JUDGMENT Pradeep Kant, J.
1. Heard learned counsel for the petitioner Sri O. P. Srivastava, Sri Rajeev Sharma, learned counsel for the opposite party Nos. 1 to 4 and the learned standing counsel. Sri Rajeev Sharma has filed his power on behalf of the opposite party No. 4 also, namely ; the Director of the Institute, who has also been arrayed by name as opposite party No. 6 to the writ petition. The director Professor Anshu Kumar Sinha (opposite party No. 6) despite being served personally on 10.5.2002 has not chosen to file his power independently.
2. The petitioner, who claims himself the senior-most Scientist in Birbal Sahni Institute of Palaeobotany, Lucknow, has initially filed this petition for quashing the notification/ order dated 28.1.2002 by virtue of which opposite party No. 6, namely ; Professor Anshu Kumar Sinha was allowed to hold the charge of the post of Director of the Institute until further orders pending formal approval of the Government of India. Later on a challenge has also been made to the letter dated 22.1.2002 (Annexure-8) by means of which the recommendation of the Search-cum-Selection Committee for the post of Director were approved by the Minister of Science and Technology, Government of India and the case was put up to the Government for formal approval and pending approval the opposite party No. 6, namely ; Professor Anshu Kumar Sinha to continue as Director. The challenge has also been made to the letter dated 9.9.2002, by means of which it was informed that the Central Government has approved the proposal for continuance of the service, of opposite party No. 6 for a period of one year.
3. The petitioner claims that the continuance of the opposite party No. 6 as Director after he reached the age of superannuation on 31.1.2002 is without authority and without any legal sanction. He has put forward his claim for being allowed to officiate as Director. An advertisement was issued on 10.6.2001 for filling of the vacancy, which was to occur on the retirement of the opposite party No. 6 on 31.1.2002. He has further submitted that the regular selection, which was held as per the advertisement issued on 10th June, 2001 (Annexure-4) to the writ petition in which the petitioner had also participated for regular selection, could not be selected because of the illegal and unauthorized recommendation made by the Search-cum-Selection Committee regarding continuance of the opposite party No. 6, for another period of two years, beyond his age of superannuation.
4. The attack made by the petitioner is two-fold, firstly ; it is the case of the petitioner that the extension beyond the period of superannuation, if is to be granted to the officers including the Director of the Institute, that can be done only by the Governing Body, as the Governing Body is the appointing authority under Rules and Regulations 9.1 and, secondly ; in no case any other body can neither recommend for extension of the 'tenure' nor the same can be considered as valid recommendation for the purpose. He has further submitted that there was no recommendation/resolution at all of the Chairman of the Governing Body as per Rules and Regulations 8.3 and the recommendation made by the Search-cum-Selection Committee cannot be treated as recommendation/decision of the Chairman of the Governing Body even if, the Chairman was presiding over the deliberation of the Committee as Chairman of the Search-cum-Selection Committee,
5. In the instant case, according to the petitioner at no point of time, the Governing Body has made any such recommendation/resolution in favour of opposite party No. 6 for granting him extension beyond his superannuation and secondly, it has been urged that the documents on record, namely ; the letter dated 22.1.2002 written by the Secretary, Department of Science and Technology, Government of India, New Delhi, the letter dated 27.1.2002 of the Chairman, the notification dated 28.1.2002 issued by the Registrar of the Institute, the resolution dated 9.9.2002 of the Governing Body and also the letter dated 9.9.2002 by means of which it has been informed that the Central Government has approved the recommendation for extension of 'tenure' of opposite party No. 6 cannot constitute grant of extension as per rules, and that in any case the proceedings for extension have not been taken in the manner in which they ought to have been taken as per the Rules and Regulations.
6. In response to the aforesaid arguments, Sri Rajiv Sharma, learned counsel appearing for the opposite parties has submitted that the continuance of the opposite party No. 6 is perfectly legal and within the norms prescribed for the purpose. He has relied upon the Rules and Regulations 8.3, which reads as follows :
"8.3. In emergent cases, the Chairman may exercise the powers of the Governing Body and appraise the Governing Body of the action taken by him."
