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PETITIONER: RAM SINGH SAINI

       Vs.

RESPONDENT: H. N. BHARGAVA

DATE OF JUDGMENT28/07/1975

BENCH: ALAGIRISWAMI, A. BENCH: ALAGIRISWAMI, A. UNTWALIA, N.L.

CITATION:  1975 AIR 1852            1976 SCR  (1) 148  1975 SCC  (4) 676

ACT:      Interpretation of  statutes-Performance of  a duty by a public body-Provision  prescribing the  period and  also the consequence of  not performing  duty with  in  that  period- Provision, if directory.      Saugar University  Act, 1946, s.31 (aa) and statute 21- AA of the Statutes-Appointment of persons to teaching posts- Provisions for  advertisement of  posts and readvertisement- Provision, if relates to appointment.

HEADNOTE:      In pursuance  of an  adevertisement  dated 31-5-1971 by the University  of Saugar  calling for  applications for the post of  Professor of  Zoology, five  persons including  the appellant  and   the  respondent   applied.  The   Selection Committee constituted  in accordance  with s.  47-A  of  the Saugar   University   Act   1946   for   considering   these applications  recommended  on  4-12-1971  the  name  of  the appellant to  the Executive  Council, which was competent to make the  appointment.  The  Executive  Council  refused  to accept the recommendations of the Selection Committee on the ground that it would lead to administrative and disciplinary complications. Thereupon the appellant filed a writ petition for quashing  the resolution of the Executive Council and it was Quashed  by the High Court of Madhya Pradesh. Thereafter on 18-2-1973  the Executive  Council appointed the appellant as Professor  of Zoology. On 9-7-1973 the respondent filed a writ petition  for quashing  the appellants appointment. The High Court  of Madhya  Pradesh quashed  the resolution dated 18-2-1973 appointing  the appellant  as Professor of Zoology and indicated  that the  University may advertise the post a fresh if  they desire  to fill in the vacancy. The ground on which the  resolution was  quashed was  that the appointment was made  more than  a year  after the recommendation of the Selection Committee  was made  and this was not permissible. The High  Court relied  upon the  Statutes of the University made under s. 31(aa) of the Act for this conclusion.      Section 31 (aa) enables statutes to be made among other things, for  the mode  of appointment  of  teachers  of  the University paid  by the  University. The requirement of sub- rule (2)  of statute  No. 21-AA  is that  the post should be readvertised before making an appointment if the appointment

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is not  made  within  a  year  of  the  Section  Committee’s recommendation.      In this  appeal by  special leave  it was contended for the appellant  that (i)  the statute  is directory  and  not mandatory, and (ii) that, in any case, the statute is beyond the rule making power conferred by section 31(aa).      Rejecting the contentions and dismissing the appeal, ^      HELD : The question whether a particular provision of a statute is  directory or  mandatory might  arise in  a  case where merely a period is specified for performing a duty but the consequences  of not  performing the  duty  within  that period are  not mentioned. In this case, the statute clearly provides for the contingency of the duty not being performed within the  period fixed  by the statute and the consequence thereof. Unless  the post is readvertised and an appointment is made  from among  those persons  who apply in response to the readvertisement  the appointment  cannot be  said to  be valid. Though  the  reason  for  the  delay  in  making  the appointment  was  the  wrongful  refusal  of  the  Executive Council to  act in  pursuance of  the recommendation  of the Selection Committee  and the  pendency of  the writ petition filed by  the appellant  in the  High Court that does not in any way  minimise the  effect of sub-rule (2) of statute No. 21 AA. [150F-H]      (ii) Unless  it could  be said  that the  rule  has  no relation to  the power conferred by the rule-making power it cannot be  said to  be beyond  the  rule-making  power.  The statute provides  that the  appointment should be made after the post 149 is advertised  and the applications received considered by a committee  of   selection.  It  also  provides  that  if  no appointment is  made to  the post  within one  year from the date of nomination by the selection committee the post shall be readvertised. The rule therefore certainly relates to the mode of  appointment. It  cannot be  said to be unrelated to the mode of appointment.[151A-C]      Dr. P.  S. Venkataswamy  v. University of Mysore A.I.R. 1964 Mysore 159 and S.B. Ray v. P.N. Banerjee, 72 C.W.N. 50, referred to.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 1588 of 1974.      Appeal by  special leave  from the  Judgment and  order dated the 9th July, 1973 of the Madhya Pradesh High Court in Misc. Petition No. 163/73.      L M. Singhvi and S. K. Dhingra, for the appellant.      S. C.  Manchanda, Urmila Kapoor and Kamlesh Bansal, for respondent.      The Judgment of the Court was delivered by      ALAGIRISWAMI,J.-This appeal  raises the question of the validity of  the appointment of the appellant as a Professor of Zoology in the University of Saugar.      In pursuance of an advertisement dated 31-5-1971 by the University  calling   for  applications   for  the  post  of Professor of  Zoology five  persons including  the appellant and the  respondent applied.  A Committee  of Selection  was constituted  in  accordance  with  s.  47-A  of  the  Saugar University Act 1946 to consider these applications. On 4-12- 1971 the  Selection Committee  recommended the  name of  the appellant to  the Executive  Council, which was competent to

