Thammaiah A. vs State of Karnataka and Another

In this petition under Art. 226 of the Constitution, the petitioner has challenged the validity of the notification, dt. 25th Sep. 1980 issued by the first respondent in No. DPAR 276 SHD 80 appointing the 2nd respondent Sri P.K. Patil, Librarian, University of Mysore, as State Librarian and Head of the) Department of Public Libraries, Bangalore, on deputation basis for a period of two years with effect from the date he assumes charge of the post.

The petitioner belongs to Class-II Gazetted cadre and he is now working as Chief Librarian. The aforesaid Notfn. is challenged in this WP on the ground that the appointment of the 2nd respondent as State Librarian by way of deputation is impermissible, in law in view of the provisions contained in the cadre and Recruitment Rules known as Karnataka State Library Services (Recruitment) (First-amendment) Rules, 1976 (hereinafter referred to as the ''Rules''). It is the case of the petitioner that as he is eligible for promotion to the post of State Librarian under the Rules, the appointment of the 2nd respondent on deputation is opposed to the Rules.

In thestatement of objection filed by the first respondent, it is contended" that under Rule 16 (a) (iv) of the Karnataka Civil Services (General Recruitment) Rules; 1977(hereinafter referred to as the ''General Recruitment Rules''), the State Government is competent to bring any official with specialised qualifications in the service of a University established by law in India by way of deputation. The further case of the 1st respondent is that the case of the petitioner had also been considered but he could not be selected for the post in question on account of adverse remarks in the confidential report pertaining to the petitioner for the relevant period.

In view of the stand taken in the statement of objections of the 1st respondent, the petitioner has filed a reply statement contending that the adverse remarks referred to by the 1st Respondent were not communicated to the petitioner; therefore, it was not permissible for the State to rely upon the same to deny promotion to the petitioner. It is also contended in the reply statement that the post of Chief Librarian of the University of Mysore which the 2nd respondent has held at the relevant point of time, is not equivalent to the post of State Librarian and no order was passed by the State Government holding that the post held by the 2nd respondent was equivalent to the post of State Librarian. In view of this contention, the first respondent was afforded an opportunity to file additional statement of objections, if any. Accordingly, the first respondent has also filed the additional statement of objections stating that the post held by the 2nd respondent is equivalent to the post in question because of the fact that both the posts enjoy the same pay-scale. It was also contended that the post of State Librarian was an important post requiring dynamism for implementing various programmes and schemes relating to Library movement in the State on sound lines; therefore, it was found necessary to select a person from outside the Department possessing the requisite qualifications on deputation basis, as in the opinion of the first respondent, the officials of the department did not meet the said requirements; therefore the service of the 2nd respondent was taken on deputation having regard to the specialised qualifications and experience possessed by him.

As far as the 2nd respondent is concerned, he has also entered appearance and has filed the statement of objections disclosing the special qualifications possessed by him and he has also taken a stand that the deputation is justified having regard to the provisions contained in Rule 16 (a) (iv) of the General Recruitment Rules.

Having regard to the rival contentions raised on behalf of the petitioner and the respondents, the following points arise for consideration:

(1) Having regard to the provisions contained in the Rules, as amended by the Karnataka State Library Services (Recruitment) (first Amendment) Rules, 1976, whether it was open for the first respondent to fill up the post of State Librarian by way of deputation?

(2) Whether the appointment of the 2nd respondent as State Librarian by way of deputation falls within the ambit of Rule 16 (a) (iv) of the General Recruitment Rules?

(3) Whether the case of the petitioner can be held to have been considered for promotion in accordance with law?

Point No. (1): The relevant cadre and recruitment Rules providing for filling up of the post of State Librarian are as follows: Schedule

Category of Posts Method of Recruitment Minimum qualification and period of probation

1 2 3

State Librarian Class I Post

(i) By appointment of the person holding the post of Curator of Libraries immediately before the establishment of the State Central Library;

(ii) If the person holding the post of Curator referred to in item (i) is not suitable for appointment by promotion, by selection from the cadre of Chief Librarian and Deputy Librarian; and

(iii) If no suitable Officer is available for appointment by promotion, by direct recruitment.

For appointment under item (i) of Col (2)

For promotion and for direct recruitment: should be a holder of 1. Bachelor''s degree of a University established by law in India;

A degree or diploma in Library science of a University established by law in India secured alter not less than one academic year''s course;

Not less than ten years working experience in a Library recognised by Government.

