JUDGMENT 1. - This is a writ petition under Article 226 of the Constitution of India by Mrs. Priti Prabba Goel for an appropriate writ, order or direction quashing the appointment of Dr. C. P. Singh as Professor and Head of the Hindi Department, as Doan of the Faculty of Arts and member of the Syndicate in the University of Jodhpur. The material fact& leading to the writ petition are these. 2. The respondent No. 2 in the writ petition is a body corporate by the name of "The University of Jodhpur" (hereinafter called the University) established by the Jodhpur University Act, 1962 (Act No. 17 of 1962 - hereinafter called the Act), which cause into force on the 12th July 1962. Mrs. Priti Prabba Coel, the petitioner, got the degree of blaster of Arts in Sanskrit from the Agra University in the year 1958 in Bret division. She topped the list of successful candidates appearing at the said examination. She was appointed as a full time temporary lecturer in Sanskrit by the order dated 23.7.1988. At the time of filing the writ petition on 19.12.1966, she was working as a part time lecturer and from. 31.8.1967 she is working as a junior lecturer in the University. The petitioner has stated that, being an employee of the University, she is interested in its affairs. 3. Under Section 4 (7) of the Act, the University has the power to appoint or to recognise persons as professors, readers or lecturers or otherwise as teachers of the University. "Tea oher" has been defined in Section. 2 (f) of the Ac It includes professors, readers, lecturers, and other persons imparting instruction and guiding and conducting research in the University or in any college or institution. Section 12 of the Act, inter alia, lays down that the Vice. Chancellor shall be the principal executive and academic officer of the University and S. 14 (i) enumerates the authorities of the University which ass as stated below (i) the Senate, (u) the Syndicate, (iii) the Academic Council, (iv) the Finance Committee. (v) the Faculties, (vi) the Committees of Courses and Stu. dies, and (vii) such other authorities as may be declared by the Statutes to be the authorities of the University. (v) the Faculties, (vi) the Committees of Courses and Stu. dies, and (vii) such other authorities as may be declared by the Statutes to be the authorities of the University. Section 15 lays down that the Senate shall be the Supreme authority of the University and shall have the power to review the acts of the Syndicate and the Academia Council and shall exercise all the powers of the University not otherwise provided by the Act or the Statutes. The Syndicate is the executive body of the University. The constitution of the Senate and the Syndicate and the terms of office of its members other than ex officio members are prescribed by the Statutes. The relevant provisions of the Act and Statutes regarding the selection and appointment of teachers in the University with which we are concerned in this case are as follows : Section 2 -In this Act and in the Statutes, unless the subject or context otherwise requires : (f) Teacher includes Professors, Readers, Lecturers and the persons imparting instructions and guiling and conducting research in the University or in any college or institution. Section 4 -The University shall have the following powers namely : (7) To appoint or recognise persons as Professors, Readers or Lecturers or otherwise as teachers of the University. Section 12.-Powers and authorities of the Vice-Chancellor : 12(5) In any emergency, when in the opinion of the Vice-Chancellor, immediate action is required, the Vice-Chancellor shall take such action as he may deem necessary and shall at the earliest opportunity report the action taken to the officer, authority or body who or which in the ordinary course would have dealt with the matter but nothing in this sub-section shall be deemed to empower the Vice. Chancellor to incur any expenditure not duly authorised and provided for in the budget. Statute 5 (2).- Subject to the Provisions of the Act, the Statutes and the Ordinances, the Syndicate shall in addition to all other powers vested in it, have the following powers namely : (i) To appoint from time to time the Registrar, Librarian, Principals of colleges and Ilea& of Institutions established by the University and such Professors, Readers, Lecturers and other members of the teaching staff as may be necessary on the recommendation of the Selection Committee Constituted for the purpose. Statute 5 (2).- Subject to the Provisions of the Act, the Statutes and the Ordinances, the Syndicate shall in addition to all other powers vested in it, have the following powers namely : Statute 18 (N. - No person shall be appointed or recognised as a teacher of the University except on the recommendation of the Selection ,Committee constituted for the purpose. Statute 19 (5).-The Selection Committee for any appointment specified in clause (r) of the table below shall consist of the Vice. Chancellor, an Educationist nominated by the Chancellor and the persons specified in the corresponding entry in column (2) of the said table. 1. 2. Professor or Reader. (i) The Dean of Faculty. (ii) The Heal of the Department concerned, if he is a Professor. (iii) Two experts in the subject not connected with the University, nominated by the Vice Chancellor. Lecturer (i) The Dean of the Faculty. (ii) The head of the Department concerned. (iii) Two experts in the subject not connected with the University nominated by the Vice Chancellor. Statute 19 (3) The meeting of the Selection Committee shall be convened by the Vice Chancellor. 