- Bookmark
- Share
- CaseIQ
Ram Singh Saini v. H.N Bhargava .
Factual and Procedural Background
The University of Saugar advertised the post of Professor of Zoology on 31 May 1971. Five applicants, including the appellant and the respondent, applied. A Selection Committee constituted under Section 47-A of the Saugar University Act, 1946 recommended only the appellant on 4 December 1971. The Executive Council, empowered to make the final appointment, rejected the recommendation citing “administrative and disciplinary complications.”
The appellant successfully challenged that rejection before the Madhya Pradesh High Court, which quashed the Executive Council’s resolution. Complying with the High Court’s order, the Executive Council appointed the appellant on 18 February 1973. On 9 July 1973 the respondent filed a second writ petition seeking to quash this appointment. The High Court held that the appointment violated Statute 21-AA—requiring re-advertisement if an appointment is not made within one year of the Selection Committee’s recommendation—and set aside the appointment. The University thereafter re-advertised the post. The present appeal challenges the High Court’s decision.
Legal Issues Presented
- Whether Statute 21-AA, which mandates re-advertisement if no appointment is made within one year of nomination by the Selection Committee, is mandatory or merely directory.
- Whether Statute 21-AA is ultra vires the rule-making power conferred by Section 31(aa) of the Saugar University Act, 1946.
- Whether the High Court erred in issuing relief on a writ petition characterised, inter alia, as one for quo warranto (i.e., whether the post is a public office and whether such a writ could lie).
Arguments of the Parties
Appellant’s Arguments
- Statute 21-AA is only directory; therefore, non-compliance within the one-year period should not invalidate the appointment.
- The statute exceeds the rule-making power under Section 31(aa), as it allegedly goes beyond regulating the “mode of appointment.”
- The post of Professor of Zoology is not a public office; consequently, a writ of quo warranto would not be maintainable (relying on P.S. Venkataswamy v. University of Mysore and S.B. Ray v. P.N. Banerjee).
Respondent’s Arguments
This information was not available in the provided opinion.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| P.S. Venkataswamy (Dr) v. University of Mysore, AIR 1964 Mys 159 | Definition of a “public office” for purposes of issuing a writ of quo warranto. | Cited by the appellant; the Court found the discussion unnecessary because the High Court had issued a writ of certiorari, not quo warranto. |
| S.B. Ray v. P.N. Banerjee (citation not fully supplied) | Similar proposition that certain university posts are not “public offices.” | Also relied upon by the appellant; similarly held irrelevant to the decision. |
Court's Reasoning and Analysis
Justice A. Alagiriswami held that Statute 21-AA is mandatory, not directory. The statute expressly provides the consequence of non-compliance: if an appointment is not made within one year of the Selection Committee’s nomination, the post “shall be readvertised.” Because the Executive Council appointed the appellant on 18 February 1973—more than a year after the 4 December 1971 nomination—without re-advertising, the appointment contravened the statute.
The Court rejected the contention that Statute 21-AA exceeded the power conferred by Section 31(aa). Regulating re-advertisement after lapse of time was held to relate directly to the “mode of appointment” of teachers and therefore fell squarely within the statutory rule-making authority. The rationale—that fresh advertisement after a year expands the field of eligible candidates—was deemed reasonable and connected to fair selection procedures.
Arguments concerning the maintainability of a writ of quo warranto were found misplaced. The High Court had issued a writ of certiorari quashing the appointment; hence, whether the post constituted a “public office” was irrelevant and had neither been raised before the High Court nor in the special leave petition.
The Court also noted the absence of any stay order preventing the Executive Council from making an appointment within the statutory period; therefore, the delay could not be excused on that ground.
Holding and Implications
Appeal Dismissed.
The Supreme Court affirmed the High Court’s quashing of the appellant’s appointment. The post has already been readvertised, and the appellant remains free to compete afresh. The judgment does not announce a new precedent but reinforces the binding nature of university statutes enacted under valid rule-making authority. No order as to costs was made.
A. 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.
2. In pursuance of an advertisement dated May 31, 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 December 4, 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 make the final selection from among persons recommended by the Selection Committee. But where the Executive Council proposes to make appointment otherwise 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 February 18, 1973 the Executive Council appointed the appellant as Professor of Zoology. On July 9, 1973 the respondent filed a writ petition for quashing the appellant's appointment. The High Court of Madhya Pradesh quashed the resolution dated February 18, 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 recommendation of the Selection Committee was made and this was not permissible. The High Court relied upon the Statute 21-AA of the Statutes of the University made under Section 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 the 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.”
3. 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.
4. 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 21-AA. The position may well have been otherwise if there had been a stay 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 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. 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 in derogation of the provisions of the statute.
5. 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 P.S Venkataswamy (Dr) v. University of Mysore AIR 1964 Mys 159 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 the resolution of the Executive Council dated February 18, 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 appellant. We cannot therefore decide the present appeal on the basis that what was issued was a writ of quo warranto.
6. It should also be noticed that the post has since been readvertised and it is open to the appellant to apply again.
7. 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.
Alert