ORDER Ram Mohan Reddy, J.— Common questions of fact and that of law arise for decision making, hence, with the consent of the learned together, finally heard and disposed of by this common order. 2. The Petitioners, appointed as paramedical staff in Hassan Institute of Medical Sciences (for short 'HIMS') and the Mysore Medical College and Research Institute, for short MMCRI have assailed: (i) Orders of even date 26.8.2010 of the State of Karnataka cancelling the selection and their appointments; (ii) Orders of even date 26.8.2010 of HIMS and MMCRI relieving them from duty. 3. Facts in brief RELATING TO 'HIMS' (W.P.27062-201/2010; 27893-978/2010; 27236-334/2010) are: a) Respondent -'HIMS', a Society registered under the Karnataka Societies Registration Act, 1959 is an autonomous body under the control of the State, established with the object of promoting medical education and governed by (i) Hassan Institute of Medical Sciences Rules and Regulations, 2005 (for short 'Rules'); (ii) Hassan Institute of Medical Sciences Bye-Laws (for short 'Bye-laws'); (iii) Hassan Institute of Medical Sciences (Pay recruitment conditions of service and Miscellaneous Provisions) Rules, 2005 (for short 'C & R Rules'). The State, by order dated 7.9.2006 allocated funds to HIMS and approved the recruitment of teaching and non-teaching staff for the years 2006 through to 2011, pursuant to the concurrence dated 2.8.2006 of the Finance Department. b) HIMS engaged paramedical personnel on contract basis and when notifications dated 18.06.2007 and 13.08.2008 were issued to fill up the sanctioned vacant posts of non-teaching staff, were questioned in W.P. No. 13483/2008 and batch whence a learned Single Judge, recording the submission of the learned Counsel for HIMS that a fresh notification would be issued subject to imprimatur to withdraw the notifications impugned therein, disposed of the petitions permitting the withdrawal, with a direction to continue the Petitioners therein (contract employees) until fresh appointments are made in accordance with law, by-order dated 11.02.2009. c) The rules stipulate the following as members of the Governing Council of HIMS: (i) Minister for Medical Education - Chairman; (ii) Minister-in-charge of the District - Co-chairman; (iii) Principal Secretary / Secretary to Government Finance Department or his nominee not below the rank of Deputy Secretary - Member; (iv) Principal Secretary / Secretary to Government Health & Family Welfare or his nominee not below the rank of Deputy Secretary - Member; (v) Principal Secretary / Secretary to Government Planning Department or his nominee not below the rank of Deputy Secretary - Member; (vi) Secretary, Social Welfare Department or his nominee not below the rank of Deputy Secretary - Member; (vii) Health & Family Welfare (Medical Education) or his nominee not below the rank of Deputy Secretary - Member; (viii) Commissioner for Health and Family Welfare Services or his nominee not below the rank of Additional Director - Member; (ix) Vice-Chancellor, Rajiv Gandhi Institute of Health Sciences - Member; (x) Director of Medical Education - Member; (xi) Chief Engineer (C & B) or his nominee not below the rank of Executive Engineer - Member; (xii) Deputy Commissioner, Hassan - Member; (xiii) The Chief Executive Officer, Zilla Panchayath, Hassan - Member; (xiv) Principal of the College - Member (xv) Medical Superintendent of the Hospital - Member; (xvi) Chief Accounts Officer-Member; (xvii) Financial Advisor - Member; (xviii) Two persons who are specialised in the field of medical education - Member; (xix) Director who is the Principal Secretary - Member. d) The Finance Committee consists of the following: (i) Secretary to Government, Health and Family Welfare Department (Medical Education) - Chairman; (ii) Secretary to Government, Finance Department or his nominee not below the rank of Deputy Secretary - Member; (iii) Secretary, Planning Department or his nominee not below the rank of Deputy Secretary - Member; (iv) Director of Medical Education or his representative not below the rank of Joint Director of Medical Education - Member; (v) Deputy Commissioner, Hassan Member; (vi) CEO, Zilla Panchayath, Hassan - Member; (vii) Director of the Institute - Member; (viii) Chief Accounts Officer - Member; (ix) Principal - Member; (x) Financial Advisor - Member. e) Consequent upon the permission by this Court, the Governing Council resolved to withdraw the two earlier notifications and issue a fresh notification to fill up 307 vacant posts of para-medical staff and accordingly issued notification dated 9.9.2009 which was published in the newspapers as well as its official website. In view of the overwhelming number of applications being 12,300, the Governing Council resolved to call eligible candidates for interview in the ratio of 1: 10 and constituted two selection committees. A list of candidates eligible for interview, based on merit, was prepared and webhosted. Interviews were conducted between 10.05.2010 to 28.05.2010 followed by the preparation of a select list and issue of appointment orders to 291 candidates. The appointees reported to duty on dates between 11.08.2010 to 25.08.2010. The State issued the order impugned on 26.08.2010 followed by the order of HIMS relieving the appointees. 4. Facts in brief relating to 'MMCRI': The 3rd Respondent MMCRI, a society registered under the Karnataka Societies Registration Act, 1959 an autonomous body is established by the State of Karnataka with the object of promoting medical education governed by the Byelaws. The 3rd Respondent engaged paramedical staff, on contract basis, and with a view to discontinue contractual employment and fill up the vacant posts, the Governing council of the 3rd Respondent-MMCRI in its meeting held on 1.5.2010 resolved to permit the Director and Dean to recruit 26 Staff Nurses and 19 Lab Technicians after issuing notification and conducting a walk-in-interview, by following merit and roster. The 3rd Respondent issued an advertisement in the newspapers 'Kannada Prabha' and 'Star of Mysore' on 16.7.2009 to fill up on contract basis, for a period of 11 months, and thereafterwards in the 7th Governing council meeting held on 21.10.2009, resolved to change the terminology from "walk-in-interview" to "interview" following which on 2.11.2009, the 3rd Respondent issued another advertisement to fill up permanent vacancies of 26 Staff Nurses, 19 Lab Technicians, 1(one) CT Scan technician and 1(one)-Radiotherapy Technician, followed by a corrigendum stating that the filling up of posts earlier advertised on contract basis is converted to recruitment on permanent basis, in the newspapers viz., Deccan Herald, Kannada Prabha and Mysore Mitra. It appears that the Director of the 3rd Respondent addressed a letter to the Minister for Medical Education and Chairman of the Governing Council, on 10.2.2010 seeking approval to recruit 61 staff nurses as against 26, since vacancies had arisen due to retirements and promotions, was approved on 17.2.2010. Interviews of candidates called in the ratio of 1:10 were conducted between 22.3.2010 and 25.3.2010 and thereafter on 8.7.2010 a list of selected candidates based on, merit and roster was submitted to the Chairman of Governing council for approval. The Secretary, Medical Education having scrutinised the list, put up remarks and placed the same before the Minister, who, on 3.8.2010 granted approval and directed issue of appointment orders. The list of selected candidates was published in the official website of the 3rd Respondent on 4.8.2010 and appointment orders issued to selected candidates on 5.8.2010. 5. The State Government having noticed that the entire process commencing from the notification dt. 16.7.2009, the corrigendum dt. 2.11.2009 inviting applications for filling up vacancies of paramedical staff, through to the issue of appointment orders, suffered from widespread infirmity of all pervasive nature, more appropriately appointing 35 staff nurses, in excess of the vacancies notified for recruitment, by the order impugned, annulled the selection and appointments, followed by the orders relieving the Petitioners from duty. 6. The State has opposed the petitions by filing separate Statements of objections. 