7. Learned counsel for the opposite parties relying upon the aforesaid clause submitted that the Chairman was the authority competent to recommend for the extension of the 'tenure' of the opposite party No. 6 beyond the age of superannuation and those recommendations were placed before the Governing Body, as per the requirement and thereafter in due period of time, the necessary approval has also been granted by the Central Government. His further submission is that the Search Committee, which was constituted by the Governing Body, was also vested with the powers of the Selection Committee constituted in pursuance of the advertisement issued earlier, which gave a finding that none of the applicants were found suitable for the post. Dr. A. K. Sinha was also called before the Search-cum-Selection Committee and after having personal discussions with him his case for extension beyond the age of superannuation was considered by the said Search-cum-Selection Committee and recommended as such. The Search-cum-Selection Committee was authority competent to make such recommendation particularly, when the Chairman of the Governing Body himself was present in the said Committee as Chairman of the Search-cum-Selection Committee.
8. Reliance has also been placed by Sri Rajeev Sharma on the terms of the advertisement, which says that 'the selection to the post shall not be necessarily confined to the applicants only'. Elaborating the said phrase, learned counsel for the opposite parties submitted that the Search-cum-Selection Committee was fully competent to consider any name in the Selection Committee, whether such person had actually applied, under the advertisement or not and, therefore, the recommendation made by the Search-cum-Selection Committee for extending the period of service of the opposite party No. 6. cannot be said to be invalid or without authority.
9. Support has also been sought from the Fundamental Rules applicable to the Central Government employees, which provide that the extension of service beyond the age of superannuation under Fundamental Rule 56D, can be granted to the specialist in medical or scientific fields upto the age of sixty two years, if such extension is in 'public interest' and 'the grounds for such extension are recorded in writing'. Placing reliance upon the aforesaid rule, learned counsel for the opposite parties submitted that the employees of the Birbal Sahni Institute of Palaeobotany are governed by the rules applicable to the Central Government employees including the Fundamental Rule 56D and, therefore, the extension can very well be granted, which has rightly been granted to the opposite party No. 6 for a period of one year.
10. It has further been urged that the Rules and Regulations, which are admittedly applicable in the present case, provide in Staff Rule 33.1 'that the grant of extension of service-employment to the employees of the Institute beyond the age of superannuation will be regulated in accordance with the instructions issued by the Government of India in this regard from time to time' and accordingly, the decision has been taken, as aforesaid.
11. The rules and regulations applicable to the staff of the Birbal Sahni Institute of Palaeobotany, which has been approved by the Department of Science and Technology. Government of India, provide in Clause 8.3 the functions of the Chairman 'in emergent cases' and lays down that in emergent cases, the Chairman may exercise the powers of the Governing Body and apprise the Governing Body of the action taken by him'.
12. Rules and Regulations 9.1, which is placed below reads, as under :
"The Director of the Institute shall be appointed by the Governing Body with the approval of the Government of India. The tenure of the appointment of the Director shall ordinarily be for a period of five years or till the date of superannuation, whichever is earlier. He shall hold office on such terms and conditions as may be decided by the Governing Body with the approval of Government of India from time to time."
13. It is thus undisputed that the appointing authority of the Director is the Governing Body and not the Chairman. The appointment of the Director is to be made by the Governing Body with the approval of the Government of India, thus the Government of India is the approving authority, but not the appointing authority. The 'tenure' of the appointment on the post of Director shall ordinarily be for a period of five years or till the " date of superannuation, whichever is earlier. The Director shall hold office on such terms and conditions as may be decided by the Government Body with the approval of the Government of India from time to time. The Governing Body, thus being appointing authority and competent to lay, the terms and conditions for the post of Director, is the authority competent to consider the question of extension of the 'tenure' of the Director beyond the age of superannuation. Of course, thereafter the approval of the Government of India would be required in either contingency, but the approving authority, cannot be treated as the appointing authority.
