showing, all the three considered above have crossed the prescribed age limit, but out of them, two of them possessed both

Degrees in Law and in Library and Information Science. As for experience i.e. being associated with Library for two years, the files of the second

respondent do not disclose any application of mind thus reflecting that it has been given a secondary role. In any event, it is a prescribed

requirement. On a note put up as to whether the 19 applicants who possess a basic Degree and a Degree in Library and Information Science, may

be called for an interview, and whether three applicants who belong to the B.C. Community and who are in service may be treated as transferee

candidates and may be called for an interview, and whether the one applicant, who possesses only a Degree in Library and Information Science

may be called for an interview; it was ordered to be done by the Hon''ble the Chief Justice. As for one of the two applicants, who possessed both

the Degrees in Law and Library Science and who had crossed the age limit, he was not to be called for the interview. One of the Learned Judges

of this Court was requested to interview the concerned applicants. It was at that stage, the error committed in the advertisement as made was

noticed, and a note was put up as to whether a fresh advertisement could be issued prescribing the qualifications as fixed by the Hon''ble the Chief

Justice by his order dated 4.1.1989. It is at that juncture, and even before advertisement could be properly published, third respondent came to be

appointed by order dated 9.6.1989. Rule 15(a) and (c) of the Rules are to the following effect:

(a) Where it is necessary to fill a vacancy in any division, category, sub-category or post in the service and there would be undue delay or

administrative inconvenience in appointing a person who is qualified for or entitled to such appointment or a duly qualified person is not available,

the. appointing authority may appoint any other suitable person temporarily until an appointment is made in accordance with these rules.

... ... ... ...

(c) A temporary appointment of a person under Clause (a) shall not be made for a period exceeding three months at a time.

It was pointed out by the Registry in a note put up that the revalidating G.O.Ms. No.1912, Home (Courts V) dated 1.9.1988 would lapse on

11.6.1989, and therefore, whether a temporary appointment could be made so that the post could be kept alive. It is on such a note put up the

learned Officiating Chief Justice had directed third respondent to be appointed temporarily until vacancy is filled up on a permanent basis.

Mr. T. Fenn Walter, learned Counsel for the appellant, would respectfully submit that, even for a choice to be made from and out of the

appellant and the third respondent, and that too when it is asserted by the second respondent that the advertisement relating to qualifications had

not been correctly made and steps were taken to readvertise for filling up the vacancy, the third respondent, who is one of the applicants, and who

does not possess two years experience but who possess a Law degree and who is over-aged, could not have been appointed to the post of

Librarian, when appellant, who is similarly an overaged person and who does not possesses two years experience but who possesses the degree

qualifications as advertised twice and which were no different from that of the advertisement made as early as 1985, and when he is in the High

Court Service already, and his application having been entertained for being considered for interview under Rule 15(2) and (c) he should have

been temporarily appointed. Any preference to a rank outsider viz., the third respondent, is arbitrary, unjust and illegal. Though the post of

Librarian was created on a temporary basis, it is by virtue by the CO., it has become a post governed by High Court Service Rules and therefore,

when second respondent had relied upon Rule 15(a) and (c) to appoint the third respondent; it is the appellant, who ought to have been appointed

on temporary basis. It is only when a qualified person is not available, any other suitable person could be appointed. Though in essence, the

appellant and the third respondent are not qualified fully as per the advertisement, as between the two, one in the Service, and who had been found

to be eligible to apply for the post, should have been appointed on temporary basis.

There is considerable force in this contention because for the choice of third respondent from and out of the records, there is nothing to

indicate as to why when 34 applications were received, and that too, when third respondent does not possess one of the two educational

qualifications as advertised, she should have been appointed on temporary basis. Even if the appointment to be made is on a temporary basis, it is

wholesome to eschew arbitrariness. As between a rank outsider and the one who is already in service, and who has been found to be eligible to

apply; the normal thing expected of an appointing authority is to make the temporary appointment within the folds of the service, and more

particularly when the applicants are to be shortly interviewed. In this matter, at the time when the appointment order was issued to the third

respondent, there was a realisation by the Registry that the advertisement was not in accordance with the prescribed qualifications. How the third

respondent from among those applications based on such an advertisement, could have been appointed is unexplained.

Looked at from the point of view of what should have been the qualifications, what was ordered on 4.1.1989 is to the following effect

The post of Librarian may be readvertised, since candidates with Law qualification are not available. In the re-advertisement it may be stated that

the qualification in Law is preferable. The last date may be fixed as 6th Feb''89 for receiving applications.

The preference that could be given for possessing Law qualification would tilt in favour of the appellant because third respondent had not acquired

a Law Degree.

Another factor which looms large is that it is not as if 11.6.1989 was a dead end from which this created post could never to retrieved by the

High Court. The proposal to appoint a Librarian in the High Court started as early as 1983. In G.O.Ms. No.2900, Home (Courts V) Department,

dated 17.12.1984, the Government sanctioned one temporary post of Librarian from the date of appointment or till the need ceases, whichever is

earlier. The Registry, which has sworn, before Court that unless within six months the post sanctioned is utilised, it would lapse, had lethargically

processed the requirements in calling for applications and filling up the post. It was only on 1.10.1985 an advertisement was made in newspapers

calling for applications and the interview was fixed to be held on 4.4.1986. By that time, one year and three months had already lapsed. To that

advertisement the educational qualifications prescribed were that the applicant should have a Degree in Law and a Degree in Library Science. It is

stated by the second respondent that only one candidate possessed the qualifications, but he did not turn up for interview. If. was on 17.2.1986,

the Government was belatedly addressed stating that the process of applications has reached the final up within six months from the date of issue of

G.O.Ms. No.2900, Home (Courts V) dated 17.12.1984 and sought for permission to fill up the post. This request was approved in G.O. Rt.

