H.R. Panwar, J. - (1.) THIS appeal is barred by limitation by 72 days. No cause much less sufficient cause has been shown by the appellant in the application filed by him under Section 5 of the Limitation Act. In the affidavit, it is stated that the appellant has not received any communication from his counsel regarding the decision of the writ petition, The appellant has not filed an affidavit of the counsel, who was representing him before the learned Single Judge of this Court. The appellant stated in the affidavit that he is residing 500 kms. away from Jodhpur. Obviously, this statement is incorrect inasmuch as the distance from his residence i.e. Bikaner to Jodhpur is not more than 250 kms. However, we propose to examine the special appeal on merits.
(2.) APPELLANT -petitioner was initially appointed as Deputy Secretary to Rajasthani Bhasa Sahitya Ewam Sanskrit Academy, Bikaner (hereinafter for short the Academy') on temporary basis vide order dated 1.2.1985 (Annex. 3). Subsequently vide order dated 1.2.1986 (Annex. 4), the services were made permanent on the post of Deputy Secretary of the Academy. The Secretary of the Academy Shri Onkar Pareekh sought voluntary retirement, which was accepted and the appellant was given additional charge of the post of Secretary, While the appellant -petitioner was holding the additional charge of Secretary, in pursuance of order Annex. 6 dated 13.5,1987, the Executive Committee of the Academy took a decision to confirm the services of the appellant on the post of Secretary vide Annex. 7 dated 3.1.1988 and on the basis of the decision of the Executive Committee of the Academy vide order Annex. -8 dated 28.1.1988 the Chairman of the Academy passed order by which the appellant was made permanent on the post of Secretary. The State Govt. in the meanwhile came to know of the illegal action of the Academy by which the appellant was appointed as Secretary without authority of law, wrote a letter to the Academy that under Clause 8 (Ka) of the constitution of the Academy, the Secretary would be Chief Executive Officer of the Academy, whose appointment is to be made by the State Govt. By this letter order Annex. 8 -A dated 17.9.1988, the State Govt. specifically directed the Chairman of the Academy to remove the appellant forthwith from the post of Secretary. Inspite of the clear provisions of Clause 8(Ka) of the aforesaid constitution and under the bye laws that regular appointment of the Secretary can only be made by the State Govt. and not by the Executive Committee of the Academy or its Chairman, the Chairman of the said Academy issued an advertisement Annex. 10 by which applications for selection to the post of Secretary were invited and the Academy conducted the examination. On the basis of the recommendation of the Selection Committee, the post of Secretary was sanctioned in favour of the appellant by the Chairman of the Academy vide Annex. 11 dated 16.1.1989. The State Govt. having come to know of the action of the Executive Committee of the Academy and its Chairman, issued order Annex. 12 dated 4.3.1989 by which the order Annex. 8 dated 28.11.1988 issued by the Chairman of the Academy was declared inoperative with immediate effect and the appellant was directed to be reverted and as such, the order dated 28.1.1988 passed by the Chairman of the Academy by which the appellant was appointed on the post of Secretary, was quashed with immediate effect and the appellant was directed to be reverted to its original post of Deputy Secretary and it was ordered that the District Education Officer, Bikaner will discharge the functions of the Secretary. Against the order Annex. 12 dated 4.3.1989, the appellant filed a writ petition before this Court. The respondent State filed its counter reply affidavit and opposed the writ petition filed by the appellant -petitioner. It has been contended by the respondent State that Clause 8(Ka) of the constitution of the Academy clearly provides that it is State Govt. alone, who has power to select and appoint Secretary and the Secretary so appointed by the State Govt. would be Chief Executive Officer. Any other person including the Executive Committee of the Academy or the Chairman of the Academy are not empowered either to select or appoint Secretary of the said Academy. It was contended by the respondent State that the Academy of its own could not have undertaken the exercise of selection and appointment of the appellant on the post of Secretary. The advertisement Annex. 10 and the selection of the appellant vide Annex. 11 is violative of clause 8(Ka) of the constitution of the Academy and as such, the order Annex. 11 cannot be sustained. The State Govt. has exclusive power to advertise and appoint Secretary under the constitution of the Academy and since the power of appointing the Secretary exclusively vests in the State Govt, it cannot be permitted to be exercised either by the Executive Committee of the Academy or its Chairman. It was contended that the order passed by the Academy and its Chairman Annexures 10 and 11 is beyond their competence and as such, they are null and void.
(3.) IT was contended by the learned Counsel for the appellant that by Annex, 8 -A, the State Govt. directed the Chairman for proper appointment and in compliance of Annex. 8 -A, the Chairman of the Academy invited applications vide Annex. 10 and the appellant was found eligible and appointed vide Annex. 11. He contended that the appointment of the appellant -petitioner be construed to be made by the State Govt., as the same was made by the Chairman of the Academy. We are unable to accept the contention of the learned Counsel for the appellant. The order Annex. 8 -A is very specific wherein the State Govt. has made it clear that according to Clause 8(Ka) of the constitution of the Academy, the appointment of the Secretary has to be made by the State Govt. A perusal of Annexure 8 -A further shows that the State Govt, had made it clear that it has been brought to the notice of the State Govt. that vide order dated 28.8.1988, the Deputy Secretary of the Academy Shri Prithvi Raj Ratnu has been appointed permanently on the post of Secretary w.e.f. 1.1.1988 by the Chairman of the Academy which is contrary to the provisions of the constitution of the Academy and the State Govt. further directed that the appellant be removed from the post of Secretary forthwith and put to his original post of Deputy Secretary. Thus, the contents of order Annex. 8 -A are very specific as to the competence of the State Govt. alone to appoint the Secretary. The Executive Committee of the Academy or its Chairman have never been authorised by the State Govt. to appoint the appellant on the post of Secretary, It is settled legal proposition that any appointment made without authority of law is void and nullity. In the instant case, the power conferred upon one authority has been exercised by another. If a statutory authority has been vested with a jurisdiction, it has to be exercised by it in accordance with its discretion. The power conferred upon one authority is in substance exercised by another is void and nullity. In Dr. M.A. Hague and others v. : (1993)ILLJ1139SC , the Hon'ble Supreme Court held as under: The recruitment rules made under Article 309 of the Constitution have to be followed strictly and not in breach. If a disregard of the rules and the by passing of the Public Service Commissions are permitted, it will open a back -door for illegal recruitment without limit. In fact this Court has of late, been witnessing a constant violation of the recruitment rules and a scant respect for the constitutional provisions requiring recruitment to the services through the Public Service Commission. It appears that since Supreme Court has in some cases permitted regularisation of the irregularly recruited employees, some Governments and authorities have been increasingly resorting to irregular recruitments. The result has been that the recruitment rules and the Public Service Commissions have been kept in cold storage and candidates dictated by various considerations are being recruited as a matter of course.;