14. With the aforementioned settled and legal position with respect to the authority competent, who can grant extension in the service on the post of Director in the Institute beyond the age of superannuation, we would consider the manner in which the present incumbent, namely ; the opposite party No. 6 has been allowed to continue after reaching the age of superannuation. The opposite party No. G was to retire on 31.1.2002, but before the said date could be reached, it appears that a letter was issued, which is impugned in the present petition dated 22.1.2002, addressed to the Chairman of the Institute by the Secretary, Department of Science and Technology, Government of India, mentioning therein that the recommendation of Search-cum-Selection Committee for the post of Director, Birbal Sahni Institute of Palaeobotany has been approved by the Hon'ble Minister (S. and T.) and the case is being put up before the Government for formal approval. The letter further indicates that 'pending receipt of the same, you may request the present incumbent, Professor Anshu Kumar Sinha, to continue to hold charge of the Director, B.S.I.P. until further orders.
15. The Secretary, Department of Science and Technology, Government of India issued a fax message dated 22.1.2002, and in consequence of the aforesaid fax message, the Chairman sent a letter by speed post to the opposite party No. 6 requesting him to continue to hold the charge of the Director of B.S.I.P. until further orders. Subsequently, the notification was issued by the Registrar of B.S.I.P. on 28.1.2002 mentioning therein that in pursuance of the fax message, received from the Secretary, Department of Science and Technology, Government of India dated 22.1.2002, the Chairman has directed that pending the formal approval of the Government of India. Professor Anshu Kumar Sinha, the present incumbent of the post of Director, B.S.I.P. will continue to hold the charge until further orders.
16. The aforesaid fax message of the Secretary, Department of Science and Technology, Government of India, the letter of request sent to the opposite party No. 6 by the Chairman as well as the notification issued by the Registrar, B.S.I.P. do not indicate anywhere that at any point of time, the Governing Body considered the matter of extension of service of the opposite party No. 6 beyond the age of superannuation and made any recommendation/resolution to the Government of India for approval.
17. To the contrary, the aforesaid letters and notification do reveal that it was on the recommendation of the Search-cum-Selection Committee the opposite party No. 6 was requested to continue to hold the charge of the office of the Director pending approval of the Government of India, meaning thereby ; that on the date, when the opposite party No. 6 was allowed to continue as Director, B.S.I.P. beyond the age of superannuation, there was neither any resolution nor the recommendation of the Governing Body nor any approval of the Government of India, but there was only a letter written by the Secretary, Department of Science and Technology, who informed that the Hon'ble Minister of Science and Technology has approved the said recommendation of the Search-cum-Selection Committee and the matter later on would be considered by the Government of India. The incumbent opposite party No. 6 was thus allowed to continue after he reached the age of superannuation, in the absence of the approval of the Government of India and also without any resolution of the Governing Body, making any such recommendation. In the meantime, the present writ petition was filed sometime in February, 2002 and during the pendency of the writ petition, it has been informed by means of letter dated 27.8.2002 written by the Director, Ministry of Science and Technology, Government of India to the Chairman of the Institute that the proposal for the grant of extension of service of Professor A. K. Sinha, Director, B.S.I.P., Lucknow beyond 31.1.2002 has been approved by the Central Government for a period of one year only for the present. Later on a letter dated 9.9.2002 has been issued to the opposite party No. 6, apparently in pursuance of the resolution/ recommendation of the same date of the Governing Body, informing about his continuance as Director, in the given pay-scale and also approval granted by the Central Government for a period of one year.
18. The argument of the learned counsel for the opposite parties Sri Rajeev Sharma that the Search-cum-Selection Committee was fully competent to consider the name of any candidate, though he may not be an applicant against the advertisement and, therefore, the case of the opposite party No. 6 could have been very well considered and was rightly considered by the Search-cum-Selection Committee, for extension of his services, is to be tested in the light of the terms of the advertisement and the scope of power of the Search-cum-Selection Committee.