No.3777, Home, dated 22.9.1986. Thereafter another 15 months passed by and the Registry had written on 27.1.1988 seeking for necessary

permission to fill up the post, and it was ordered in G.O.Ms. No.1912, Home (Courts V) dated 1.9.1988. After taking 41/2 months, the

advertisement appeared only on 28.1.1989 calling for applications. By that time, the Honourable the Chief Justice having revised the qualifications,

taking note of the difficulty in securing candidates with law qualification; the advertisement was directed to be published with the revised

qualifications, but still the Registry had chosen to advertise mentioning that the applicant should possess a Degree in Law''.

Thus for 41/2 years, the Registry in spite of being fully aware as to how the post would lapse, having in a lethargic and casual manner

processed this matter, and being fully aware that, as done on two earlier occasions, it could secure necessary permission as obtained in G.O.Rt.

No.3777, Home dated 22.9.1986; yet it is claimed that if the post is not filled up by 11.6.1989 with one of the aspiring applicants, it would lapse if

least convincing. Al least if the Registry had come forward to claim that if the post is not filled up, the administrative set up would suffer or that the

functioning of the library would be considerably handicapped, there could have been some relevance in the hurried appointment of the third

respondent. The files produced do not disclose any such aspect having ever been thought of nor the counter-affidavit would refer to those

exigencies.

It is rather surprising as to how when the Hon''ble the Chief Justice had revised the educational qualifications; the Registry could still advertise

with the qualifications stipulated earlier without any consequence flowing from it and without any realisation that a large number of aspirant are

being misled by this lack of promptitude on the part of the Registry. What is more disappointing to find in the counter-affidavit filed by the Registry

is that, the application received from the appellant pursuant to the advertisement published in ''The Hindu"" dated 28.1.1989 is pending along with

the other applications It means that they are pending consideration. By the time of the filing of this counter Taffidavit, a fresh advertisement has

already appeared on 30.8.1989 with revised qualifications and applications have been called for. In spite of it, it is rather strange that appellant

should be told that his earlier application is pending consideration.

Hence, the reason put forth by the Registry that the post of the Librarian would irretrievably lapse on 11.6.1989 has no relevance in the

background of what had happened during the past five years relating to this post. The Registry which takes five years to fill up a post of this nature,

and in the manner it had been done, could never claim that it functioned efficiently or competently during that period.

During the course of the arguments by respective Counsel, point arose as to whether without framing rules or even ad-hoc rules, is it open to

an appointing authority to call for applications for filling up a temporary post. It was contended by learned Counsel for the appellant that a noting

made in a file could not be termed as an executive order and in the absence of a formal order being passed, second respondent could not rely

upon the noting dated 4.1.1989 of the Hon''ble Chief Justice. Both the learned Advocate- General appearing for respondents 1 and 2, and Mr. E.

Padmanabhan for third respondent, would rely upon, Ramesh Prasad Singh Vs. State of Bihar and Others, in which it was held that in the absence

of rules, qualifications for a post can be validly laid down in the self-same executive order creating the service or post and filling it up according to

those qualifications. They would refer to Article 229 of the Constitution of India, which confers power on the Chief Justice of a High Court to

appoint officers and servants to the High Court, and under Article 229(2), the rules made shall so far as they relate to salary, pension, leave or

pension require the approval of the Governor of the State. Hence it is claimed that the sanction given by the Government was only in respect of

those mentioned in Article 229(2), and as for the creation of the post and the qualifications to be prescribed, it is for the Hon''ble the Chief Justice

to decide.

In State of Andhra Pradesh and Another Vs. T. Gopalakrishnan Murthi and Others, , it was held that in respect of such of those matters

mentioned in Article 229(2), the approval of the Governor means the State Government. In Chief Justice of Andhra Pradesh and Others Vs.

L.V.A. Dixitulu and Others, , it was held that the word ''appointment'' hi Article 229(1) includes the power to suspend, dismiss, remove or

compulsorily retire from service etc. including the power to prescribe their conditions of service and the sole preserve is the Chief Justice., except

to a very limited extend indicated in the provisos.

In M. Gurumoorthy v. Accountant General Assam S.C. AIR 1971 SC 1950 22 FJR 327 it was held:

...In the matter of appointments even the legislature could not abridge or modify the powers conferred on the Chief Justice under Clause (1)....

Except to the limited extent as found in Article 229(2), all other rules in respect of conditions of service do not require the approval of the

Governor. Therefore, regarding the qualifications for a particular post, it is for the Honourable Chief Justice to decide, and it could be changed

from time depending upon the exigency of the matter. It was found that candidates with both Law Degree and Library Science Degree were not

readily available, and therefore, on 4.1.1989, the qualifications were revised. It being not the procedure of this Court to issue formal orders on

decisions so taken, nothing made in the file has to be treated as an executive order.

The allegation of mala fide being vague, it docs not call for any deeper consideration.

Hence, for the reasons above stated, it is held that when Rule 15(a) of the Rules had been invoked under the circumstances, as between an

outsider and one already in service, and when both of them not being fully qualified as advertised on 28.1.1989 and even as per executive order

dated 4.1.1989; third respondent could not have been preferred to that of the appellant. She having ceased to hold office on 9.9.1989, and now

that a fresh advertisement having been made on 30.8.1989 calling for applications, it is now for the Registry to seek for extension of time from

Government and complete the process of selection and appointment for the post of Librarian expeditiously from and out of the applications

received pursuant to advertisement dated 30.8.1989. The applications received based on advertisements dated 28.1.1989 and 30.1.1989 cannot

be considered at all. With these directions, this writ appeal is allowed. No costs.