19 (4) The Selection Committee shall consider and present to the Syndicate recommendations as to the appointment referred to it. If the Syndicate is unable to accept the recommendations made by the committee, it shall record its reasons and submit the case to the Chancellor for final orders. Dr. 0. P. Singh, respondent No. 1, was appointed as Reader in Hindi in the Baroda University in July 1958 and was appointed as Professor and Head of the Department of Hindi in that University in 1959. A committee was appoint. ed by the Vice Chancellor of that University to enquire and report on the working of the Hindi Department. As a result of the finding of this committee Dr. 0. P. Singh was retired prematurely on completion of the age of 55 years with effect from 30.6.65. The age of superannuaticn in that University is 60 years. The fact of the premature retirement of Dr. C. P. Singh from the Baroda University was suppressed and he was appointed as Professor of Hindi in the University of Jodhpur by order of the Vice Chancellor dated 2.6.65 without following the usual procedure for such appointment prescribed by the Statutes of the University. This appointment was con- firmed by the Syndicate on 81-8.66. 4. C. P. Singh from the Baroda University was suppressed and he was appointed as Professor of Hindi in the University of Jodhpur by order of the Vice Chancellor dated 2.6.65 without following the usual procedure for such appointment prescribed by the Statutes of the University. This appointment was con- firmed by the Syndicate on 81-8.66. 4. The petitioner's case is that one of the essential pre-requisites for the appointment of a teacher is selection by the Selection Committee to be constituted under Statute 19 (1). The Syndicate can act only on the recommendation of the Selection Committee. Unless there is a recommendation by the duly constituted Selection Committee the Syndicate is incompetent and has no power to appoint any one as a teacher in the University. 5. Statute 5 (2) gives the power to the Syndicate to appoint from time to time professors, readers, lecturers and other officers mentioned in it as may be necessary on the recommendation of the Selection Committee constituted for the purpose. Apart from Statute 5 (2), which lays down that the Syndicate shall make appointment of teachers on the recommendation of the Selection Committee constituted for the purpose Statute 18 (5) prohibits appointment or recognition as a teacher of the University except on the recommendation of a Selection Committee constituted for the purpose. The petitioner's stand is that Dr. C. P. Singh, respondent No. 1 was appointed as Professor and Head of the Hindi Department by the order dated 2.8.65 of Dr. Ram Behari the then Vice Chancellor of the University, without any recommendation of the Selection Committee, and, that being so, his appointment was in clear violation of Statutes 5, 18 and 19 and was thus void. It may be stated here that Dr. Ram Behari resigned from the poet of Vice Chancellor. His resignation was accepted on 30.6.1966 but he continued upto the end of July 1966. Dr. M. L. Roonwal, the present Vice Chancellor joined on 3.8.1966. 6. The petitioner has further stated that the respondent No. 1 was appointed as Professor of Hindi in the University for a period of one year on probation by the then Vice Chancellor of the University in exercise of the powers conferred on him under S. 12 (5) of the Act, which he could not do as there was no emergency. The petitioner has further stated that the respondent No. 1 was appointed as Professor of Hindi in the University for a period of one year on probation by the then Vice Chancellor of the University in exercise of the powers conferred on him under S. 12 (5) of the Act, which he could not do as there was no emergency. The normal activity or requirement of the University, according to the petitioner, could by no stretch of imagination fall under the powers of the Vice Chancellor as envisaged by S. 12 (5) of the Act. Consequently, the Vice-Chancellor had no jurisdiction to make the appointment of respondent No. 1 as Professor of Hindi. Such an appointment should have been made through the machinery provided by Statute 19 that is, by a Selection Committee constituted for the purpose. There was no emergency so as to invoke section 12 (5) of the Act by the Vice Chancellor. 7. It is not in controversy that there were two readers, 18 lecturers and one research scholar in the Department of Hindi in the year 1965 as mentioned in the Audichya Committee report. It is also not deputed that according to the standing orders the teachers are expected to teach every week for the number of periods mentioned in this report and that there were more teachers in the Hindi Department than was warranted by the workload. The recommendations made in the report were not accepted by the University, but the facts and figures given in it with regard to the Hindi Department were not disputed. Dr. R. S. Shukla "Rasal" was the Professor and Head of the Department of Hindi. He retired on 12-8-65 and banded over charge to Dr. Motilal Gupta, the seniormost reader of the Department, who was Ph. D. D. Litt, M. A. in three subjects and had put in 29 years of service. There was adequate staff in Hindi Department to run it till a professor could be appointed by the method of selection prescribed by law. The petitioner has alleged that the appointment of Dr. C. P. Singh was not motivated by any teaching