6. The State has opposed the petitions by filing separate Statements of objections. The contention advanced by the State, common to both 'HIMS' and 'MMCRI' are that the Petitioners have no legal right to maintain the petitions; that the selection and appointments are vitiated for the following reasons: a) that one of the local newspaper in which the notification was advertised did not have wide circulation; b) the notification: (i) is very vague without disclosing details of reservation, qualification, pay scales, etc; (ii) does not disclose number of posts reserved; (iii) is illegal and not in conformity with law; (iv) does not disclose the marks to be awarded in the interview or the basis or criteria for awarding marks; c) Selected candidates after inviting them for an interview in the ratio of 1: 10 on the basis of the decision of the selection committee and not the Governing Council since the Karnataka Civil Service (General Recruitment) Rules and Special Rules prescribe 1: 3 as the ratio; d) Constitution of two separate committees for selection is illegal; e) Fixing 25% marks for non-technical posts is excessive and impermissible to accommodate few persons of choice, though the Rules prescribe 15 marks; f) Awarding of high marks in the interview to candidates of the choice of the Selection Committee, inversely proportionate to the marks in the qualifying examination; g) Awarding of grace marks to candidates engaged on contract basis which is discriminatory and violative of Article 14 of the Constitution of India; h) That 200 plus candidates interviewed every day within 400 minutes between 10.00 a.m. and 6.00 p.m. by two separate committees and hence, a farce; i) Marks obtained by candidates in the interview not published in the evening of the said day; j) List of candidates provisionally selected nor finally selected not published; k) 150 candidates selected hail from Hassan alone; l) Working sheets of each of the members of the Selection Committee recording the assigning of marks to each candidate were destroyed; m) The signatures of all the members of the Selection Committee were not found on the merit-cum-roster list; n) Failure to ensure police verification, caste and income verification, original credentials not verified, the appointment orders are malafide and intentional. 7. 7. According to the State, the selection is rife with corruption due to favouring of 'few candidates and that large number of candidates would not figure if the ratio is 1: 3, but for assigning grace marks before calling them for interview'. The State having secured a report, noticed that appointments were in gross violation of the constitutional scheme and hence, required to be annulled, in public interest. In addition, it is stated that in order to get "things" enquired into the Additional Chief Secretary and Development Commissioner was appointed, whose report disclosed gross irregularities in selection process which led to the further order dated 13.09.2010 Annexure-"R7". The policy decision of the State not to create or fill up vacancies as communicated in the circular dated 21.10.2009, both HIMS and MMCRI did not obtain permission to fill up the vacancies. In addition, it is contended that in terms of Rule 11 of the 'Rules', the State exercised its power to issue directions in matters of both academic and administrative and hence, the State alone has a say in the said matter and not individuals. It is asserted that the Governing Council is appointed by the State and that both HIMS and MMCRI are managed by the appointees of the State and therefore, the Governing Council is required to act in accordance with the directions of the State. According to the 1st Respondent, HIMS and MMCRI are 'extended arms/agencies of the State'. 8. It is further stated that notices issued to the Chief Accounts Officer and the Director of HIMS and MMCRI are responded to by replies. It is next contended that appointments being violative of the constitutional scheme and the (C & R) Rules, there is no necessity to issue a show cause notice to each of the appointees before cancelling the selection and appointment and that the order impugned is in public interest. Lastly it is contended that the illegalities being 'admitted and in view of undisputed facts, compliance with the principles of natural justice, is an empty forrnality: 9. Lastly it is contended that the illegalities being 'admitted and in view of undisputed facts, compliance with the principles of natural justice, is an empty forrnality: 9. In addition as regards appointees of MMCRI, it is contended that the 3rd Respondent, though, issued an advertisement in the newspapers inviting applications for filling up vacancies of 26 Staff Nurses, 19 Lab Technicians, 1(one) CT Scan Technician and 1(one) Radiotherapy Technician, nevertheless appointed 61 Staff Nurses (26 + 35), in excess of the posts advertised, without providing reservation and roster. Only after a lapse of few months i.e. on 9.8.2010 a final list of candidates was published without publishing the provisional list and hence illegal. In the totality of circumstances, according to the State there being gross violation of constitutional scheme in the matter of recruitment, the order impugned was passed in public interest and thereafter the Addl. Chief Secretary and Development Commissioner having held an enquiry submitted a report pointing to violations of the Rules in the matter of appointments. 10. The counsel for HIMS filed a list of dates indicating that the Governing Council, in its meeting held on 4.8.2009 resolved to recruit non-teaching staff by fixing 75% marks as against the marks obtained by the candidate in the qualifying examination and 25% marks for the interview; on 5.9.2009 in the first meeting of the Selection Committee, it was resolved to give weightage to temporary contract employees who had served HIMS, at the rate of 5 marks for every completed year of service, as approved by the Governing Council; on 9.9.2009 notification for recruitment to fill up 307 vacant posts was issued; A second meeting of the Selection Committee was held on 13.01.2010 whence it was decided to call the candidates for interviews in the ratio of 1: 10 so as to extend opportunity to large number of candidates, as approved by the Governing Council; on 13.04.2010 the Finance Committee of HIMS headed by the Principal Secretary (Medical Education), approved the budget for recruitment to fill up 307 posts; Interviews were held between 10.05.2010 to 28.05.2010 and approved by the Governing Council; list was announced and appointment orders issued on 9.8.2010 to fill up 291 vacant posts from out of whom 281 reported between 11.08.2010 to 25.08.2010; the select list and the appointments were cancelled by the Government order dated 26.08.2010. 11. 11. The learned Counsel for MMCRI filed a list of dates indicating that Governing council in the 6th meeting held on 11.5.2009 permitted the Director to recruit 26 staff nurses and 19 Lab Technicians by issuing a notification inviting eligible candidates for a walk-in-interview, following merit and roster system, to fill up the vacant posts. On 16.7.2009 it is stated, an advertisement was issued in Kannada Prabha and State of Mysore News papers for filling up of vacant posts on contract basis for 11 months. The Governing Council in its 7th meeting held on 21.10.2009 having changed the terminology of 'walk-in-interview' to 'interview', the MMCRI issued an advertisement on 2.11.2009 by way of a corrigendum to fill up 26 posts of staff nurses, 19 Lab technicians, 1 C.T. Scan Technician and 1 Radiotherapy technician, by converting from contract basis to permanent basis, in Kannada Prabha, Deccan Herald and Mysore Mitra newspapers. Due to retirement and promotions, the vacancies from 26 posts of staff nurses rose to 61 and hence the Minister for Medical Education approved filling up of the said posts on 17.2.2010, on the letter dated 10.2.2010 of the Director. Candidates in the ratio of 1:10, based on merit and roster was prepared and interviews held between 22.3.2010 to 25.3.2010 and a select list prepared on 8.7.2010, forwarded to the Secretary Medical Health, Department of the State, on whose note the Minister approved the list on 3.8.2010 with directions to issue the appointment orders. The said list was published in the web site of MMCRI and appointment orders issued on 5.8.2010. 12. The Minister for Medical Education being Chairman of HIMS and MMCRI filed an affidavit dated 8.9.2010 interalia stating that the Governing Council of both HIMS and MMCRI, registered societies, having regard to the Government orders dated 7.9.2006 and 12.09.2006, approving the number of posts for non-teaching staff together with Budget allocation, resolved in the meeting of HIMS held on 4.8.2009 to recruit the staff by allocating 75% marks for qualifying examination and 25% marks for interview followed by a resolution dated 5.9.2009 of the Selection Committee to issue the notification for recruitment. The publication of the notification was on 9.9.2009 in leading newspapers namely "Deccan Herald", "Vijaya Karnataka" and "Janatha Madyama" as also in the official websites of the societies providing roster and reservations. The publication of the notification was on 9.9.2009 in leading newspapers namely "Deccan Herald", "Vijaya Karnataka" and "Janatha Madyama" as also in the official websites of the societies providing roster and reservations. In terms of the bye-laws, the Director being the Chairman of the Selection Committee for recruitment of candidates in Group "C" and "D", the applicants being 12,395, the Selection Committee held a meeting on 13.01.2010 and resolved to call candidates for interview in the ratio of 1: 10 and accordingly published a list of candidates to be called for interview, in the official website as well as on the notice board. On the selection of the candidates, the final selection list in the order of merit and applying the roster was prepared on 9.8.2010 and published in the official website as well as on the notice board. 