Ram Singh Saini versus H. N. Bhargava

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148

RAM SINGH SAINI

v.

H. N. BHARGAVA

July 28, 1975

[A. ALAGIRISWAMI AND N. L. UNTWALIA, JJ.j

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. Jnterprerar[<?n of S:atu~es-l'(1jonnance of a duty by a public body--Pro1·1szon prcscnJJuzg the 1Jelll!d and also the conjequence of not perf.Jr1ninn duty within that period-PrV"ltion, if df'·ectory. ::.

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B

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•

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Sau.gar 1.J:nrer:dty Acl, 1946, s.31(aa) and statute 21-AA of the Statutes:4ppozntmcnt. of 11crsons to. ~each1ng posts-Provision for adrertisetne;u of posts and readvcr11se1nent-Pror1non, 1/ relates to awointment.

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In ptirsuancl~ of an advertlsen1ent dated 31-5-1971 by the Universitv of Saugar caH£ng for applications for the post of Professor of Zoology, five persor.s c including the appellant and the respondent applied. The Selction CPm1nittee constituted in accordance V.'ith . 47-A of the Saugar University Act 1946 for ".::insidcring these applicat;.o.r.s reco1umended on 4-12-1971 the name of the appellant to the Executive COl.i.llCil, v1hich was competent to make the appointn1ent. The Lxecutive Ccuncil refused to accept the recommendation of the Selection Committee c.n thr ground that it would lead to administrative and disciplinary .;omplications. 1hereupon the appellant filed a writ petition !°er q1Jashin,; th resolution of the Executive Council and it \Vas quashed by the High Court of D :r..tadhya Pradesh. Thereafter on 18-2-1973 the Executive Council appointed the appeilant as Professor of Zcology. On 9-7-1973 the respondent filed a writ petition for quashing the appe!lant's appointment. The High Court uf Madhya Pradesh quashed the resolution dated 18-2-1973 appointing the appe11ant as J¹ rofessor of Zoology and intlicated 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 appointmel!t was made more than a year .after the recGmn1endation of the Selection Cooinllttee was made and this was not pennissi01e. 1'he High Court relied upon the statute 2l·AA of the Statutes oi 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 uf appontment of teachers of the University paid by the University. The requirement of t.ub·rule (2) C'f statute No. 21·AA is that the post should be re· advertised before making an appointment if the appointment is not Jnade \vithin a year of the S;Jection Committee"s recommendation. · In this appeal by special leave it was contended for the appellant that (i) F the statute is directory and not n1andatory, and (ii) that, in any case, the statutt.! is beyond the ru!e making power conferred by section 31(aa). Rejecting the conte.utic.ns and dismissing the appeal, I HELD : 1£)_ 1he question whether a particular provision C'lf a statut~ js directory or n1andatory 111ight arise in a case where merely a period is specified for performing a duty but the consequenes of not pcrforn1ing the duty. within that period are not nlentioned. In this case, the statute clearly provides for the contingency of the duty not being perforn1ed within the period f).xed by the statute G and the c.onseqLient:e thereof. Uc.Jes:; the post is readvertised and an appointment i:i made from._an1ong those persons v,;ho apply in response to the readvertiserne1t the appointment cannot be said to be valid. Though the re<1;son ft?r the del~y in making the appointment \'as the \Vrongful refusal of the E.xecuttve Council to ' act in pursuance of the recommendation of the Selection Committee and th(! -1 pendency of the \·!it petirio!l 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. [150 F-HJ H

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(ii) Unless it could be said_ that the rule has no relation to the power c?nferred bv the rule-making power it cannot be sa:d to be beyond the rule-making poll.er. -The ~tntute provides thrit the appointment should be made after the post

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R. s. SAINI V. H. N. BHARGAVA (Alagiriswami, J.)

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149

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,

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is advertised <ind the applications received considered by a co.uuniltee of selec⁴ tion. It also provides that if no appointment is made t9 the post \Vithin one year frcn1 the dnte of non1ina1ion by the selection committee the post shall be readvertised. The rule ther:::tore certainly relates to the mode of appointn1ent. It cannot be said to ?e unrelated to the mode of appointip.ent. [151A-C]

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t

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B

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Dr. P. S. Venkataswan1y v. University of Mysore A.I.R. 19641'Iysore 159 and S. B. /\ay v. P. 1'. Banerjee, 72 C.W.N. 50, referred to.

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CIVIL APPELLATE JURismcnoN : Civil Appeal No. 1588 of 1974.

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Appeal by special leave from the Judgement and Order dated the 9th July, 1973 of the Madhya Pradesh High Court in Misc. Petition No. 163/73.

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L. M. Singhvi and S. K. Dhingra, for the appellant.

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c

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S. C. Manchanda, Urmi/a K~voor and Kamlesh Bensal, for respondent.

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The Judgment of the Court was delivered by

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ALAGIRISWAM!, J.-This appeal raises the question of the validity of the appointment of the appellant as a Professor of Zoology in the D University of Sangar.

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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 E 4-12-1971 the Selection Committee recommended the name of the appellant to the Executive Council, which was competent to 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 Coun- F cil 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 G 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 appoint• ment. The High Court of Madhya Pradesh qnashed 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 H to fill in the vacancy. The gronnd 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

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,

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(1976] 1 S.C.R.

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SUPREME COURT REPORTS

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150

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permissible. The High Court relied upon the statute 21-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 Univasity paid by the University. The statute in question reads as follows :

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A

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"Statute No. 21-AA"

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(I) 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 provid·ed for under Sub-Section (2) of Section 47-A of the University of Saugar Amendment Act, 1965.

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(2) If no appointment is made to a post within one year from the date of the nomination by tJJe Selection Committee then the post shall be readvertised before making an appointment as provided for under (I) above."

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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.

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E

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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 fui1ction, 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 provides for the contingency of the duty not being performed within the period fixed by the statute and the consequence thereof. This prcceeds 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 ~hould lJe readvertiscd. So unfess the post is readvertised and an appointment is made from among those persons who apply in response to the readverlisement the appointment cannot be said to be valid. Though the reason for th-e 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 anv 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

F

G

H

I

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R. s. SAINI v. H. N. BHARGAVA (A/agiriswami, /.)

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151

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A 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 regurd to tbe mode of appointment of teachers of the University. The statute provides that the appointment should be made after the post is adver··

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B tised 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

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y post shall be readvertised. The rule therefore certainly relates to the mode of appointment. It cannot b~ said to be urirelat·od 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.

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c 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 in derogation of the provisions of the statute.

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It was then argued on behalf of the appellant that the post of ihe

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D Professor of Zoology is not a public office and therefore a writ of quo warranto cannot be issued. The decisions in Dr. P. S. Venkataswamy v. University of Mysore(i) and S. B. Ray v. P. N. Banerjee(') 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

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E 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 issued 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 appel-

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