requirements of the University, but was on account of extraneous considerations to favour and oblige him under the garb and cloak of emergency, which was an abuse of power under section 12 (5) of the Act by the Vice-Chancellor. The petitioner has alleged that the appointment of Dr. C. P. Singh was not motivated by any teaching requirements of the University, but was on account of extraneous considerations to favour and oblige him under the garb and cloak of emergency, which was an abuse of power under section 12 (5) of the Act by the Vice-Chancellor. The initial appointment of the respondent No. 1 by the Vice Chancellor was void, and, when that was so, his confirmation by the Syndicate on 31.8.1966 was also void. 8. The petitioner has stated that Dr. Singh was retired even earlier than the age of 55 years. The date of birth of Dr. C. P. Singh ai given in Jodhpur University Gazette is 18 10.1910. He completed the age of 55 years on 17.10.1965, but after his compulsory retirement from Baroda University, the respondent No. 1 was appointed as professor of Hindi on 2-8-1965 and he joined the University on 14.8.1965, i. e. before he completed the age of 55 years. It was, therefore, not correct that Dr. C. P. Singh retired from the Baroda University on reaching the age of 55 years. It is urged that the very fact that Dr. Singh was retired at the age of 55 years or earlier even though the age of retirement was 60 yeah went to show that be was under some cloud. The petitioner has also alleged that there was misrepresentation on the part of Dr. Singh in securing his appointment as would appear from his letter dated 2.8.1965 addressed to the Registrar of the University which shows that it was written from Baroda whereas. in fact, it was written from Jodhpur. Further, it shows that he was Professor and Head of the Department of Hindi in the Baroda University, which he was not. when he wrote the letter. He has also stated that his present emoluments were Rs. 1,050/. per mensem, which was also false to his knowledge as he was out of employment at that time. 9. In his petition, the petitioner has given Instances of favouritism and nepotism by the respondent No. 1 after his appointment as Professor in the University, but we need not refer to them as they are not necessary for the decision of the writ petition. The petitioner has prated that the appointment of Dr. 9. In his petition, the petitioner has given Instances of favouritism and nepotism by the respondent No. 1 after his appointment as Professor in the University, but we need not refer to them as they are not necessary for the decision of the writ petition. The petitioner has prated that the appointment of Dr. C. P. Singh as Head of the Hindi Department and to the allied offices held by him on that account be quashed. 10. In its reply, the University has stated that the petitioner was a full time temporary lecturer in Sanskrit, that she could not be selected for the poet of a lecturer in Sanskrit and that thereafter she was kept as a part time lecturer and then as junior lecturer in the University. It is admitted that no Se so. %ion Committee was appointed for the Selection of Professor of Hindi as required under Statute 5 (2), Statute 18 (5) and Statute 19 (1) and that Dr. C. P. Singh was appointed without there being any selection by the Selection Committee. The University has Bought to justify non-observance of those Statutes on the ground that ordinarily under Statute 18 (5), the recommendation is made by the Selection Committee, but this Statute is not mandatory. It is only directory. (See para. 7 of the reply by the University). It has been stated that under S. 12 (5) of the Act, the Vice-Chancellor can make an appointment to meet an emergency. The emergency, on which reliance has been placed on behalf of the University is contained in Paragraph No. 8 of its reply, the relevant portion of which reads: "Prior to the appointment of Dr. O. P. Singh. Dr. B. S. Shukla 'Basal' was Professor and Head of Hindi Department as well as of the Sanskrit Department. Papers for the extension of the term of Dr. Basal were pending and it was expected that be would continue as such as Head of Hindi and Sankskrit Departments. But the Syndicate in its meeting held on 31.7.1965 decided not to extend the term of Dr. basal and thus in emergency was created to appoint a Professor and Head of Hindi Department because such a post,could not be kept vacant. In the ordinary course, if a Selection Committee had been constituted and the ordinary procedure of calling applications, interviews and the recommendations had been followed. basal and thus in emergency was created to appoint a Professor and Head of Hindi Department because such a post,could not be kept vacant. In the ordinary course, if a Selection Committee had been constituted and the ordinary procedure of calling applications, interviews and the recommendations had been followed. it would have firstly taken a very long time and secondly, qualified persons, who were already professors and beads of the Department in other Universities would not have liked to make applications and to appear before the Selection Committee." Reliance has also been placed on the relevant resolutions dated 14.5.1965, 81.7.65 and 22.8.65 of the Syndicate, which are to the following effect: Minutes of the meeting of the Syndicate held on Friday the 14th May 1965 at 5.30 p. m. in the Committee Room of the University. "Resolved that the Vice-Chancellor be authorised to negotiate with competent and qualified persons