LexRAM 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 . Jnterprerar[<?n of S:atu~es-l'(1jonnance of a duty by a public body--Pro- 1·1szon prcscnJJuzg the 1Jelll!d and also the conjequence of not perf.Jr1ninn duty within that period-PrV"ltion, if df'·ectory. ::. 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. 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 including the appellant and the respondent applied. The Sel~ction 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 appel- lant 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 :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 peti- tion for quashing the appe!lant's appointment. The High Court uf Madhya Pra- desh quashed the resolution dated 18-2-1973 appointing the appe11ant as J1rofes- sor 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 recGm- n1endation 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 appo~ntment of teachers of the University paid by the University. The re- quirement 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) 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, 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 consequen~es of not pcrforn1ing the duty. within that period are not nlentioned. In this case, the statute clearly provides for the con- tingency of the duty not being perforn1ed within the period f).xed by the statute 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 readvertiserne~1t 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(! 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 (ii) Unless it could be said_ that the rule has no relation to the power c?n- ferred 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 ..-- • B c - D F - I G ' -1 H , t B c D E • F \ G H R. s. SAINI V. H. N. BHARGAVA (Alagiriswami, J.) 149 is advertised <ind the applications received considered by a co.uuniltee of selec 4 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 re- advertised. The rule ther:::tore certainly relates to the mode of appointn1ent. It cannot be said to ?e unrelated t
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