AI Structured Summary
Not yet generated for this judgment
Judgment
Honourable Mr. Justice K. Chandru
Whether a Director of Public Libraries can be appointed without minimum qualification as per the statutory rules? is the question that arises for consideration in this writ petition. The writ petitioner filed the present writ petition for the issuance of writ in the nature of quo warranto to show cause as to how the third respondent is holding the office of the Director of Public Libraries when he is lacking even the minimum qualification prescribed for the said post.
When the writ petition came up on 14.2.2011, on noticing that the petitioner has earlier filed a writ petition in W.P.No.6618 of 2011, this Court directed the said writ petition to be tagged along with the writ petition. Accordingly both writ petitions came to be posted. But it was brought to the notice of this Court that the previous incumbent had completed his term during the pendency of that writ petition and that the third respondent has been appointed in his place vide G.O.Ms.No.181, School Education Department, dated 21.9.2011. Hence that writ petition was dismissed as infructuous on 15.2.2012. Thereafter, when the matter came up on 16.02.2012, it was informed by the learned Advocate General that it is only an adhoc arrangement. Therefore, in the absence of regular office holder, the writ in the nature of quo warranto will not lie. But a perusal of the Government Order in G.O.Ms.No.181, School Education Department, dated 21.9.2011 did not show that there was any adhoc arrangement. On the other hand, the State Government on the basis of an administrative interest had directed several transfers and posting in respect of officers working under school education department. The third respondent being a member of the Teacher Recruitment Board and Director of School Education, was transferred and posted as the Director of Public Libraries, Chennai in the place of one K.Arivoli who was transferred and posted as a member of the Teachers Recruitment Board in the rank of the Director.
Taking notice on behalf of all respondents, the first respondent State has filed a counter affidavit, dated 8.3.2012. Though the third respondent was shown in his individual capacity in the writ petition, he did not file any separate counter affidavit. On the other hand, the Deputy Secretary to the Government, School Education Department who is the deponent to the counter affidavit, stated that he filed the counter affidavit not only for the first respondent, but for other respondents also. It only means, the cause of the third respondent was taken over by the first respondent State. A reply affidavit, dated 20.03.2012 has been filed by the petitioner who is the Secretary of the Tamil Nadu Library Association.
Before dealing with the facts involved in this case, it is necessary to set out the history behind the establishment of the legislation regarding the library as well as the role of the Director of such Public Libraries.
The UNESCO Public Library Manifesto, 1972 stated that, The public library should be established under the clear mandate of law, which is substantiated by the IFLA/UNESCO Public Library Manifesto 1994 as: The public library shall in principle be free of charge. The public library is the responsibility of local and national authorities. It must be supported by specific legislation and financed by national and local government. It has to be an essential component of any long-term strategy for culture, information provision, literacy and education.
5.1. Libraries are recorded under the Article 246 of Indian Constitution, Seventh Schedule List II of State List No. 12 and the Indian Constitution (Seventh Amendment) Act, 1956, Section 27 reads, Libraries, museums and other similar institutions controlled or financed by the State; ancient and historical monuments and records other than those to be of national importance. Provision of public library service is the responsibility of the State Government as the subject matter of libraries is relatable to entry 12 of the State List in the Seventh Schedule to the Constitution of India.
5.2. Tamil Nadu is the first state that enacted Public Libraries Act in independent India. It came into force with effect from 1 April 1950. The objectives of the Act are contained in its Preamble as, An act to provide for the establishment of public libraries in the province of (Madras) Tamil Nadu and the organization of comprehensive rural and urban Library Service therein. It has 19 sections.
5.3. Tamil Nadu was very rich in public libraries. The Connemara Public Library was opened for the public in 1896 and became the State Central Library from 1 April 1950. There has been a tremendous growth and development of public libraries since an enactment of Tamil Nadu Public Libraries Act 1948, being the first State Library Legislation in India. As on March 1998, (Amudhavalli;2001;201) the state has public library service units, as 1 State Central Library, 29 District Central Libraries, 1548 Branch Libraries, 506 Village Libraries, 649 Part-time Libraries, and 8 Mobile Libraries. The Department of Public Libraries has been offering extension services, like _ Mobile Library Service, Home Delivery Service, Library Service for Children, Library Service for Police Personnel, Library Service for state workers and remote settlers in the hills, Hospital Library Service, Rural Library Service, Part-time Library Service, Library Service for Students, Library Service for research scholars and Library Service for competitions for various civil services."
