- (1.) BY the Court :-Arun Kumar Shukla, Kumud Nath Sharma and Kailash Rai, the three petitioners, were appointed as Lecturers in the Faculty of Law in the University of Allahabad, in March, 1974. Kumud Nath Sharma, petitioner No. 2, was on completion of probationary period, confirmed in service with effect from 16th March, 1975. On a representation made by an unsuccessful candidate, G. S. Tewari, the Chancellor, exercising his powers under section 68 of the U. P. State Universities Act, 1973, set aside the petitioners' appointment by his order dated January 3, 1976, on the ground that vacancies against which the petitioners had been appointed, had not been advertised in at least three issues of two newspapers as enjoined by section 31 (10) of the U. P. State Universities Act, 1973. Aggrieved, the petitioners have approached this Court by means of this petition under Article 226 of the Constitution for issue of a writ of certiorari quashing the order of the Chancellor.
(2.) SECTION 31 of the State Universities Act provides procedure for inviting applications, constitution of Selection Committee, and selection and appointment of teachers on the recommendation of the Selection Committee. Sub-section (10) of SECTION 31 is in the following terms ;- "31 (10) No selection for any appointment under this section shall be made except after advertisement of the vacancy in at least three issues of two newspapers having adequate circulation in Uttar Pradesh." The above provision is in negative terms, which lays down a mandatory rule that no person shall be selected for appointment as a teacher unless the vacancy in the post is advertised in newspapers having adequate circulation in Uttar Pradesh. The provision is in two parts. The first part lays down that no selection or appointment shall be made unless the vacancy is advertised. The second part lays down that the advertisement of the vacancy shall be made in three issues of two newspapers having adequate circulation in Uttar Pradesh. The second part lays down the manner of publication of the advertisement. The underlying purpose and object of the publication of the advertisement in at least three issues of two newspapers having adequate circulation in Uttar Pradesh is to afford opportunity to eligible canoidates for making their application so that the Selection Committee may select a suitable person for appointment. There is no manner of doubt that no selection for appointment as a teacher in the University can be made by a Selection Committee unless the vacancy in the post is advertised, but if those who are responsible for the publication of the advertisement in newspapers do not take adequate care to get the advertisement published in three issues of two newspapers, instead they get it published in two issues of newspapers, will the selection of a person made by the Selection Committee be rendered invalid. If the second part of the section laying down the manner of publication of the advertisement in three issues of two newspapers is held mandatory the appointment will be certainly illegal but if it is held to be directory the appointment will not be vitiated. Crawford on 'Statutory Construction' at page 516 states : "The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislature must govern and these are to be ascertained, not only from the phraseology of the provision, but also by considering its nature, its design and the consequences which would follow from construing it the one way or the other." The above passage was quoted with approval by the Supreme Court in Raza Bulund Sugar Co. Ltd. v. Municipal Board Rampur, AIR 1965 SC 895. In that case the validity of imposition of tax by a Municipal Board under the U. P. Municipalities Act was challenged. SECTION 131 (3) of the U. P. Municipalities Act, 1916, required the Board to publish draft rules for assessment and collection of the tax in the manner prescribed in section 94. The requirement of publication of the proposals as contemplated by section 131 (3) of the Act was to afford opportunity of objection to the public. The Supreme Court held that sub-section (3) of section 131, could be divided into two parts. The first one provided that the proposal and draft rules for a tax intended to be imposed should be published for the objections of the public and the second laid down that the publication must be in the manner laid down in sub-section (3) of section 94. After considering the object of the provision for publication, namely, to enable the public to place its view point the Court held that the first part of the section was mandatory which required publication of the proposals, but the second part of the section which laid down the manner of publication was merely directory. SECTION 94 (3) laid down that every resolution passed by a Board at a meeting shall as soon as may be published in a local paper in Hindi. In Raza Bulaud Sugar Company's case the publication had been made by the Board in a local paper, but that local paper was not published in Hindi, instead it was published in Urdu. The contention on behalf of the company that there was no compliance with section 94 (3) was repelled by the Supreme Court, it held that the publication in the local newspaper in Urdu amounted to sufficient compliance with the provisions of section 94 (3) as the manner of publication was directory. The Supreme Court observed that the question whether a particular provision of a statute is merely directory or mandatory cannot be resolved by laying down any general rule as it depends upon the facts of each case and for that purpose the object of the