13. In the additional affidavit dated 13.09.2010, the Chairman states that the final select list was not placed before the Governing Council since the Director was the appointing authority. However, the Chairman perused the list. Grace marks, it is stated, was assigned to candidates who had work experience in HIMS at the rate of 5 marks for every completed year of service, not exceeding 15 marks which was included in the 75% of the marks for the qualifying examination. The ratio of 1: 10 for the purpose of interview was the decision of the selection committee since similar such ratio was adopted in selections by various Departments of the State, so as to assess candidates both on their merit as well as experience, being the minimum requirement in a Health Care Institute. 14. Heard the learned Senior counsels for the Petitioners and the learned Additional Advocate General for the State as well as the learned Senior counsel for other Respondents. Perused the pleadings and examined the orders impugned. 15. Learned Senior counsel for the Petitioners of HIMS while reiterating the averments in the petitions, contend that the orders impugned of the State Government passed in undue haste is not preceded by a full-fledged enquiry in accordance with law after following the principles of natural justice and hence, unsustainable. Perused the pleadings and examined the orders impugned. 15. Learned Senior counsel for the Petitioners of HIMS while reiterating the averments in the petitions, contend that the orders impugned of the State Government passed in undue haste is not preceded by a full-fledged enquiry in accordance with law after following the principles of natural justice and hence, unsustainable. Learned Senior counsel submits that in order to check arbitrary exercise of power by the State, the principle implies a duty to act fairly, with fair play in action, since its aim is to prevent miscarriage of justice and operate in the areas not covered by law validly made since the rule of audi alteram partem does not supplant the law but supplements it. Non-arbitrariness being the essential facet of Article 14 of the Constitution of India, governing the state action, audi alteram partem is a facet of natural justice embodied in Article 14 and therefore, it is contended that the order of the State anulling the selection and appointment, tantamounting to termination of service of the Petitioners in exercise of absolute power of the State is antithesis to fair, just and reasonable treatment. In addition, it is contended that the appointments having conferred a vested right in the Petitioners to hold the posts could not be taken away without affording a reasonable opportunity of hearing and hence, the orders impugned are void. The assertion of the State that a fair opportunity of hearing would be extended to the Petitioners, post termination, it is contended, is no justification not to extend a predecisional hearing and the further assertion that 'useless formality theory' applies, in the circumstances, is contended unacceptable since the alleged facts are neither admitted by the Petitioners nor the other Respondents. It is next contended that Rule 11 of the 'Rules empowering the State to issue special and general directions ought to be construed as issuing policy guidelines and not interference in day to day administration of HIMS and MMCRI. The last of the contentions is that the State cannot be permitted to support its orders dated 26.08.2010 impugned, on the basis of a subsequent enquiry and report dated 13.09.2010 Annexure-"R7" of the Additional Chief Secretary. 16. The last of the contentions is that the State cannot be permitted to support its orders dated 26.08.2010 impugned, on the basis of a subsequent enquiry and report dated 13.09.2010 Annexure-"R7" of the Additional Chief Secretary. 16. Learned Sr.counsel for the Petitioners of MMCRI, while adopting the contentions advanced supra, in addition, contends that the process of selection culminating in the appointments were neither illegal nor in violation of the constitutional scheme. According to the learned Counsel, the Selection Committee constituted by the 3rd Respondent headed by its Director issued the advertisement to fill up 47 posts and later on vacancies having arisen due to retirement and promotions, after issue of the corrigendum dt.2.11.2009, sought for and secured approval of the Minister for filling up 61 posts of Staff Nurses. In order to provide an opportunity to the large number of applicants, otherwise meritorious, the ratio of 1:10 was fixed and a list of candidates based on merit and roster was prepared and called for interview, as had been done in other departments of the State, by assigning marks in the interview to each of the candidates, followed by the final list based on merit and applying the roster published in the official website is the contention of the learned Senior counsel. 17. Reliance is placed upon the following opinions of the Apex Court in 1) Commissioner of Police, Bombay Vs. Gordhandas Bhanji, AIR 1952 SC 16 2) Basudeo Tiwary Vs. Sido Kanhu University and Others, (1998) 7 AD SC 189 3) Sahara India (Firm) , Lucknow Vs. Commissioner of Income Tax, Central-I and Another, (2008) 300 ITR 403 SC 4) Shridhar S/o Ram Dular Vs. Nagar Palika, Jaunpur and Others, AIR 1990 SC 307 5) Uma Nath Pandey and Others Vs. State of U.P. and Another, AIR 2009 SC 2375 AT PARA 30 6) K.I. Shephard and Others Vs. Union of India (UOI) and Others, AIR 1988 SC 686 (PARAS 15 & 16) 7) Canara Bank and Others Vs. Shri Debasis Das and Others, AIR 2003 SC 2041 AT PARA 14 Onwards. 18. In reply, learned Addl. State of U.P. and Another, AIR 2009 SC 2375 AT PARA 30 6) K.I. Shephard and Others Vs. Union of India (UOI) and Others, AIR 1988 SC 686 (PARAS 15 & 16) 7) Canara Bank and Others Vs. Shri Debasis Das and Others, AIR 2003 SC 2041 AT PARA 14 Onwards. 18. In reply, learned Addl. Advocate General while reiterating the contentions advanced in the statement of objections, contends thus: a) The policy of the State not to recruit personnel 'until relaxed' as set out in the circular dated 21.10.2009 required HIMS and MMCRI to secure the consent of the State to fill up the vacancies of non-technical posts; b) An irrational decision of the Cabinet Minister also the Chairman of HIMS and MMCRI, despite being party to the State policy, is not binding on the State, although HIMS and MMCRI provide Medical Services to public, being essential service, and is bound by the Medical Council of India's requirement of minimum staff. c) Although State was arraigned as party -Respondent No. 1 in W.P. 13483/2008 the order dated 11.2.2009 permitting HIMS to withdraw the earlier two recruitment notifications and to issue fresh notification, is not binding on the state. d) that the entire process commencing from the issue of the recruitment notification dated 9.9.2009 of HIMS and the notifications of MMCRI inviting applications to fill up vacancies of paramedical staff, up to the issue of appointment orders, suffers from widespread infirmities of all pervasive nature, as set out in the statement of objections; e) The exercise of power by the State under Rule 11 of the Rules to issue directions to HIMS and MMCRI, in view of the illegalities and infirmities vitiating the selection process was necessitated in public interest and to ensure compliance with the constitutional scheme, hence, there is no necessity for a pre-decisional hearing of the Petitioners, as even otherwise, no useful purpose will be served by doing so. f) that in terms of the order dated 13.09.2010 Annexure-"R7" since fresh notification for recruitment in accordance with the Karnataka Civil Services (Cadre, Recruitment and Conduct) Rules, would be issued and selection process concluded within 60 days; candidates who had applied pursuant to the notification dated 9.9.2009 need not pay any additional fee on the fresh application; candidates selected earlier would be extended the benefit of Travelling Allowance and if the said candidates are successful in the fresh selection, on appointment, would be paid two months minimum wage in the form of monetary benefits, therefore, no prejudice would be caused to the Petitioners by not extending an opportunity of hearing; g) In support of the following propositions: (i) HIMS and MMCRI are Societies registered under the Karnataka Societies Registration Act. 1959, Agencies of the State, being 'authority', are 'State' under Article 12 of the Constitution of India; (ii) Allotting 25 marks for viva voce holding superficial interviews lasting for two or three minutes on an average for each candidate; (iii) Allotting grace marks in viva