19. If the advertisement has been issued for a particular post giving the eligibility criteria and such other conditions, which may be relevant for an applicant for applying under the said advertisement, the said conditions have to be adhered to, and the Selection Committee does not have any power to deviate from the same. The Selection Committee can neither of its own, extend the field of eligibility nor can introduce any new criteria or conditions for selection. The Search-cum-Selection Committee, is constituted for the purpose of shortlisting the eligible candidates, from amongst whom, the Selection Committee or the authority competent has to make its choice. Even without entering into the question as to whether the recommendation of the Search-cum-Selection Committee has been approved by the Government of India and the Search-cum-Selection Committee was the authority competent to recommend the case of the incumbent for extension beyond the age of superannuation or not, at this stage, the argument of the learned counsel for the opposite parties regarding the interpretation of the clause 'the selection to the post shall not be necessarily confined to the applicants only' has to be rejected on the grounds, which are specified below :
"'The selection to the post shall not be necessarily confined to applicants only' would necessarily means that whether the candidate had applied against the advertisement or not, but in both the cases, the candidates must be eligible under the terms of the advertisement. If a candidate is not eligible under the terms of the advertisement, he cannot be considered for appointment for the post advertised. The advertisement in question clearly provides for fresh appointment/direct recruitment and lays down the qualification, experience and also the age limit. The age limit is below 55 years (as on 31 January, 2002), which was relaxable in exceptional cases. The next clause under the heading of 'TENURE' in the advertisement prescribed the term 'ordinarily for a period of five years or till the date of superannuation, whichever is earlier'. The prescription of the age limit and the prescription of the tenure made, the opposite party No. 6 ineligible for being considered in terms of the aforesaid advertisement by Search-cum-Selection Committee. The prescription of the tenure was in consonance with the tenure prescribed under the Rules and Regulations 9.1, which very specifically says that the tenure of the Director would be upto five years or till the date of superannuation, whichever is earlier. Therefore, once a person has reached the age of superannuation working on the post of Director, he cannot be selected afresh by direct recruitment under the present advertisement nor he would be eligible for consideration of his appointment in pursuance of the said advertisement. It also cannot be lost sight of that the vacancy for which the selection was to be held under the advertisement, was the vacancy, which was to be caused because of the superannuation of the present incumbent (opposite party No. 6) and, therefore, under the said advertisement, his candidature for the said vacancy could not have been considered. It is a different matter that his case for extension beyond the age of superannuation could have been considered in accordance with the relevant provisions of the rules, which were applicable in the matter."
20. An attempt has been made by the learned counsel for the opposite parties to justify the extension on the basis of recommendation made by Search-cum-Selection Committee in favour of the opposite party No. 6, but such an argument, could not be supported by any rule or regulation and atleast no such rules or regulations have been placed before us by either of the parties to establish that Search-cum-Selection Committee was having any such power to make such a recommendation for extension of service beyond the age of superannuation.
21. It would also be significant to take note of the fact that the Search-cum-Selection Committee was constituted by the Governing Body, only for the purpose of making selection as per the advertisement, and did not give any authority to the committee, to consider the question regarding the extension in service being granted to the present incumbent.
22. Next argument of the learned counsel for the opposite parties, that the Chairman was competent to make recommendation in emergent situation under the Rules and Regulations 8.3, is also of no assistance to him. The submission is that since the Search-cum-Selection Committee found that the number of candidates, who were empanelled, out of them, none were found suitable, therefore, keeping in mind that the post of Director was to fall vacant on 31.1.2002, the recommendation was made for extension of the services of the opposite party No. 6 for two years and, that while doing so the Chairman also signed the minutes of the Search-cum-Selection Committee meeting and, therefore, the powers can very well be said to have been exercised by the Chairman under Rules and Regulations 8.3.
23. We have taken note of the fact that the Search-cum-Selection Committee was not authorized nor was empowered even by Governing Body to consider the case of extension of the services of the present incumbent nor it can be said that there was any such emergent situation because in the absence of the regular Director, the functioning of the post of Director could have been given to the next senior-most Scientist as per rules, or any appropriate arrangement could have been made as per rules.