5.4. Section 4 of the Madras Public Libraries Act, 1948 reads as follows:
4.The Government shall appoint a Director of Public Libraries for the State, and he shall, subject to their control-
(a) manage the central library, being a library constituted by the Government as the central library or an existing Government library recognized by them as the central library, together with the branches of such library;
(b) superintend and direct all matters relating to public libraries;
(c) declare, in accordance with the rules made under this Act, what libraries are eligible for aid from the Government and superintend and direct all matters relating to such libraries;
(d) superintend and control the work of all Local Library Authorities under this Act;
(e) submit to the Government every year a report on the working of libraries under this Act in the previous year; and
(f) perform such other duties and exercise such other powers as are imposed or conferred by this Act or the rules made thereunder."
(Emphasis added)
The State Government vide G.O.Ms.No.1034, Education Department, dated 5.7.1972 had constituted a separate Directorate for Public Libraries. The reason for constituting the same is set out in that G.O., which reads as follows:
At present the Director of School Education is also the Director of Public Libraries and Commissioner for Government Examinations. The Director of Public Libraries is responsible for various duties under the Tamil Nadu Public Libraries Act. Unlike other offices there is no regular office subordinate to the Director of Public Libraries exclusively dealing with Local Library Authorities. Further, the work-load involved pertaining to the administration of Local Library Authorities has increased much as a result of three Plan Schemes implemented and the various welfare measures undertaken after Independence. Therefore the question of setting up of separate Directorate of Public Libraries has been under the consideration of the Government for some time past. The Government have now decided to set up a separate Directorate of Public Libraries.
After constituting a separate Directorate, the State Government had framed rules under Article 309 of the Constitution in respect of the posting of the Director of Public Libraries. It was stated that the general and special rules applicable to the post of the Tamil Nadu Educational Service shall apply to the temporary posting of the Director of Public Libraries subject to modification made in the said rules.
Rule 3 deals with the appointment and Rule 4 deals with the qualification and they read as follows:
APPOINTMENTS:
Appointment to the post shall be made :-
i) by promotion from the post of Librarian, Connemara Public Library, Madras; or
ii) by transfer from any other class in the said service; or
iii) recruitment by transfer from any other service.
QUALIFICATIONS:-
No person shall be eligible for appointment to the post by the methods specified i column (1) of the Table below unless he possesses the qualifications specified in the corresponding entries in column (2) thereof:
The Table
Method of recruitment
(1)
Qualifications
(2)
(a)Promotion or Transfer than of
i) Master''s degree in Library Science;
ii) A Master''s degree in a traditional subject in Arts (other languages), Science or Commerce of a University.
iii) A degree in Teaching of a University and
iv) At least 10 years service in a Library after obtaining the degree Master of Library Science.
(b)Recruitment by transfer:
Science of
i) Master''s degree in Library
ii) A Master''s Degree in a traditional subject in Arts, other than language), Science or Commerce of a University.
(iii) A degree in Teaching of a
iv) At least 15 years'' experience in Library after obtaining the degree Master of Library Science.
The rules were made to come into effect from 5.7.1972. Thereafter, by G.O.Ms.No.820, Education, Science and Technology Department, dated 3.5.1982, the employees engaged by the local library authority were provincialised with effect from 1.4.1982. Further, an additional post of Deputy Director of Public Libraries was also created. Under the control of the Public Library Department, it had three distinct units, i.e., Directorate of Public Libraries, Connemara Public Library and Eighteen Local Library Authorities. Hence there were disputes with reference to seniority and integration and consequential promotions before the Administrative Tribunal upto the Supreme Court. It is unnecessary to go into details as they are not relevant for the purpose of this case. Suffice it to state that the Government had created one more post of Deputy Director of Public Library in the rank of a Director.
It is rather unfortunate that having created a separate directorate and having prescribed rules under Article 309, the State Government was observing the rules more in its breach than its observance. It had become a promotional avenue for the persons working in the Directorate of School Education. The persons who were in the rank of Deputy Director of School Education or its equivalent post got themselves posted as Director of Public Libraries just prior to their retirement. After getting the higher post by transfer and getting their higher pay fixed, they will retire from service. They will also get higher terminal benefits in this process.