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make the  appointment. Under  the provisions  of s. 47-A the Executive Council has to take the final selection from among persons recommended  by the  Selection Committee.  But where the Executive Council proposes to make appointment otherwise than in  accordance with  the order of merit arranged by the committee the Executive Council should record its reasons in writing and  submit its  proposal for  the sanction  of  the Chancellor. In the present case the appellant being the only person whose  name had been recommended had ordinarily to be appointed. The Executive Council, however, refused to accept the recommendation  of the Selection Committee on the ground that  it  would  lead  to  administrative  and  disciplinary complications. Thereupon the appellant filed a writ petition for quashing  the resolution of the Executive Council and it was quashed  by the High Court of Madhya Pradesh. Thereafter on 18-2-1973  the Executive  Council appointed the appellant as Professor  of Zoology. On 9-7-1973 the respondent filed a writ petition  for quashing the appellant’s appointment. The High Court  of Madhya  Pradesh quashed  the resolution dated 18-2-1973 appointing  the appellant  as Professor of Zoology and indicated  that the  University may  advertise the  post afresh if  they desire to fill in the vacancy. The ground on which the  resolution was  quashed was  that the appointment was made  more than  a year after the re commendation of the Selection Committee was made and this was not 150 permissible. The  High Court  relied upon the statute 2 l-AA of the   Statutes  of the University made under s.31 (aa) of the Act  for this  conclusion. This section enables statutes to be  made, among other things, for the mode of appointment of teachers  of the  University paid  by the University. The statute in question reads as follows:                    "Statute, No. 21 -AA"           (1)  All  vacancies   in  teaching  posts  of  the                University (except  those  to  be  filled  by                promotion as  provided for  under sub-section                (aaa)  of   Section  31-)   shall   be   duly                advertised  and   all  applications  will  be                placed before  the Committee  of Selection as                provided for under Sub-Section (2) of Section                47-A of  the University  of Saugar  Amendment                Act, 1965.           (2)  If no  appointment is  made to  a post within                one year  from the  date of the nomination by                the Selection  Committee then  the post shall                be readvertised  before making an appointment                as provided for under (1) above."      Quite clearly  the appointment  made more  than a  year after the  date of  nomination by the Selection Committee is not in accordance with the statute 21-AA. The requirement of the statute  is that  the post should be readvertised before making an  appointment if the appointment is not made within a year of the Selection Committee’s recommendation.      On behalf  of the  appellant it  was  argued  that  the statute is directory and not mandatory, that in any case the statute is beyond the rule making power conferred by section 31(aa). A number of decisions were relied upon in support of the submission  that where  a provision  of law  lays down a period  within  which  a  public  body  should  perform  any function,  that   provision  is  merely  directory  and  not mandatory. The  question whether a particular provision of a statute is directory or mandatory might well arise in a case where merely a period is specified for performing a duty but the consequences  of not  performing the  duty  within  that period are  not mentioned.  In this case clearly the statute

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provides for the contingency of the duty not being performed within the  period fixed  by the statute and the consequence thereof. This  proceeds on the basis that if the post is not filled within  a year from the date of the nomination by the Selection Committee  the post  should  be  readvertised.  So unless the  post is  readvertised and an appointment is made from among  those persons  who  apply  in  response  to  the readvertisement the  appointment cannot be said to be valid. Though the  reason for  the delay  in making the appointment was the  wrongful refusal of the Executive Council to act in pursuance of  the recommendation  of the Selection Committee and the pendency of the writ petition filed by the appellant in the  High Court,  that does  not in  any way minimise the effect of  sub-rule (2)  of statute  No. 21-AA. The position may well have been otherwise if there had been a stay 151 or direction  prohibiting the  Executive Council from making the appointment.  Such is  not the  case  here.  We  do  not therefore  think   it  necessary   to  discuss  the  various decisions relied  upon by  the appellant.  Nor can  we agree that the  statute in  question is  beyond  the  rule  making power. Under section 31(aa) statutes can be made with regard to the  mode of  appointment of  teachers of the University. The statute  provides that  the appointment  should be  made after the  post is  advertised and the applications received considered by  a committee  of selection.  It also  provides that if  no appointment is made to the post with in one year from the  date of  nomination by the selection committee The post shall  be readvertised.  The rule  therefore  certainly relates to  the mode of appointment. It cannot be said to be unrelated to the mode of appointment. It apparently proceeds on the  basis that  after the  lapse of  a year there may be more men  to choose  from. Unless  it could be said that the rule has  no relation  to the  power conferred  by the rule- making power  it cannot be said to be beyond the rule-making power. Such  is not the position here. We are also unable to agree that the statute is in conflict with or ill derogation of the provisions of the statute.      It was  then argued on behalf of the appellant that the post of  the Professor of Zoology is not a public office and therefore a  writ of  quo warranto  cannot  be  issued.  The decisions  in   Dr.  P.  S.  Venkataswamv  v  University  of Mysore(1) and S. B. Ray v. P. N Banerjee(2) were relied upon to contend  that the post in question is not a public office and therefore  no writ  of quo  warranto can  issue. But  it should be noticed that no writ of quo warranto was issued in this case.  What was  issued was a writ of certiorari as the order of  the High  Court only quashed the resolution of the Executive Council  dated  18-2-1973.  In  his  petition  the respondent had  asked for  (1) a  writ of  certiorari, (2) a writ of  mandamus, and  (3) a writ of quo warranto. What was assumed was  a writ  of certiorari.  The question  whether a writ of  quo warranto  could issue  in the  circumstances of this case and whether the office was a public office was not raised or  argued before  the High  Court. Indeed it was not even raised  in the  special leave  petition  filed  by  the appellant. We  cannot therefore decide the present appeal on the basis that was issued was a writ of quo warranto.      It should  also be noticed that the post has since been readvertised and it is open to the appellant to apply again.      We see  no merits  in this appeal and it is accordingly dismissed. But  in the  circumstances of the case there will be no order as to costs. V.M.K.                                     Appeal dismissed. (1) A.I.R. 1964 Mys. 159                      (2) 72C.W.N 50

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