24. By observing as above, we do not mean to say that it was necessarily incumbent upon the Chairman to permit the senior-most Scientist to officiate and for that reason not to make any regular appointment, but it was incumbent upon the Chairman that in case he was of the view that any emergency exists, in which he has to make a recommendation for extension of the services of the present incumbent, he could have done so, independently under the aforesaid clause of Rules and Regulations 8.3. It has also been brought on record that the Governing Body was functioning at that time and was in existence. If the Governing Body was functioning and was also available, then the question regarding extension on the post of Director of an incumbent, who was to reach the age of superannuation, ought to have been considered by the Governing Body. No reason has been given, as to why the matter was not placed before the Governing Body.
25. Learned counsel for the opposite parties informed the Court that under the rules, the Governing Body, is to meet mandatorily, twice in a year, but in between the meeting can be called by giving prescribed notice or even by circulation. No such meeting for the purpose was called for.
26. Apart from the above, we have been taken through the minutes of the Search-cum-Selection Committee meeting dated 18.1.2002, which reveals that the Chairman of the Governing Body was the Chairman of the Selection-cum-Search Committee besides four other members. The minutes also disclose that Professor A, K. Sinha was also called for personal discussions. It could not be clarified by the learned counsel for the opposite parties that when the Search-cum-Selection Committee was convened for the purpose of making selection out of the short-listed candidates, then under what presumption Professor A. K. Sinha was called for personal discussions. The Search-cum-Selection Committee could not have presumed before hand that out of twelve candidates, who have been short listed, none would be found suitable, so it has the compulsion to consider the case of extension of service beyond the age of superannuation of the opposite party No. 6. The minutes of the said meeting also do not disclose any 'public interest' in giving this extension to Professor A. K. Sinha nor it gives any ground for such extension in writing. The paragraph 4 of the minutes of Search-cum-Selection Committee meeting is quoted below :
"The Search-cum-Selection Committee, after the personal discussions with the candidates present and perusing the records of those candidates who could not come for personal discussion, recommends that the term of appointment of Professor Anshu Kumar Sinha may be extended for another two years as the Director of the Birbal Sahni Institute of Palaeobotany, Lucknow."
27. A bare glance of the aforesaid recommendation makes it wholly short of the conditions prescribed under Fundamental Rule 56D for granting extension. While making a recommendation for extension of the term of the present incumbent beyond his age of superannuation, 'public interest' and the reasons for such extension ought to have been mentioned by the authority or the body, which was recommending for such extension, even if such a recommendation could have been made, though we have already found that the Search-cum-Selection Committee was having no such authority to make any such recommendation.
28. The arguments of the learned counsel for the opposite parties that this recommendation was made under the signature of Professor Ashok Sahni, who was also the Chairman of the Governing Body and in the presence of the Secretary, Department of Science and Technology, Government of India Professor V. S. Ramamurthy, therefore, the said recommendation, would be deemed to have been made under Clause 8.3 of the Rules and Regulations, can also not be accepted, for the reasons, firstly ; Professor Ashok Sahni was present in the meeting as the Chairman of the Search-cum-Selection Committee not as the Chairman of the Governing Body of the Institute. The office of the Chairman of the Search-cum-Selection Committee was given to him by virtue of a resolution passed by the Governing Body dated 9.9.2001 and the status of Professor Ashok Sahni as the Chairman of the Governing Body would not be available to him as the Chairman of the Search-cum-Selection Committee, where he was acting as Chairman of the Search-cum-Selection Committee by virtue of the constitution of the Selection Committee made by the Governing Body and, secondly ; the presence of the Secretary, department of Science and Technology, Government of India would not mean that it was on the basis of the consent or approval granted by the Central Government. The recommendation so made is not signed only by the Chairman Professor Ashok Sahni or by the Secretary, Department of Science and Technology, Government of India, but have been signed by all the members of the Search-cum-Selection Committee. The recommendation, thus so made has rightly been termed as the recommendation of the Search-cum-Selection Committee even by the Secretary, Department of Science and Technology, Government of India in his letter dated 22.1.2002 by virtue of which the present incumbent was allowed to function beyond the age of superannuation as the Director, B.S.I.P.