voce in inverse proportion to marks in the qualifying examination; Reliance is placed upon the following opinions of the Apex Court: (i) Ajay Hasia and Others Vs. Khalid Mujib Sehravardi and Others, AIR 1981 SC 487 (ii) B.S. Minhas Vs. Indian Statistical Institute and Others, AIR 1984 SC 363 (iii) Pradeep Kumar Biswas and Others Vs. Indian Institute of Chemical Biology and Others, (2002) 50 BLJR 1197 (iv) Virendra Kumar Srivastava Vs. U.P. Rajya Karmachari Kalyan Nigam and Another, AIR 2005 SC 411 h) In support of the propositions that since unfair means is adopted in the entire selection process, opportunity of representation by the selectees before cancellation, is unnecessary, reliance is placed on the following opinions of the Apex Court: (i) The Bihar School Examination Board Vs. Subhas Chandra Sinha and Others, AIR 1970 SC 1269 ; (ii) Union Territory of Chandigarh Vs. Dilbagh Singh and others, AIR 1993 SC 796 ; (iii) Ramlal and Others Vs. State of Haryana and Others, (1995) 1 SCC 206 ; (iv) M.C. Mehta Vs. Union of India (UOI) and Others In Re: Inder Mohan Bensiwal In Re: Bharat Petroleum Corporation Ltd., AIR 1999 SC 2583 ; (v) Inder Parkash Gupta Vs. State of Jammu and Kashmir and Others, 2004 (5) SCALE 90 ; (vi) Mohd. Sartaj and Another Vs. State of Haryana and Others, (1995) 1 SCC 206 ; (iv) M.C. Mehta Vs. Union of India (UOI) and Others In Re: Inder Mohan Bensiwal In Re: Bharat Petroleum Corporation Ltd., AIR 1999 SC 2583 ; (v) Inder Parkash Gupta Vs. State of Jammu and Kashmir and Others, 2004 (5) SCALE 90 ; (vi) Mohd. Sartaj and Another Vs. State of U.P. and Others, AIR 2006 SC 3492 ; (vii) Ashok Kumar Sonkar Vs. Union of India (UOI) and Others, JT (2007) 6 SC 127 (viii) Nagendra Chandra etc. etc. v. State of Jharkhand and Ors. AIR 2007 SCW 7666 . (i) For the proposition that the Court, in the fact situation exercising a writ jurisdiction, to prevent injustice, ought to decline from interference, reliance is placed upon a decision of the Division Bench of this Court in State of Karnataka Vs. G. Lakshman, ILR (1987) KAR 2223. 19. As regards recruitment in MMRCI learned Addl. Advocate General for the State while reiterating the averments supra, in addition, maintains that the recruitment process not being in terms of the Constitutional Scheme, is vitiated. It is further contended that 47 vacancies when advertised, the recruitment of candidates in excess of the notified vacancy is a denial and deprivation of constitutional right under Article 14 r/w Article 16(1) of the Constitution of India, by placing reliance upon the decision of the Apex Court in State of Orissa and Anr. v. Rajkishore Nanda and Ors. (2010) 6 SCC 777 . 20. Having heard the learned Counsel for the parties and perused the pleadings and examined the orders impugned dated 26.08.2010, the following points arise for decision making: (I) Whether, in the fact circumstance, the HIMS and MMCRI are instrumentalities and Agencies of the State of Karnataka and 'authority' hence 'State' under Article 12 of the Constitution of India? (II) Whether the orders dated 26.08.2010 of the State of Karnataka annulling the selection and appointment of paramedical staff and the direction to relieve the appointees followed by the order of the HIMS and MMCRI relieving the appointees, suffer from the vice of violation of principles of natural justice? (III) Whether the selection and appointment of 35 Staff nurses, by MMCRI is legal and valid? (IV) Whether the State, in exercise of power under Rule 11 of the 'Rules' is entitled to issue directions to HIMS and MMCRI, to annul the recruitment process? (III) Whether the selection and appointment of 35 Staff nurses, by MMCRI is legal and valid? (IV) Whether the State, in exercise of power under Rule 11 of the 'Rules' is entitled to issue directions to HIMS and MMCRI, to annul the recruitment process? RE POINT I: The answer to the point need not detain the Court for long. HIMS and MMCRI were earlier the Medical Colleges under the Medical Department of the State. The Cabinet of the State having taken a decision to constitute the two colleges into autonomous bodies, permitted their registration, under the Karnataka Societies Registration Act, 1959, by two ministers and Secretaries of the State, making applications in the required forms. The 'byelaws' and 'Rules' as well as the 'C & R Rules', being identical to both HIMS and MMCRI, disclose the constitution of their Governing Council consisting of the Minister for Medical Education as the Chairman and other officers of the State, so also -members of the Societies duly appointed by the State to hold office for a period of three years. The finances for the two societies are provided by the State. The 'Rules' state that they shall come into force from such date as the State Government by notification issues an order. The Bye-law 9(15) states that the amendment to the Service Rules etc. in the absence of the State Government's representatives, shall not be given effect to without the approval of the State Government. Bye-law 20, provides for applicability of Karnataka Civil Services Rules for the purpose of Service conditions until Rules are framed. No immovable property belonging to the Societies can be disposed off without the approval of the State. 21. The Petitioners admit that the State approved the creation of the posts, the staffing pattern, so as to fall in line with the requirements of the Medical Council of India for Medical Colleges and also approved the allocation of finances from the State Budget, for the running of the two Societies, which have no income of their own to sustain all its expenses, more appropriately to meet the salaries, wages, etc. 22. 22. Having regard to the indisputable fact that the two Societies were under the department of the State before being constituted as Societies and the provisions of the 'Bye-law', 'Rules' and 'C & R Rules', coupled with the actions of the State, indicative of State protection to HIMS & MMCRI, whose functions are to provide Medical Services to the public, being governmental functions are relevant facts to classify them as instrumentality or agencies of the State. Thus the public nature of the function impregnated with Governmental Character and deep and pervasive control of the State tantamounts to 'tied or entwined with Government', as observed by the Apex Court in Ramana Dayaram Shetty Vs. International Airport Authority of India and Others, AIR 1979 SC 1628 , renders the HIMS & MMCRI as instrumentalities and agencies of the State Government. 23. Additionally applying the observations of the Apex Court in Ajay Hasia's case supra, to the facts of this case, tend to lean towards accepting the contention of the Learned Additional Advocate General that HIMS and MMCRI, are instrumentalities and agencies of the State Government. Point I is answered in the Affirmative. RE POINTS II & III: An examination of the orders impugned what can be deciphered is that the State, on a cursory enquiry, mainly held that the assigning of 75% marks for the qualifying examination and 25% for the interview and calling candidates for interview in the ratio of 1: 10 as against 1: 3 for recruitment to the vacant posts of paramedical staff in HIMS and MMCRI, coupled with the circular dated 21.10.2009 indicating the policy of the State not to recruit personnel "until relaxed", amongst other irregularities, cancelled the appointments and issued directions to relieve from duties, the appointees, forthwith. However, the Government order dated 13.09.2010 Annexure-"R7" to the Statement of objections discloses that the State, by order dated 31.08.2010 appointed the Additional Chief Secretary to enquiry into the allegations of legal infirmities in the selection process and to submit a report whence the Officer noticed infirmities in the recruitment process, submitted a report, which when accepted by the State, declined to recall the order dated 26.08.2010 24. The State seeks to make an attempt by making reference to the contents of Annexure-"R7" that the subsequent enquiry into the alleged fiasco in recruitment, points out to several gross infirmities leading to the cancellation of the selections and appointments by the State. It is not the case of the State that prior to 31.08.2010, a full-fledged enquiry was held into the allegations and a report obtained calling forth the orders dated 26.08.2010 impugned. The state, instead of justifying its action only on the basis of the orders impugned, seeks support from the subsequent order dated 13.09.2010 Annexure-"R7". 25. In that view of the matter, there is considerable force in the submission of the learned Counsel for the Petitioners that the observations of the Apex Court in Commissioner of Police, Bombay Vs. Gordhandas Bhanji, AIR 1952 SC 16 is apposite: 9. x x x We are clear that public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself." 10. x x x Public authorities cannot play fast and loose with the powers vested in them, and persons to whose detriment orders are made are entitled to know with exactness and precision what they are expected to do or forbear from doing and exactly what authority is making the order. 