to fill the poets of the Readers and Professors vacant in University." Minutes of the meeting of the Syndicate held on Saturday the 31st July 1905 at 4.30 p.m. in the Committee Room of the University. "Resolved that the report of the expiry of the term of Dr. R. S. Shukla on 12th August 1905 be recorded. Resolved further that in order to fill up the vacancies of Professors the Vice-Chancellor be authorised to negotiate with suitable per. eons and make appointments. At this stage the Syndicate further directed that the vacancy of Professorship in History caused by the retirement of Dr. B. P. Sakeena be also tilled up early." Minutes of the meeting of the Syndicate held on Sunday the 22nd August, 1935 at 5.80 p.m. in the Committee Room of the University. "Resolved that the minutes of the meeting of the Syndicate held on 81st July, 1965 be confirmed. While confirming the minutes it was pointed out by one of the members that while the Vice-Chancellor could take action under Section 12 (5), it may not be proper for Syndicate to ask him to make appointments. Hence it was decided that the words 'and make appointments' be dropped from the second resolution to item No. 8." 11. The University l as taken the stand that in exercise of the authority conferral by the said resolutions as also in exercise of the authority conferred by the Act under Section 12 (5), the Vice-Chancellor was competent to appoint Dr. 0. The University l as taken the stand that in exercise of the authority conferral by the said resolutions as also in exercise of the authority conferred by the Act under Section 12 (5), the Vice-Chancellor was competent to appoint Dr. 0. P. Singh as Professor of Hindi Department which he did on 2.8.65. Dr. 0. P. Singh joined the University as Professor on 14-8.65 on probation of one year. The date of birth of Dr. C. P. Singh was stated to be 1.7.1910. It is stated that there was am is. print in the Gazette. It has been-contended that the petitioner had no right to get a writ of quo warranto or any other similar writ, order or direction, that the petition has been filed after a great delay, that the petitioner had appeared before the Selection Committee of which Dr. C. P. Singh was a member and having so appeared before that Selection Committee, she had no right to challenge the appointment of Dr. 0. P. Singh as Professor of Hindi. It was prayed that the writ petition be dismissed. 12. On almost similar lines is the reply by Dr. C. P. Singh, respondent No. 1, Dr. Ram Behari former Vice Chancellor was directed to be made a party by this court's order dated 2.2.1968. He has been served but has not filed any reply. 13. It is the admitted position in this cape that no selection, as envisaged by the Act and the Statutes, took place for the appointment of Dr. C. P. Singh as Professor of Hindi in the University. Under Statute 5 (2), the Syndicate subject to the provisions of the Act, the statutes and the Ordinances and in addition to all other powers vested in it, has the power to appoint from time to time, professors, readers, lecturers and others as stated therein on the recommendation of the selection Committee constituted for the purpose. It has been urged by learned counsel for the University that this provision is directory and not mandatory and that the Syndicate can make an appointment without the recommendation of the Selection Committee. This argument is devoid of any force. Statute 19 (4) lays down that the Selection Committee shall consider and present to the Syndicate recommendations as to the appointment referred to it. This argument is devoid of any force. Statute 19 (4) lays down that the Selection Committee shall consider and present to the Syndicate recommendations as to the appointment referred to it. It further lays down that if the Syndicate is unable to accept the recommendations made by the Selection Committee the Syndicate shall record such reasons and submit the case to the Chancellor for final orders. Statute 5(2) lays down that the Syndicate shall make appointments on the recommendation of the selection Committee. The mandatory nature of this provision is supported by what is contained in Statute 19 (4) laying down that if the Syndicate does not accept the recommendation made by the Selection Committee, it shall record its reasons and submit the case to the Chancellor for final orders. Not only that the Syndicate is required to make appointments on the recommendation of the Selection Committee but it has no power to make any appointment if it disagrees with the recommendation of the Selection Committee The final authority for appointment which in the case of agreement with the recommendation of the Selection Committee vests in the Syndicate, is taken away from it and is vested In the Chancellor in case of disagreement with the Selection Committee's recommendation. It appears clear to no that the provision contained in Statute 5 (2) that the Syndicate shall make appointment on the recommendation of the Selection Committee is mandatory in nature and is not merely directory. This view finds further support from what is contained in Statute 18 (5). 