29. Learned counsel for the opposite parties Sri Rajeev Sharma also drew the attention of the Court to the proceedings of the meeting dated September 9, 2001 of the Governing Body and also dated 18th March, 2002 and September 9, 2002. These proceedings of the Governing Body have been placed for indicating that the Governing Body was apprised of the extension of the services of the opposite party No. 6 and the Governing Body approved the same though at a large point of time. The resolution/decision taken in the meeting of the Governing Body on September 9, 2001, only constituted the Selection Committee and resolved that the Selection Committee may function as Search Committee also for the post of Director. In the meeting dated 18.3.2002, on Item No. 3, the status report on the action taken on the proceedings of the last meeting of the Governing Body were considered. It says that on Item No. 11, the Chairman, G. B. reported the continuance of the present Director till further orders on the basis of Secretary, D.S.T.'s letter D.O. No. D.S.T./Secy./41/2002 dated January 22, 2002. Till this stage, the Governing Body admittedly had not considered the extension of the services of the opposite party No. 6 beyond 31.1.2002 nor the Chairman appears to have apprised the Governing Body regarding proposal of extension sent by him to the Government of India. The Chairman obviously could not have done so as no such recommendation under the Rules and Regulations 8.3 was made by him. This resolution does not say that the Governing Body has either approved the continuance of the opposite party No. 6 or has taken a decision for extension of the services beyond the age of superannuation. Last comes the resolution dated 9.9.2002, in which the information has been sent by the Secretary, Department of Science and Technology, Government of India regarding the approval granted to the opposite party No. 6 for extension for a period of one year beyond the age of superannuation w.e.f. 1.2.2002 to 31.1.2003.
30. The question for consideration would be that there being no resolution/ recommendation or decision of the Governing Body for grant of extension of the services of the opposite party No. 6 beyond the age of superannuation, then which resolution/recommendation was considered by the Government of India for granting the approval. If the recommendation of the Search-cum-Selection Committee are treated, as the recommendation/resolution of the Chairman, Governing Body as per Clause 8.3 of the Rules and Regulations, it would be bringing the recommendation of Search-cum-Selection Committee within the ambit of the Rules and Regulations 8.3, which would be reading the aforesaid provision beyond its scope. The Chairman has not made any recommendation/resolution of his own in exercise of the powers under Clause 8.3 and the recommendation made by the Search-cum-Selection Committee, could not be treated as any such recommendation, in which committee, the Chairman was only a member and had presided over the Search-cum-Selection Committee as its Chairman. The proceedings of the said committee reflected the deliberations and mind of the committee and not that of the Chairman of the Governing Body as an independent authority under Clause 8.3.
31. The minutes of the Search-cum-Selection Committee meeting also did not indicate that the recommendation for extension of the service of the opposite party No. 6 were being made under Clause 8.3, though in the counter-affidavit, the Chairman has stated that this recommendation was made by him under Clause 8.3. The averments made in the counter-affidavit could not be supported by the minutes of the meeting of the Search cum-Selection Committee dated 18.1.2002. The recommendation made by the Search-cum-Selection Committee have to be scrutinized on the basis of the recommendation made and they cannot be defended by placing new facts in the counter-affidavit. Besides this, it could not be explained by the learned counsel for the opposite parties that under what circumstances and authority the recommendation made by the Search-cum-Selection Committee, as a whole, where all the members, who participated in the meeting along with the Chairman of the Search-cum-Selection Committee have signed, can be treated as a recommendation/resolution of the Chairman of the Governing Body in terms of Clause 8.3 of the Rules and Regulations. The recommendation so made, therefore, cannot be protected under the provisions of the aforesaid Clause 8.3.
32. Thus, apart from the recommendation made by the Search-cum-Selection Committee, there was no recommendation/resolution of the Governing Body nor of the Chairman, Governing Body.