26. Having regard to the contents of the orders impugned, it is apparent that the State, without holding a full fledged enquiry and without pointing out to the specifics regarding violation of the constitutional scheme, concluded that the entire process of recruitment commencing from the issue of notification, was vitiated. It is no doubt true that the subsequent enquiry by the Additional Chief Secretary led to the filing of a report recording findings of irregularities in the process of recruitment, but that cannot be construed as material on record at the time when the orders dated 26.08.2010 were passed by the State. It is no doubt true that the subsequent enquiry by the Additional Chief Secretary led to the filing of a report recording findings of irregularities in the process of recruitment, but that cannot be construed as material on record at the time when the orders dated 26.08.2010 were passed by the State. The State therefore, cannot be permitted to make use of subsequent material placed by the Additional Chief Secretary in support of annulling the entire recruitment. 27. There can be no dispute over the proposition advanced by the learned Counsel for the Petitioners that in order to check arbitrary exercise of power by the State, the principle of audi alteram partem implies a duty to act fairly with fair play in action since its aim is to prevent miscarriage of justice and operate in the areas not covered by law validly made and that the said rule does not supplant the law but supplements it. It is yet again indisputable that non-arbitrariness is an essential facet of Article 14 of the Constitution of India, governing state action, and audi alteram partem rule is the facet of natural justice embodied in Article 14 as observed by the Apex Court in Delhi Transport Corporation Vs. D.T.C. Mazdoor Congress and Others, AIR 1991 SC 101 . The Constitution bench having considered all earlier precedents on Articles 14 and 21 of the Constitution of India, summarised the position thus: 230. There is need to minimise the scope of the arbitrary use of power in all walks of life. It is inadvisable to depend on the good sense of the individuals, however high-placed they may be. It is all the more improper and undesirable to expose the precious rights like the rights of life, liberty and property to the vagaries of the individual whims and fancies. It is trite to say that individuals are not and do not become wise because they occupy high seats of power, and good sense, circumspection and fairness does not go with the posts, however high they may be. There is only a complacent presumption that those who occupy high posts have a high sense of responsibility. The presumption is neither legal nor rational. History does not support it and reality does not warrant it. There is only a complacent presumption that those who occupy high posts have a high sense of responsibility. The presumption is neither legal nor rational. History does not support it and reality does not warrant it. In particular, in a society pledged to uphold the rule of law, it would be both unwise and impolitic to leave any aspect of its life to be governed by discretion when it can conveniently and easily be covered by the rule of law. 231. The employment under the public undertakings is a public employment and a public property. It is not only the undertakings but also the society which has a stake in their proper and efficient working. Both discipline and devotion are necessary for efficiency. To ensure both, the service conditions of those who work for them must be encouraging, certain and secured, and not vague and whimsical. With capricious service conditions, both discipline and devotion are endangered, and efficiency is impaired. 232. The right to life includes right to livelihood. The right to livelihood therefore cannot hang on to the fancies of individuals in authority. The employment is not a bounty from them nor can its survival be at their mercy. Income is the foundation of many fundamental rights and when work is the sole source of income, the right to work becomes as much fundamental. Fundamental rights can ill-afford to be consigned to the limbo of undefined premises and uncertain applications. That will be a mockery of them. 233. Both the society and the individual employees, therefore, have an anxious interest in service conditions being well defined and explicit to the extent possible. The arbitrary rules, such as the one under discussion, which are also sometimes described as Henry VIII Rules, can have no place in any service conditions. 234. These are the conclusions which flow from Sukhdev Singh, Oil and Natural Gas Commission, Life Insurance Corporation, Industrial Finance Corporation Employees Associations Vs. Bhagat Ram, Association of Clause II. Officers, Shyam Lal, Industrial Finance Corporation, AIR 1975 SC 1331 ), Mrs. Maneka Gandhi Vs. Union of India (UOI) and Another, AIR 1978 SC 597 ) The Manager, Government Branch Press and Another Vs. D.B. Belliappa, AIR 1979 SC 429 ) Managing Director, Uttar Pradesh Warehousing Corporation and Another Vs. Vijay Narayan Vajpayee, AIR 1980 SC 840 ), A.L. Kalra Vs. Maneka Gandhi Vs. Union of India (UOI) and Another, AIR 1978 SC 597 ) The Manager, Government Branch Press and Another Vs. D.B. Belliappa, AIR 1979 SC 429 ) Managing Director, Uttar Pradesh Warehousing Corporation and Another Vs. Vijay Narayan Vajpayee, AIR 1980 SC 840 ), A.L. Kalra Vs. Project and Equipment Corporation of India Ltd., AIR 1984 SC 1361 ). Workmen of Hindustan Steel Ltd. and Another Vs. Hindustan Steel Ltd. and Others, AIR 1985 SC 251 ) West Bengal State Electricity Board and Others Vs. Desh Bandhu Ghosh and Others, AIR 1985 SC 722 ), Olga Tellis and Others Vs. Bombay Municipal Corporation and Others, AIR 1986 SC 180 ), Union of India and Another Vs. Tulsiram Patel and Others, AIR 1985 SC 1416 ), Central Inland Water Transport Corporation Limited and Another Vs. Brojo Nath Ganguly and Another, AIR 1986 SC 1571 , O.P. Bhandari Vs. Indian Tourism Development Corpn. Ltd. and Others, AIR 1987 SC 111 ,N.C. Dalwadi v. State of Gujarat (1987) 3 SCC 611 ), M.K. Agarwal v. Gurgaon Gramin Bank (1987) SUPP SCC 643) and Daily Rated Casual Labour Employed under P and T Department through Bhartiya Dak Tar Mazdoor Manch Vs. Union of India (UOI) and Others, AIR 1987 SC 2342 . 28. In BASUDEO TIWARY the termination of an employee on the ground that the appointment was made by an incompetent authority and hence invalid, without following the requirements of rules of natural justice, though Section 35(3) of the BIHAR Universities Act, empowered termination at any time without notice, the Apex Court held the termination without notice, as violative of the rule of audi alteram partem, following the decision in DELHI TRANSPORT CORPORATION, their lordships observed thus: "9. The law is settled that non-arbitrariness is an essential facet of Article 14 pervading the entire realm of State action governed by Article 14. It has come to be established, as a further corollary, that the audi alteram partemfacet of natural justice is also the requirement of Article 14, for, natural justice is the antithesis of arbitrariness. In the sphere of public employment, it is well settled that any action taken by the employer against an employee must be fair, just and reasonable which are components of fair treatment. The conferment of absolute power to terminate the services of an employee is antithesis to fair, just and reasonable treatment. In the sphere of public employment, it is well settled that any action taken by the employer against an employee must be fair, just and reasonable which are components of fair treatment. The conferment of absolute power to terminate the services of an employee is antithesis to fair, just and reasonable treatment. This aspect was exhaustively considered by a Constitution Bench of this Court in Delhi Transport Corporation Vs. D.T.C. Mazdoor Congress and Others, AIR 1991 SC 101 ." 