statute in making the provision is the determining factor. The Court observed ; "The purpose for which the provision has been made and its nature, the intention of the legislature in making the provision, the serious general inconvenience or injustice to persons resulting from whether the provision is read one way or the other, the relation of the particular provision to other provisions dealing with the same subject and other considerations which may arise on the facts of a particular case including the language of the provision, have all to be taken into account in arriving at the conclusion whether a particular provision is mandatory or directory." In Montreal Street Railway Company v. Normandin, AIR 1917 PC 142 the Privy Council observed thus : "The question whether provisions in a statute are directory or imperative has very frequently arisen in this country, but it has been said that no general rule can be laid down, and that in every case the object of the statute must be looked at...............When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience, or injustice to persons who have no control over those entrusted with the duty, and at the same time would not promote the main object of the Legislature, it has been the practice to hold such provisions to be directory only, the neglect of them, though punishable, not affecting the validity of the acts done." The above observation of the Privy Council was quoted with approval by the Supreme Court in State of Uttar Pradesh y. Manbodhan Lal Srivastava, AIR 1957 SC 912; State of U. P. v. Babu Ram Vpadhya, AIR 1961 SC 751 and M. Karunamdhi v. H. V. Handa, AIR 1983 SC 558. In the instant case the . University of Allahabad issued advertisement on July 25, 1972, inviting applications for appointment to the three posts of Lecturers in Law. The advertisement was published in five national dailies of India, namely, Northern India Patrika, Allahabad, Bharat of Allahabad, National Herald of Lucknow, Statesman of Delhi and Calcutta and Hindustan Times, New Delhi. The advertisement, was published in the newspapers in accordance with section 31 (10) of the Act and the Statutes framed under the Allahabad University Act, 1921, which required publication of an advertisement in two newspapers only. A number of persons including the petitioners and G. S. Tewari, a part time Lecturer in the Facultly of Law, applied for the posts. On 18th June, 1973, the U. P. State Universities Ordinance (U. P. Ordinance No. 1 of 1973) was enforced. The University thereupon issued fresh advertisement for the three posts of Lecturers in law on 11th July, 1973, which was published in seven national dailies of the country, namely, Northern India Patrika, Allahabad, National Herald of Lucknow, Statesman of Delhi and Calcutta, Times of India, Bombay, Hindu of Madras, Indian Express of Delhi and Ahmedabad, and Hindustan Times of Delhi. The advertisement as published in these newspapers contained a note that those who had already applied on July 25, 1972, need not apply afresh. On July 20, 1973, another advertisement was issued in the form of corrigendum giving out that the appointment would be on probation for one year instead of two years. This corrigendum was also published in the aforesaid national dailies. The advertisements inviting applications were published in the aforesaid national dailies. The advertisements inviting applications were published by the aforesaid newspapers on different dates. In response to the advertisements forty-five persons belonging to Uttar Pradesh, Rajasthan and Himachal Pradesh applied for the three vacancies. Forty three applicants were called for interview, of whom twenty-one presented temselves before the Selection Committee. On the recommendation of the Selection Committee the Executive Council appointed the petitioners in the vacancies so advertised. G. S. Tewari who was one of the applicants, also appeared before the Selection Committee, but he was not recommended for appointment.
(3.) IN the instant case, the advertisement was published not only in two newspapers but in seven different newspapers of repute having circulation not only in the State of Uttar Pradesh but in other States also. The advertisement was published into issues of seven newspapers or national dailies of INdia. The purpose and object underlying section 31 (10) to afford opportunity to suitable candidates for making applications for the post was adequately achieved inasmuch as the advertisement was widely published in the entire country and 45 persons belonging to different parts of the country applied for the posts in question. The Selection Committee had opportunity to select suitable persons out of these candidates. That purpose was adequately achieved on the facts of this case. The above facts if examined in the light of the principles laid down by the courts would make it apparent that the underlying purpose and object of section 31 (10) requiring publication of advertisement in three issues of two newspapers was adequately achieved inasmuch as the advertisement had been published in two issues of seven national newspapers having wide circulation in the entire country, as a result of which 45 persons coming from different parts of the country applied for the post in question The Selection Committee had opportunity to select suitable persons out of a large number of candidates available to them. In the circumstances we are of the opinion that the second part of sub-section (10) of section 31 was substantially complied with and full opportunity was given to the eligible candidates for making their applications.;