33. One more aspect of the matter, which deserves consideration, is that as per the defence taken by the learned counsel for the opposite parties, the extension could be granted in terms of the provisions of Fundamental Rule 56D upto the age of sixty two years, but that has to be done by mentioning the conditions laid therein. Fundamental Rule 56D gives the power for extension of service tenure beyond the age of superannuation to specialist in medical or scientific field upto the age of sixty two years, but it imposes two conditions for exercising of such power (i) such extension should be in public interest and (ii) the ground for such extension should be recorded in writing.
34. We have already observed that in the case in hand ; the aforesaid two conditions are absolutely missing. The opposite party No. 6 has been allowed to continue beyond the age of superannuation only on the basis of the fax message sent by the Secretary, Department of Science and Technology. Government of India dated 22.1.2002, which said that the recommendation of Search-cum-Selection Committee for the post of Director has been approved by the Hon'ble Minister (Science and Technology), Government of India and the case has been put before the Government for formal approval. The letter further said that 'pending receipt of the same, you may request the present incumbent, Professor Anshu Kumar Sinha, to continue to hold charge of the Director, B.S.I.P. until further orders'. The letter further required 'the Chairman to make a request to the present incumbent Professor Anshu Kumar Sinha to hold the charge of the Director pending receipt of the formal approval'. On the strength of the aforesaid letter of the Secretary, Department of Science and Technology. Government of India, the Chairman made necessary request and the Registrar of the Institute issued notification allowing the present incumbent to hold the charge of the post of the Director until further orders.
35. It may be taken note of that even in the recommendation made by the Search-cum-Selection Committee, there is no mention anywhere that the extension to the opposite party No. 6 in his service tenure is granted in public interest nor any such public interest has been pleaded or proved by the opposite parties nor the grounds for granting such extension have been recorded in writing. Thus, according to the requirement of the Fundamental Rule 56D, the extension has never been granted to the opposite party No. 6 as per conditions laid down therein.
36. Learned counsel for the petitioner Sri O. P. Srivastava in support of his submission that, if the Rules, Regulations or Bylaws or any other law prescribed a particular mode for performing a duty or for taking any action or for doing any work, then the same has to be done in that manner prescribed and not otherwise relied upon the case of Babu Varghese and Ors. v. Bar Council of Kerala and Ors., (1999) 3 SCC 422. The Apex Court in this case observed as follows :
"It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all. The origin of this rule is traceable to the decision in Taylor v. Taylor, which was followed by Lord Roche in Nazir Ahmad v. King Emperor who stated as under :
'Where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all'.
This rule has since been approved by this Court in Rao Shit) Bahadur Singh v. State of U. P. and again in Deep Chand v. State of Rajasthan. These cases were considered by a three-Judge Bench of this Court in State of U. P. v. Singhara Singh and the rule laid down in Nazir Ahmad case was again upheld. This rule has since been applied to the exercise of jurisdiction by courts and has also been recognised as a solitary principle of administrative law."
37. In the case of A.K. Roy and Anr. v. State of Punjab and Ors., 1987 (1) AWC 18 (SC) : (1986) 4 SCC 326, wherein the Supreme Court reiterated that 'whether a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. Other modes of performance are necessarily forbidden'.
38. We find merit in the aforesaid submission of the learned counsel for the petitioner that in view of the specific provisions of the Rules, Regulations and the Bylaws, the extension on the post of Director, B.S.I.P. could have been granted only in the manner prescribed and not otherwise.