Not less than forty years of age.

Should have passed the following Departmental examinations:

i) Kannada Language test.

ii) General Law (Part-I and II).

iii) Accounts (Higher)

Item 5 shall be omitted."

According to the aforesaid Rules the post has to be filled up by appointment of the person holding the post of Curator of Libraries immediately before the establishment of the State Central Library, or if such a person is not available, by promotion by selection from the cadre of Chief Librarian and Deputy Librarian; if the officials belonging to the 2nd category also are not available, then the post will have to be filled up by direct recruitment. Qualifications for promotion as well as for direct recruitment have also been prescribed as enumerated in column No. 3 of the aforesaid Rules. Thus, from the aforesaid Cadre and Recruitment Rules, it is clear that the post of State Librarian has to be filled up in the manner provided therein.

But, the question for consideration is whether it is open for the State Government to fill up the post in question, by way of deputation of an official belonging to the University service; in spite of the fact that the aforesaid Rules provide for manner and the method in which the post of State Librarian has to be filled up. Rule 16 of the General Recruitment Rules, among other things provides that notwithstanding anything contained in the General Recruitment Rules or the Rules for recruitment specially made in respect of any service or post, the Government may for reasons to be recorded in writing appoint to a post, an officer holding a post of an equivalent grade by transfer or by deputation from any other service of the State for recruitmerit to which the General Recruitment Rules apply, The proviso to clause (a) thereof, further provides that appointment under clause (a) shall notbe, (1) to a post lower than that held by such officer save with his consent (2) to a post higher than the post held by such officer except when the Government is of the opinion that there is no other equivalent post to which such officer can be appointed Sub-clause (iv) of clause (a) thereof which is relevant for our purpose further provides that in the case of appointment to a post in the State Civil Service Class-I on deputation, a person with specialised qualifications in the service of a University established bylaw in India and holding an equivalent post for such period not exceeding five years and on such terms as the Government may in each case determine. Thus, the aforesaid Rule provides that for reasons to be recorded inwriting and on ascertaining that the requirement of subclause (iv) of clause (a) of Rule 16 of the General Recruitment Rules are satisfied, it is open for the State Government, notwithstanding the provisions contained in the relevant Rules of recruitment, to appoint to a post in the State Civil Services Class 1, on deputation, a person: (i) with specialised qualifications in the service of an University established by law in India; (ii) holding equivalent post, (iii) for such period not exceeding five years and or such terms as the Government may in each case determine.

It is contended that Rule 16 of the General Recruitment Rules, cannot have over-riding effect on the Cadre and Recruitment Rules, therefore, even if Rule 16 of the General Recruitment Rules provides for appointment by way of deputation as long as there are suitable persons available under the Cadre and Recruitment Rules. the provisions of Rule 16 of the General Recruitment Rules cannot at all be availed of. Rule 16 of the General Recruitment Rules makes it clear that though the relevant Cadre and Recruitment Rules may provide for recruitment, to the post either by promotion or by direct recruitment, but nevertheless, for the reasons to be recorded in writing it is open for the State Government to make an appointment to a post either by transfer or by deputation in accordance with the provisions contained in the said Rule. Therefore, it is not possible to hold that in the presence of the Cadre and. Recruitment Rules providing for filling up the post in a particular manner, the State Government has no power to fill up that post by way of deputation. Such an interpretation will result in nullifying Rule 16 of the General Recruitment Rules and thereby the very object which is sought to be achieved by such a Rule will be defeated. Therefore, it is notpossible to accept such an interpretation. The very object of this Rule, even in the presence of relevant Cadre and Recruitment Rules, is to empower the the State Government in case of necessity for the reasons to be recorded by it in writing to appoint to a post either by transfer or by deputation in accordance with the provisions contained therein. It is to serve this object, the Rule opens with non-obstante clause. The object of the non-obstante clause irrespective of the relevant Rules of Recruitment is to enable the State Government to make an appointment by way of deputation or transfer, subject to the conditions laid down in Rule 16 of the General Recruitment Rules. Hence, it is not possible to hold that the State Government has no power to make appointment to the post inquestion by way of deputation Thus, Point No. (1) is answered accordingly.