A list of persons who were drawn from the Directorate of School Education and who adorned the office of the Directorate of Public Libraries for the last three decades as furnished by the respondents is set out hereunder :-
Sl.No.
Director''s Nam
Duration
1.
Mr. V. Thillainayagam, M.A., S.L.I.S., B.T
31.7.72 to 27.2.81
2.
Mr. M.R. Narayanan, B.Sc (Asst. Director) (additional charge)
28.2.81 to 31.5.81
3.
Mr. M. Sambasivam, M.A., B.T.
1.6.81 to 3.6.82
4.
Mr. V. Anandaraj, M.A., B.T.
4.6.82 to 31.7.83
5.
Mr.J.A. Irayan, M.A., B.T. (addl. Charge)
1.8.83 to 15.3.84
6.
Mr. S. Vaiyapuri, B.E., F.I.E.
16.3.84 to 30.9.84
7.
Mr.J.A.Irayan, M.A., B.T.
01.10.84 to 24.10.84
8.
Mr. K. Ansaribeiq, M.A., B.T.
25.10.84 to 31.3.86
9.
Mr.K.Gopalan, M.A., M.Sc, B.T. (addl. Charge)
1.4.86 to 30.5.86
10.
Mr.V.A.Sivagnanam, M.A., B.T.
30.5.86 to 30.3.88
11.
Dr.V.Palanivelu, M.Sc., PhD, B.T.
30.3.88 to 13.8.92
12.
Mr.Vai.Palanisamy, (addl. Charge)
13.8.92 to 11.9.92
13.
Mr.K.Aranganathan, M.A. M.Ed.
11.9.92 to 30.1.95
14.
Mr.R.Kannan, M.A., M.Ed.
30.1.95 to 11.6.1999
15.
Smt.S.Lakshmi, M.A., B.Ed.
11.6.99 to 16.7.2004
16.
Mr.P.Kulasekaran, M.A., B.Ed.
17.7.04 to 31.5.2006
17.
Mr.N.Avudaiyappan (incharge)
1.6.2006 to 22.06.2006
18.
Mr.R.Kannan, M.A., M.Ed.
23.6.2006 to 04.09.2006
19.
Mr.R.Palanisamy, M.Sc., M.Ed., B.L., PhD
4.9.2006 to 28.03.2007
20.
Mr.P.Perumalsamy
29.03.2007 to 31.7.2007
21.
Mr.V.Ramani, M.A., M.Sc., M.Ed.
01.08.2007 to 31.3.2009
22.
Mr.K.Arivoli. (additional charge)
01.04.2009 to 29.05.2009
23.
Mr.K.Arivoli
30.05.2009 to 21.9.2011
24.
Mr.S.Anbalagan (Respondent No. 3)
21.09.2011 till now
In the above list of persons except one or two, others lack even minimum educational qualification prescribed for the said post. Though rules clearly state that in respect of recruitment by transfer, a person must have a master degree in Library Science as well as 15 years of experience in Library after obtaining the degree in Master of Library Science, those rules were breached completely as most of the persons who adorned the office of the Director of Public Library including the third respondent did not have the said basic minimum qualification. Therefore, in the counter affidavit, in paragraphs 8,11,12 and 13, it was submitted as follows:
8.....The only post available for the feeder category for the post of the Director of Public Libraries is the Librarian, Connemara Public Library. The time scale of pay of the Librarian, Connemara Public Library at that time was equivalent to the post of the Assistant Director of Public Libraries. The post of Director of Public Libraries at that time carried the time scale of pay equivalent to the post of Deputy Director of School Education......
11.....the posts of the District Library Officer, Deputy Director and Joint Director in the Directorate of Public Libraries could not be filled up. The Libraries in institutions other than run by the Government such as Universities etc., cannot be appointed in government service by invoking the methods of appointment available as on date. If they have to be considered for appointment, it can be only by direct recruitment for which no provision is available in the existing adhoc rules.