39. In view of our specific findings, that no recommendation/resolution was made by the Chairman of the Governing Body for extension of service tenure of the opposite party No. 6 in terms of Clause 8.3, we further hold that in the absence of any resolution or recommendation of the Governing Body, which was the only competent authority to pass any such resolution, there was no material before the Central Government to accord approval. The approval so granted by the Central Government regarding the extension of service tenure of the opposite party No. 6, is thus of no assistance and is of no meaning. The extension of the opposite party No. 6 can also not be protected on the ground that the Government of India has accorded the approval, which information was considered and approved by the Governing Body in a later resolution dated 9.9.2002. The Governing Body was not the authority to grant approval or to approve the action of the Central Government, but was the authority to initiate the matter regarding extension of service tenure beyond the age of superannuation and if convinced and satisfied under the conditions laid down in Fundamental Rule 56D, could have made recommendation/resolution for extension of service tenure, but no such exercise was done by the Governing Body and, therefore, the recommendation/resolution of the Governing Body expressing the approval to the approval granted by the Central Government, cannot be taken to mean any recommendation/ resolution of the Governing Body. The Governing Body was the appointing authority and the authority to make a recommendation/ resolution for extension of service tenure beyond the age of superannuation and not the approving authority. The role of appointing authority cannot be played by the approving authority nor vice-a-versa can happen. Once the approval was granted by the Central Government to the recommendation made by Search-cum-Selection Committee, apparently there remained little for the Governing Body for disapproving the approval granted by the Central Government.
40. It could also not be explained as to under which authority or power the Governing Body approved the approval granted by the Central Government regarding extension of the tenure of the opposite party No. 6 beyond 31.1.2002.
41. Before parting, apposite to mention is that though the advertisement for making the regular selection was issued on 20.6.2001 and the present incumbent was to retire on reaching the age of superannuation on 31.1.2002, but the Governing Body did not find it appropriate to get the selection process concluded expeditiously and promptly. The candidates were short-listed on 11.1.2002 and the meeting for the purpose of making selection was held only on 18.1.2002. Although there was no recommendation/ resolution of the Governing Body for extending the term of the present incumbent beyond 31.1.2002, but suddenly soon after the meeting, he was allowed to continue beyond 31.1.2002, only in pursuance of the letter written by the Secretary, Department of Science and Technology, Government of India dated 22.1.2002, who under no rule was competent to make any such request. The recommendation of the Search-cum-Selection Committee, which was signed by all the members, cannot be treated as a recommendation/resolution of the Chairman of the Governing Body.
42. We would further like to observe that the emergent situation as envisaged in Clause 8.3, would mean a situation, where an emergent action is required and it is not possible for the Governing Body to consider the matter either for shortage of time or because of the imminent nature of the action, which cannot wait till such time, but in no case, the said provision can be used by the Chairman for circumventing the rightful authority of the Governing Body, nor it can be used as a mode and device for imposing his own decision. The provisions for apprising the decision taken by the Chairman in emergent situation to the Governing Body, has been made for putting the check upon the action of the Chairman, as on being informed about the action taken by the Chairman, the Governing Body may either approve it or disapprove it.
43. However, in the instant case, at no point of time there was any recommendation/decision of the Chairman of the Governing Body under Clause 8.3 and, since there is no such recommendation/decision, therefore, it can be safely presumed that the Governing Body did not have any occasion to consider the question regarding the extension of service tenure of the opposite party No. 6 beyond 31.1.2002, particularly when, the Governing Body, itself, admittedly had not made any such recommendation/resolution.
44. For the reasons stated above, we find that there was no valid extension much less any extension of service in accordance with the rules the regulation for the service tenure of the opposite party No. 6 beyond the age of superannuation i.e., 31.1.2002. We further hold that the letter dated 22.1.2002 issued by the Secretary, Department of Science and Technology, Government of India, the letter dated 27.1.2002 issued by the Chairman, Governing Body, the notification dated 28.1.2002, issued by the Registrar of the Institute and the resolution of the Governing Body dated 9.9.2002, giving approval to the approval of the Central Government, are nullity in law and consequently, we quash the letter of extension of service issued to the opposite party No. 6 by the Chairman, Governing Body dated September 9, 2002. Since we have been informed that the opposite party No. 6 has been allowed to continue only for a period of one year, which would come to an end on 31.1.2003, we provide that he may be allowed to look after the work of the post of Director, B.S.I.P. in purely stop-gap-arrangement till 31.1.2003 for which period he shall be paid his salary, etc. The monetary benefits, which have already been made available to the opposite party No. 6 after 3.1.1.2002, shall not be affected by this order.
45. The writ petition is allowed. Costs easy.