29. In SAHARA INDIA (FIRM) LUCKNOW, a three judge bench of the Apex Court observed thus: 15. Rules of "natural justice" are not embodied rules. The phrase "natural justice" Is also not capable of a precise definition. The underlying principle of natural justice, evolved under the common law, is to check arbitrary exercise of power by the State or its functionaries. Therefore, the principle implies a duty to act fairly i.e. fair play in action. As observed by this Court in A.K. Kraipak and Others Vs. Union of India (UOI) and Others, AIR 1970 SC 150 ) the aim of rules of natural justice Is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. They do not supplant the law but supplement it. (Also see Income Tax Officer and Others Vs. Madnani Engineering Works Ltd., Calcutta, AIR 1979 SC 1450 )) 16. In Swadeshi Cotton Mills Vs. Union of India (UOI), AIR 1981 SC 818 R.S. Sarkaria, J., speaking for the majority in a three-Judge Bench, lucidly explained the meaning and scope of the concept of "natural justice". Referring to several decisions, His Lordship observed thus: (SCC p. 666) Rules of natural justice are not embodied rules. Being means to an end and not an end in themselves, it is not possible to make an exhaustive catalogue of such rules. But there are two fundamental maxims of natural justice viz. (i) audi alteram partemand (ii) nemo judex in re sua. The audi alteram partem rule has many facets, two of them being (a) notice of the case to be met; and (b) opportunity to explain. This rule cannot be sacrificed at the altar of administrative convenience or celerity. But there are two fundamental maxims of natural justice viz. (i) audi alteram partemand (ii) nemo judex in re sua. The audi alteram partem rule has many facets, two of them being (a) notice of the case to be met; and (b) opportunity to explain. This rule cannot be sacrificed at the altar of administrative convenience or celerity. The general principle--as distinguished from an absolute rule of uniform application--seems to be that where a statute does not, in terms, exclude this rule of prior hearing but contemplates a post-decisional hearing amounting to a full review of the original order on merits, then such a statute would be construed as excluding the audi alteram partem rule at the pre-decisional stage. Conversely if the statute conferring the power is silent with regard to the giving of a pre-decisional hearing to the person affected and the administrative decision taken by the authority involves civil consequences of a grave nature, and no full review or appeal on merits against that decision is provided, courts will be extremely reluctant to construe such a statute as excluding the duty of affording even a minimal hearing, shorn of all its formal trappings and dilatory features at the pre-decisional stage, unless, viewed pragmatically, it would paralyse the administrative process or frustrate the need for utmost promptitude. In short, this rule of fair play must not be jettisoned save in very exceptional circumstances where compulsive necessity so demands. The court must make every effort to salvage this cardinal rule to the maximum extent possible, with situational modifications. But, the core of it must, however, remain, namely, that the person affected must have reasonable opportunity of being heard and the hearing must be a genuine hearing and not an empty public relations exercise." 17. Initially, it was the general view that the rules of natural justice would apply only to judicial or quasi-judicial proceedings and not to an administrative action. However, in State of Orissa Vs. Dr. (Miss) Binapani Dei and Others, AIR 1967 SC 1269 the distinction between quasi-judicial and administrative decisions was perceptively mitigated and it was held that even an administrative order or decision in matters involving civil consequences, has to be made consistent with the rules of natural justice. However, in State of Orissa Vs. Dr. (Miss) Binapani Dei and Others, AIR 1967 SC 1269 the distinction between quasi-judicial and administrative decisions was perceptively mitigated and it was held that even an administrative order or decision in matters involving civil consequences, has to be made consistent with the rules of natural justice. Since then the concept of natural justice has made great strides and is invariably read into administrative actions involving civil consequences, unless the statute, conferring power, excludes its application by express language. 18. Recently, in Canara Bank Vs. V.K. Awasthy, AIR 2005 SC 2090 ) the concept, scope, history of development and significance of principles of natural justice have been discussed in extenso, with reference to earlier cases on the subject. Inter alia, observing that the principles of natural justice are those rules which have been laid down by the courts as being the minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial, quasi-judicial and administrative authority while making an order affecting those rights, the Court said: (SCC pp. 331-32, para 14) 14. Concept of natural Justice has undergone a great deal of change in recent years. Rules of natural justice are not rules embodied always expressly in a statute or in rules framed thereunder. They may be implied from the nature of the duty to be performed under a statute. What particular rule of natural justice should be implied and what its context should be in a given case must depend to a great extent on the fact and circumstances of that case, the framework of the statute under which the enquiry is held. The old distinction between a judicial act and an administrative act has withered away. Even an administrative order which involves civil consequences must be consistent with the rules of natural justice. The expression 'civil consequences' encompasses infraction of not merely property or personal rights but of civil liberties, material deprivations and non-pecuniary damages. In its wide umbrella comes everything that affects a citizen in his civil life. 19. Even an administrative order which involves civil consequences must be consistent with the rules of natural justice. The expression 'civil consequences' encompasses infraction of not merely property or personal rights but of civil liberties, material deprivations and non-pecuniary damages. In its wide umbrella comes everything that affects a citizen in his civil life. 19. Thus, it is trite that unless a statutory provision either specifically or by necessary implication excludes the application of principles of natural justice, because in that event the Court would not ignore the legislative mandate, the requirement of giving reasonable opportunity of being heard before an order is made, is generally read into the provisions of a statute, particularly when the order has adverse civil consequences for the party affected. The principle will hold good irrespective of whether the power conferred on a statutory body or tribunal is administrative or quasi-judicial. 20. We may, however, hasten to add that no general rule of universal application can be laid down as to the applicability of the principle audi alteram partem, in addition to the language of the provision. Undoubtedly, there can be exceptions to the said doctrine. Therefore, we refrain from giving an exhaustive catalogue of the cases where the said principle should be applied. The question whether the principle has to be applied or not is to be considered bearing in mind the express language and the basic scheme of the provision conferring the power; the nature of the power conferred and the purpose for which the power is conferred and the final effect of the exercise of that power, it is only upon a consideration of all these matters that the question of application of the said principle can be properly determined. (See Union of India (UOI) Vs. Col. J.N. Sinha and Another, AIR 1971 SC 40 30. In Shridhar S/O. Ram Dular, the Apex Court held, setting aside the appointment without giving any notice or opportunity is violative of the elementary principles of natural justice, that no person should be condemned without hearing and that the order of appointment confers a vested right in the appointee to hold the post and that right cannot be taken away without affording opportunity of hearing and further that an order passed in violation of principles of natural justice is rendered void. 31. 31. So also, in Umanath Pandey And Others, the Apex Court observed that adherence to principles of natural justice as recognised by all civilised States is of supreme importance when a quasi-judicial body embarks on determining disputes between the parties, or any administrative action involving civil consequences is in issue and therefore, the first and foremost principle is what is commonly known as "audi alteram partem rule", that no one should be condemned unheard. Notice being the first limb of this principle, must be precise and unambiguous and should apprise the party determinatively of the case he has to meet, extending adequate time so as to enable him to make his representation. It is further observed that principles of natural justice are those rules which have been laid down by the courts as being the minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial, quasi-judicial and administrative authority while making an order affecting those rights and that the rules are intended to prevent such authority from doing injustice. 32. In other words, the Apex Court approved the oft quoted observation, "Affected must be appraised is the constitutional creed flowing from the postulates of Article 14." 