10.Points Nos. (2) & (3): The contention that still remains to be considered is as to whether the reasons given by the State Government for filling up the post are justifiable Consideration of this contention will also cover Point No. (2). In the instant case, the records pertaining to the case have been made available. Or. going through the records, it is found that along with the petitioner, several other officials who are considered to be eligible for promotion to the post in question have also been considered by the State Government. It is not necessary to refer to the consideration of the case of other officials since no grievance is made by them inasmuch as they have not challenged either the deputation of the 2nd respondent or denial promotion to them. It is sufficient if it is referred to the case of the petitioner only. In respect of the case of the petitioner, whose name is found at Serial No. 6 of the list of officers considered for promotion, it is stated in the office note as follows:

"The officer at Serial No. 6 has fallen short by one month and 6 days to complete 40 years on the date the post is to be filled up. His case can be considered if it is agreed to relax age limit. According to the C and R. Rules, the officer should not be less than 40 years, since the provision does not say that the officer to be selected should have completed 40 years of age the case of the officer at serial No. 6 in the statement may also be considered."

Another reason given is that there are adverse remarks in the confidential report pertaining to the petitioner for the period ending 31-3-1979 which are as follows:

"There were occasions when he gave room for complaints against him. He is in the habit of sending representations direct to Government violating Conduct Rules. He has not maintained good relations with his subordinates."

It is also further stated in the office note that the post of State Librarian is an important position requiring considerable dynamism for implementing the programme and schemes and organising the Library movement in the State on a sound basis. It is also further stated that for the selection of the State Labrarian. the aforesaid factors will have to be taken into account. Ultimately, the concerned Minister and the Chief Minister have agreed that the 2ndrespondent is a fit person to be appointed to the post in question, on deputation. This order was passed on 9.9.1980. On course on 9.9.1980, when the decision was taken for filling up the post of State Librarian by way of deputation, the petitioner had already completed 40 years age. Therefore, the case of the petitioner can be said to have been overlooked only on the ground that there were adverse remarks to the aforesaid effect in the, confidential report pertaining to the petitioner for the period ending 31.3.1979. I will take up a little later the contention of the petitioner that the adverse remarks have not been communicated to the petitioner; therefore, it is not permissible for the State to rely upon the same to deny promotion to the petitioner.

The first respondent has taken a stand that under Rule 16 (a) (iv) of the General Recruitment Rules, it is competent to bring an official with specialised qualifications in the service of a University established by law in India by way of deputation if other conditions mentioned in the. Rule are satisfied. Rule 16 (a) (iv) of the General Recruitment Rules reads as follows:

"In the State Civil Services Class-I on deputation, a person with specialised qualifications in the service of a University established by law in India and holding an equivalent post for such term as the Government may in each case determine."

Regarding the specialised qualifications, along with the statement of objections, the 2nd respondent has produced his bio-data, the correctness of which has not been disputed. According to the bio-data, the 2nd respondent possesses the Mowing academic qualifications viz., Degree in Master of Arts (Economics and Political Science) of the Karnataka University and LL.B., of Karnataka University. Regarding professional qualifications, the 2nd respondent has obtained Post Graduate Diploma in Library Science of the University of Bombay and Master of Arts (Library Science) University of Chicago (U.S.A.). He has also discharged several professional assignments and thereby has gained four years experience abroad viz.,(i)Reference Librarian, University on Tasmania, Hobart (Australia) in the year 1961-62. (ii) Reference Librarian, University of North Carolina Library, Chapal Hilt, NC., U.S.A. in the year 1962-63; Bibliographer, Law School Library, University of Chicago, in the year 1963-64 and (iv) Professional Librarian (Cataloguing Section), Descriptive Cataloguing Division, Library of Congress, Washington, D.C. in the year 1964-65. In addition to this, he has got experience in India as mentioned in 5 (b) of the bio-data and also experience in the University as mentioned in 6 (c) of the bio-data. He was also the Head of the Department of Library Science, University of Mysore. In addition to this, he has published several papers as mentioned in the bio-data. Thus, it is not possible to agree with the contention of the petitioner that the 2nd respondent does not possess specialised qualification. Under the Cadre and Recruitment Rules, the length of experience and the educational qualifications prescribed for the post are: (1) Bachelors degree of a University established by law in India; (2) A Degree or Diploma in Library Science of a University established by law in India secured after not less than one academic year''s course; and (3) not less than 10 years working experience in a Library recognised by Government. The 2nd respondent, as stated above, possesses additional qualifications such as Post Graduate degree not only in Arts, but also in the concerned subject viz., Library Science and added to that he has got teaching experience and has completed several professional assignments referred to above. Therefore, there is no difficulty whatsoever in, holding that the 2nd respondent possesses specialised qualifications.