The post of Librarian, Connemara Public Library is vacant from 01/01/2011 and as the post of the Director in the School Education department is equivalent to the post of the Director of Public Libraries in scale of pay, the said post has been filled up from the holder of post in the cadre of the Director of School Education as was done during 1950''s (i.e by the Director of Public Instructions). However, it is felt that the adhoc rules for various posts in the Department of Libraries including Director of Public Libraries, Joint Director of Public Libraries, Assistant Director of Public Libraries, Librarian, Connemara Public Library require suitable modification in terms of present day situation and action is being taken in the matter.
13....it is submitted that the post of Director of Public Libraries has been filled by the Government from the cadre of Director of School Education temporarily on administrative grounds by the method of recruitment by transfer from any other services (i.e. Tamil Nadu School Educational Services) due to non-availability of qualified and eligible candidates in the Department of Public Libraries.(Emphasis added)
In the reply affidavit filed, it was contended that the Government never took care to fill up even the subordinate post including the post of Librarian at Connemara public library and that the subordinate staff are stagnating for over 15 years for want of promotional avenue.
It is rather shocking to note that the Government should take such absurd steps in the matter of filling up the post of the Director of Public Libraries. The adhoc rules were framed in the year 1974 that too with retrospective effect from 5.7.1972. For the last four decades, they did not think of filling up the post in terms of rules or amending rules for providing direct recruitments. It is not as if there is a dearth of candidates with specific qualification in the open market since hundreds of candidates with Post Graduate qualification in Library Science with suitable experience are still available. The Government cannot keep the department as a close shop only to enable the rank promotees to reach the topmost post. Having prescribed the minimum qualification, it is not open to them to defy the service rules in appointing persons by transfer who lack the qualification prescribed under the rules. The present situation was brought up by the Government by itself by not amending the relevant rules providing for direct recruitments or in the alternative not filling up the post of Librarian of the Connemara public library, who may be considered for further promotion. The Supreme Court while dealing with the instrumentality of the State and defining their role in the matter of granting largess either in the form of contract or in the form of job vide its judgment in Ramana Dayaram Shetty Vs. International Airport Authority of India and Others, held as follows :
Now, obviously where a corporation is an instrumentality or agency of Government, it would, in the exercise of its power or discretion, be subject to the same constitutional or public law limitations as Government. The rule inhibiting arbitrary action by Government which we have discussed above must apply equally where such corporation is dealing with the public, whether by way of giving jobs or entering into contracts or otherwise, and it cannot act arbitrarily and enter into relationship with any person it likes at its sweet will, but its action must be in conformity with some principle which meets the test of reason and relevance.
This rule also flows directly from the doctrine of equality embodied in Article 14. It is now well-settled as a result of the decisions of this Court in E.P. Royappa v. State of Tamil Nadu and Maneka Gandhi v. Union of India that Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. It requires that State action must not be arbitrary but must be based on some rational and relevant principle which is non-discriminatory: it must not be guided by any extraneous or irrelevant considerations, because that would be denial of equality. The principle of reasonableness and rationality which is legally as well as philosophically an essential element of equality or non-arbitrariness is projected by Article 14 and it must characterise every State action, whether it be under authority of law or in exercise of executive power without making of law. The State cannot, therefore, act arbitrarily in entering into relationship, contractual or otherwise with a third party, but its action must conform to some standard or norm which is rational and non-discriminatory. This principle was recognised and applied by a Bench of this Court presided over by Ray, C.J., in Erusian Equipment and Chemicals Ltd. v. State of West Bengal where the learned Chief Justice pointed out that the State can carry on executive function by making a law or without making a law. The exercise of such powers and functions in trade by the State is subject to Part III of the Constitution. Article 14 speaks of equality before the law and equal protection of the laws. Equality of opportunity should apply to matters of public contracts. The State has the right to trade. The State has there the duty to observe equality. An ordinary individual can choose not to deal with any person. The Government cannot choose to exclude persons by discrimination. The order of blacklisting has the effect of depriving a person of equality of opportunity in the matter of public contract. A person who is on the approved list is unable to enter into advantageous relations with the Government because of the order of blacklisting. A citizen has a right to claim equal treatment to enter into a contract which may be proper, necessary and essential to his lawful calling. It is true that neither the petitioner nor the respondent has any right to enter into a contract but they are entitled to equal treatment with others who offer tender or quotations for the purchase of the goods.