33. In K.I. Shephard And Others, the Apex Court observed thus: Fair play is a part of the public policy and is a guarantee for justice to citizens. In our system of Rule of Law every social agency conferred with power is required to act fairly so that social action would be just and there would be furtherance of the well-being of citizens. The rules of natural justice have developed with the growth of civilisation and the content thereof is often considered as a proper measure of the level of civilisation and Rule of Law prevailing in the community. Man within the social frame has struggled for centuries to bring into the community the concept of fairness and it has taken scores of years for the rules of natural justice to conceptually enter into the field of social activities. We do not think in the facts of the case there is any justification to hold that rules of natural justice have been ousted by necessary implication on account of the time frame. We do not think in the facts of the case there is any justification to hold that rules of natural justice have been ousted by necessary implication on account of the time frame. On the other hand we are of the view that the time limited by statute provides scope for an opportunity to be extended to the intended excluded employees before the scheme is finalised so that a hearing commensurate to the situation is afforded before a section of the employees is thrown out of employment. 34. In Canara Bank's case, the Apex Court elaborately considered the expression 'natural justice' and 'legal justice' and the requirements of the rule of audi alteram partem observing that natural justice is another name for commonsense justice and are not codified canons but are principles ingrained in the conscience of a man. It was further observed that the expression 'natural justice' and legal justice' do not present a water-tight classification and it is the substance of justice which is to be secured by both and whenever legal justice fails to achieve this solemn purpose, natural justice is called in aid of legal justice. Arijit Pasayat J., speaking for the bench observed thus: 15. x x x Natural justice relieves legal justice from unnecessary technicality, grammatical pedantry or logical prevarication. It supplies the omissions of a formulated law. As Lord Buckmaster said, no form or procedure should ever be permitted to exclude the presentation of the litigants' defence. 35. His Lordship having considered all relevant precedents as well as English law, observed thus: 22. How then have the principles of natural justice been interpreted in the Courts and within what limits are they to be confined? Over the years by a process of judicial interpretation two rules have been evolved as representing the principles of natural justice in judicial process, including a therein quasi judicial and administrative process. They constitute the basic elements of a fair hearing, having their roots in the innate sense of man for fair-play and justice which is not the preserve of any particular race or country but is shared in common by all men. The first rule is 'nemo judex in causa sua' or 'nemo debet esse judex in propria causa sua' as stated in (1605) 12 CR 114 tht is, 'no man shall be a judge in his own cause'. The first rule is 'nemo judex in causa sua' or 'nemo debet esse judex in propria causa sua' as stated in (1605) 12 CR 114 tht is, 'no man shall be a judge in his own cause'. Coke used the form 'aliquis non debet esse judex at pars' (Co. Litt. 1418), that is, 'no man ought to be a Judge in his own case, because he cannot act as Judge and at the same time be a party'. The form 'nemo potest esse simul actor at judex', that is, 'no one can be at once suitor and judge' is also at times used. The second rule is 'audi alteram partem', that is, 'hear the other side'. At times and particularly in continental countries, the form 'audietur at altera pars' is used, meaning very much the same thing. A corollary has been deducted from the above two rules and particularly the audi alteram partem rule, namely 'qui aliquid statuerit parte inaudita alteram actquam licet dixerit, haud acquum facerit' that is, 'he who shall decide anything without the other side having been heard, although he may have said what is right, will not have been what is right' (See Bosewell's case (1605) 6 CR.48 or in other words, as it is now expressed, 'justice should not only be done but should manifestly be seen to be done'. Whenever an order is struck down as invalid being in violation of principles of natural justice, there is no final decision of the case and fresh proceedings are left upon. All that is done is to vacate the order assailed by virtue of its inherent defect, but the proceedings are not terminated. 36. In the light of the aforesaid observations of the Apex Court and keeping in mind the fact that the State on a wrong premise, invoking its policy not to fill up vacant posts through recruitment "until relaxed" as set out in the circular dated 21.10.2009, though had approved the number of posts of non-teaching staff by orders dated 7.9.2006 and 12.09.2006, as well as made Budget allocation, could not have anulled the selection and appointments by orders dated 26.08.2010. That premise, in my opinion is perverse as it had no application to the commencement of the recruitment process made much prior to the said policy decision and more so when the Governing Council consisted of the appointees of the State who were none other than the Secretaries of its Departments. As regards the other irregularities noticed by the State and animated by the orders impugned, in my opinion, is not valid justification not to follow the principles of audi alteram partem by extending a notice to the appointees. The reasons for inviting candidates for interview in the ratio of 1: 10 and the assigning of 75% marks in the qualifying examination and 25% marks in the interview though admitted, nevertheless was subject to explanation from the Selection Committee and on that score too, there was no necessity for the State to have embarked upon a hasty decision to cancel the appointments by the orders impugned. 37. The proposition of law that no notice is necessary in the event of admitted adopting of unfair means put forth by the learned Additional Advocate General and supported by a catena of decisions, is undoubtedly a well-settled law. In Bihar School Examination Board, facts were that a vast majority of the examinees at a particular centre adopted unfair means in the conduct of the Exams of Bihar School Examination Board and therefore, was there no need to extend an opportunity to all the candidates to represent their case. The Apex Court, having regard to the facts and circumstances of the case, more appropriately in the light of examination being vitiated by adopting unfair means on a mass scale, held that it would be wrong to insist that the Board must hold a detailed enquiry into the matter and examine each individual case to satisfy itself which of the candidates had not adopted unfair means and that a full-fledged judicial enquiry would hold up the functioning of the autonomous bodies as Universities and School Boards. 38. 38. In Union Territory Of Chandigarh facts disclose that Chandigarh administration complained of unfair and injudicious manner in which select list of candidates for appointments as conductors was prepared by the Selection Board, which on an enquiry was found to be well-founded and therefore, cancellation of such dubious selection list was unassailable on the ground of want of hearing to the selectee prior to its cancellation and sequentially it was held that the Select list of candidates for appointment to civil posts is not and cannot invest an indefeasible right to be appointed to such post in the absence of any specific rule entitling him for such appointment. 39. In Satpal and Ors. v. State of Haryana and Ors.,1995 Supp (1) SCC 206 the Apex Court confirmed the findings of the Supreme Court on admitted facts that 400 to 600 candidates were called for interview daily at different places and 85% of marks allocated for viva voce was unreasonable and arbitrary. 40. In M.C. Mehta, one of the points that arose for consideration was whether the Court is not bound under Article 32 (or the High Courts under Article 226) to quash an order of the Government on the ground of breach of natural justice if such an action will result in the restoration of an earlier order of the Government which was also passed in breach of natural justice or which was otherwise illegal? The answer to the said question does not advance the case of the Respondent -State. 41. In Inder Prahas Gupta, the Apex Court while recording an opinion that Rule 51 of the J & K Medical Education (Gazetted) Services Recruitment Rules, 1979 providing 100 marks for viva voce against 40, is contrary to the law laid down by the Apex Court, nevertheless observed thus: 34. It is true that for allocation of marks for viva voce test, no hard-and-fast rule of universal application which would meet the requirements of all cases can be laid down. However, when allocation of such marks is made with an intention which is capable of being abused or misused in its exercise, it is liable to be struck down as ultra vires Article 14 of the Constitution of India. 