1) In this connection, another contention petitioner is that the post of Head of the Department of Library Science of the University of Mysore which is held by the 2nd respondent, cannot be considered to be equivalent to the post of State Librarian in question. With regard to this contention, there is no material placed by the petitioner to hold that the post of the Chief Librarian and Head of the the Department of Library Science of Mysore University cannot be considered to be equivalent to the post of State Librarian in question. In the additional reply statement, the petitioner has relied upon Sec. 62 of the Karnataka University Act. That does not give any assistance for coming to the conclusion that the post of the Chief Librarian of the University of Mysore is not equivalent to or is inferior to the post of State Librarian. The Chief Librarian of the University of Mysore is also the Head of the Library Science and also the Library Department of the University. The 2nd respondent, as Head of the Department of Library Science had been in charge of the courses leading to Bachelor''s degree in Library Science and also Master''s degree in Library Science and Ph.D. Programme. Thus, the post of Head of the Department of Library Science of the University of Mysore is not only associated with the duties of academic nature but also with the responsibility of administration of the Department. Therefore, in the absence of any other material, it is not possible to hold that the post of the Head of the Department of Library Science of the University of Mysore is not equivalent to the post of state Librarian in question. The State Government, while deciding to have the services of the 2nd respondent on deputation, though in does not appear to have taken a decision in categorical terms that the post held by the 2nd respondent isequivalent to the post of State Librarian, but nevertheless, it has come to the conclusion on the basis pay scale of the 2nd respondent that heis a fit person to be considered for the post of State Librarian. Thus, the order passed in this regard by the State Government on consideration of the note put up by office that the 2nd respondent be appointed asState Librarian on contract basis cannot for held to be opposed to the provisions of sub-clause (iv) of clause (a) of Rule 16 of the General Recruitment Rules. Point No. (2) is thus answered against the petitioner.

The contention ofthe petitioner that his case has not been considered in accordance with law, deserves to be accepted. It is not disputed that the adverse remarks entered in the confidential reports of the petitioner for the period ending 31.3.1979 have not been communicated to the petitioner even to this date. A Division Bench of this Court, in the case of State of Karnataka v. V.K. Japali, (1980) 2 Kar.L.J. 10, has held that the communication of adverse remarks in the confidential reports isa statutory obligation under the Rules and it would therefore be impermissible for the Government to act upon non-communicated remarks for denying promotion. That being so, the State Government, in the instant case, ought not to have relied upon the adverse remarks in the Confidential reports of the petitioner for the period ending 31-3-1979 without communicating the same to the petitioner and without affording him an opportunity to make representation as per Rule 6 of the Karnataka Civil Services (Confidential Reports) Rules. 1976. Thus, it is clear that the ease of the petitioner for promotion to the post of State Librarian has not been considered in accordant with law. In. other words he is denied of the promotion on the ground that there are adverse remarks made in the Confidential reports of the petitioner which have not been communicated to him. Thus. Point No. 3 is answered in favour of the petitioner.

1) In view of this, a writ in the nature of Mandamus shall have to be issued to the State Government to consider the ease of the petitioner for promotion In case, the State Government wants to rely upon the adverse remarks made in the confidential reports of the petitioner for the period ceding 31st March 1979, it shall have to communicate the adverse remarks to the petitioner and afford him an opportunity to make a representation as required by Rule 9 of the Karnataka Civil Services (Confidential Reports) Rules, 1976.

The above conclusions reached by me do not necessarily result in quashing the impugned notification appointing on deputation the 2nd respondent as Stale Librarian. The very appointment expires shortly on the expiry of the period mentioned in the notification. further, communication of the adverse remarks to the petitioner and affording him an opportunity to make a representation against such adverse re-remarks and then to consider the case of the eligible officials for the post, of State Librarian will take considerable time; therefore, it is not necessary to quash the notification appointing the 2nd respondent on deputation for a limited period as State Librarian merely on the ground that the case of the petitioner has not been considered by the Government, in accordance withlaw.

For the reasons stated above, a writ in the nature of Mandamus shall issue to the State Government to consider the case of the petitioner and also the other eligible officials for promotion to the post of State Librarian, in accordance with the Cadre and Recruitment Rules and also in the light of the observations made in this order before the deputation appointment of the 2nd respondent expires.