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 section K. Dhingra, for the appellant.
section 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 section 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 make the appointment.
Under the provisions of section 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 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. section Venkataswamv v University of Mysore(1) and section B. Ray vs 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.


Summary:
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 section 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 section 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 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. section Venkataswamy vs University of Mysore A.I.R. and S.B. Ray vs P.N. Banerjee, , referred to.