42. However, when allocation of such marks is made with an intention which is capable of being abused or misused in its exercise, it is liable to be struck down as ultra vires Article 14 of the Constitution of India. 42. In the instant case, the allocation of 25 marks for viva voce cannot by itself and nothing more be straightaway accepted that it was provided only for the purpose of being abused or misused in the process of selection. 43. In Mohd. Sartaj And Others, the appointee admittedly did not possess requisite qualification for appointment and the cancellation when noticed, was held did not cause any prejudice to the applicant. 44. In Ashok Kumar Sonkar's case too, the recruitment process providing for eligibility conditions and the cut-off date was subject matter of consideration whence it was held that possession of requisite educational qualification was mandatory and the Appellant therein having not held the requisite qualification as on the cut-off date was ineligible for the post in question and accordingly, rule of audi alteram partem was inapplicable. 45. In Nagendra Chandra the Apex Court noticed that constables were appointed without advertising the posts in the newspapers and through the Employment Exchange as required by the Rules and hence the appointments were, as a consequence illegal and audi alteram partem did not apply. 46. The allotting of 25 marks for viva voce followed by holding interviews lasting for two or three minutes on an average for each candidate and awarding grace marks for candidates as also high marks in viva voce in inverse proportion to the awarding of marks in the qualifying examination are all pure questions of fact, which in the absence of admission and enquiry, cannot by themselves and nothing more, be construed as material irregularities vitiating the recruitment, at least as on 26.08.2010 when the orders impugned were passed by the State. None of the reported opinions supra, advance the case of the State in support of the orders impugned. 47. However, the observations apply to the selection and appointment of 35 staff nurses, in excess of 26 staff nurses and 19 Lab Technicians, one CT Scan Technician and one Radio Therapy Technician, advertised for recruitment in MMCRI. 48. The observations of the Apex Court in Rajkishore Nanda's case (supra) in the circumstances is apposite: 11. 47. However, the observations apply to the selection and appointment of 35 staff nurses, in excess of 26 staff nurses and 19 Lab Technicians, one CT Scan Technician and one Radio Therapy Technician, advertised for recruitment in MMCRI. 48. The observations of the Apex Court in Rajkishore Nanda's case (supra) in the circumstances is apposite: 11. It is a settled legal proposition that vacancies cannot be filled up over and above the number of vacancies advertised as "the recruitment of the candidates in excess of the notified vacancies is a denial and deprivation of the constitutional right under Article 14 read with Article 16(1) of the Constitution", of those persons who acquired eligibility for the post in question in accordance with the statutory rules subsequent to the date of notification of vacancies. Filling up the vacancies over the notified vacancies is neither permissible nor desirable, for the reason, that it amounts to "improper exercise of power and only in a rare and exceptional circumstance and in emergent situation, such a rule can be deviated and such a deviation is permissible only after adopting policy decision based on some rational", otherwise the exercise would be arbitrary. Filling up of vacancies over the notified vacancies amounts to filling up future vacancies and thus, not permissible in law. (Vide State of Bihar and others Vs. The Secretariat Assistant Successful Examinees Union 1986 and others, AIR 1994 SC 736 ), Prem Singh and Others Vs. Haryana State Electricity Board and Others, (1996) 4 AD SC 593 ; Ashok Kumar and Others Vs. Chairman, Banking Service Recruitment Board and Others, AIR 1996 SC 976 ); Surinder Singh and Others Vs. State of Punjab and Another, JT (1997) 7 SC 537 and Rakhi Ray and Others Vs. The High Court of Delhi and Others, AIR 2010 SC 932 ). 12. In State of Punjab Vs. Raghbir Chand Sharma and Another, AIR 2001 SC 2900 ) this Court examined the case where only one post was advertised and the candidate whose name appeared at Serial No. 1 in the select list joined the post, but subsequently resigned. The Court rejected the contention that the post can be filled up offering the appointment to the next candidate in the select list obersing as under: (SCC P. 115, para 4) 4. The Court rejected the contention that the post can be filled up offering the appointment to the next candidate in the select list obersing as under: (SCC P. 115, para 4) 4. ...with the appointment of the first candidate for the only post in respect of which the consideration came to be made and select panel prepared, the panel ceased to exist and has outlived its utility and, at any rate, no one else in the panel can legitimately contend that he should have been offered appointment either in the vacancy arising on account of the subsequent resignation of the person appointed from the panel or any other vacancies arising subsequently." 13. In Mukul Saikia and Others Vs. State of Assam and Others, AIR 2009 SC 747 this Court dealt with a similar issue and held that "if the requisition and advertisement was only for 27 posts, the State cannot appoint more than the number of posts advertised". The select list "got exhausted when all the 27 posts were filled". Thereafter, the candidates below the 27 appointed candidates have no right to claim appointment to any vacancy in regard to which selection was not held. The "currency of select list had expired as soon as the number of posts advertised were filled up, therefore, appointments beyond the number of posts advertised would amount to filling up future vacancies and the said course is impermissible in law. 49. Suffice it to state that the illegality perpetuated by MMCRI in recruiting staff in excess of what was notified as vacancies cannot be sustained and to that extent, recruitment process culminating in their appointments cannot but be held illegal. MMCRI is directed to identify the 35 staff nurses and issue necessary endorsements to them within a week from today. 50. Although learned Additional Advocate General places reliance on the decision of the Division Bench of this Court in the State of Karnataka v. G. Lakshman ILR 1987 KAR 2223 in support of the proposition that striking down an order so as to restore an order not in accordance with law in exercise of Article 226 of the Constitution of India, I am afraid, that decision, more appropriately at Paragraph 34 therein, in the facts and circumstances of the case, except as regards excess appointments in MMCRI noticed supra is inapplicable. There can be no dispute that the width of power and the disinclination to meddle except when gross injustice or fatal illegality and the like are present, inhibits the exercise of jurisdiction under Article 226 but does not abolish the power. 51. Points II and III are answered accordingly. RE POINT-IV The lis as to whether Rule 11 of the Rules empower the State to issue direction to annul the recruitment process and appointments to HIMS and MMRCI, is kept open for a decision in an appropriate proceeding. Point IV is answered accordingly. In the view that I have taken coupled with the enquiry by the Additional Chief Secretary of the State, as directed by the State in its order dated 31.08.2010 following the report dated 13.09.2010 Annexure-"R7" without dwelling into the merits or demerits of the allegations of irregularities in the process of recruitment since any observation made herein may prejudice any decision on the said questions if taken by the State at a later date, ends of justice would be met by reading down the orders dated 26.08.2010 impugned as well as the order dated 13.09.2010 Annexure-"R7" as a show cause notice permitting the Petitioners except 35 nurses, one C.T. Scan Technician and one Radio Therapy Technician at MMRCI to file their objections and directing the State to pass orders thereon, strictly in accordance with law. Petitioners having not discharged duties from 26.08.2010 onwards, are not entitled to salary or benefits up to date. Writ petitions are ordered accordingly. RMRJ: 02.11.2010 W.P. No. 27405-27572/10 ORDER ON BEING SPOKEN TO Accepting the submission of Sri Manmohan P N, learned Counsel for the Petitioners the operative portion of the order dated 21.10.2010 shall stand modified by deleting the words "one radio therapy technician" and substitute the same with the words "other selectees in excess of those notified" and in all other respects remains unaltered. Registry to show the name of Sri E S Indiresh, learned Government Advocate and Sri K M Nataraj, learned Addl. Advocate General for Respondents in the cause title.