Judgement

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 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 S. 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 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 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 promotion as provided for under sub-section (aa) of Sec. 31) shall be duly advertised and all applications will be placed before the Committee of Selection as provided for under sub-section. (2) of S. 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 Sec. 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. ln