14. Statute 18 (5) is to the effect that no person shall be appointed or recognised as a teacher of the University except on the recommendation of a Selection Committee constituted for the purpose. Statute 5 (2) conferred on the Syndicate an express power couched in a positive form and therefore, it could be argued on behalf of the University that it was merely an enabling or a directory provision and not provision of a mandatory nature. But it is significant to note that the same direction has been given in the negative form in Statute 18 (5). It is well settled that negative worth are clearly prohibitory and are ordinarily used as a legislative device to make a Statute imperative. But it is significant to note that the same direction has been given in the negative form in Statute 18 (5). It is well settled that negative worth are clearly prohibitory and are ordinarily used as a legislative device to make a Statute imperative. In this connection, we may refer to M. Pentiah v. Muldala Veeramallappa, A.I.R. 1961 S C 1107 in which Section 77 of the Hyderabad District Municipalities Act (18 of 1956) came up for interpretation before their Lordships of the Supreme Court. Section. 77 of the said Act was to the following effect : "Subject to such exceptions as the Government may by general or special order direct, no Committee shall transfer any immovable property except in pursuance of a resolution passed at a meeting by a majority of not less than two-third of the whole number of mom. hers and in accordance with rules made under this Act, and no committee shall transfer any property which has been vested in it by the Government except with the sanction of the Government : Provided that nothing in this section shall apply to leases of immovable property for a term not exceeding three years " It has been observed that the section confers on the Committee an express power couched in a negative form, that negative words are clearly prohibitory and are ordinarily used as a legislative device to make a statute imperative. Learned Additional Advocate General appearing for the University frankly conceded that this provision as it is couched in the negative form is clearly prohibitory. He has, however, submitted that Statute 18(5) should be read along with Statute 17 and cls. (1) to (4) of Statute 18 and, if so read, it would appear that it applies to recognition of teachers and not to the appointment of teachers of the University. Statute 17 (1) lase down that members of the teaching staff in the University shall consist of servants of the University paid by the University and appointed by the Syndicate as Professors, Readers or Lecturers or otherwise as teachers of the University or persons appointed by the Syndicate as honorary Professors, Readers or Lecturers or otherwise as teachers of the University. Statute 17 (1) deals with the appointment by the Syndicate of teachers of the University whether paid by the University or in an honorary capacity. Statute 17 (1) deals with the appointment by the Syndicate of teachers of the University whether paid by the University or in an honorary capacity. Statute 17 (2) deals with recognised teachers who shall be members of the teaching staff of the colleges or institutions. Clause(1) to (4) of Statute 18 deal with qualifications of recognised teachers etc. Statute 18 (5) lays down that no person shall be appointed (relates to appointment as teachers of the University covered by Statute 17 (1)) or recognised (relates to recognised teachers covered by Statute 17 (2)) as a teacher of the University except on the recommendation of the Selection Committee constituted for the purpose. It is thus clear that Statute 18 (5) relates to appointment as teachers of the University as also to recognition of teachers of the teaching staff of colleges or institutions. This position would further be clear from a perusal of Statute 19. Statute 19 (1) lays down the procedure for the constitution of a Selection Committee for appointment as teachers of the University while Statute 19 (2) is for the constitution of Selection Committee for recognition of teachers of colleges. Section 4 (7) of the Act which defines the powers of the University, lays down that the University shall have power to appoint or recognise persona as professors, readers or lecturers or otherwise as teachers of the University. 15. It has been urged on behalf of the University that marginal note of Statute 18 shows that it relates to recognition of teachers. It is well settled that the marginal notes can afford no legitimate aid to construction and cannot be referred to for that purpose. In the Commissioner of Income tax, Bombay v. Ahmedbhai Umarbhai and Co., Bombay, A.I.R. 1950 SC 134 the Supreme Court bag observed that marginal notes in an Indian Statute, as in an Act of Parliament, cannot be referred to for the purpose of construing the statute nor can the title of a chapter be legitimately used to restrict the plain terms of an enactment. In the Hand-book of the University, all provisions regarding conditions of service have been collected at Page 255. In the Hand-book of the University, all provisions regarding conditions of service have been collected at Page 255. Statute 18 (5) has teen repeated and the marginal note given to it is "Manner of recruitment." At page 89 of the Handbook the marginal note of Statute 18 is "Recognition of teachers" and at page 256 when Statute 18 (5) has been repeated under head conditions of service -appointment of teachers, the marginal note is "Manner of recruitment." The marginal note is thus of no assistance in this case and cannot be looked to for interpreting Statute 18 (5). 16. It has also been urged by learned Additional Advocate General that the fact that there was a provision in Statute 5 (2) about appointment of teachers by the Syndicate on the recommendation of the Selection Committee, there was no necessity of repeating the same thing in Statute 18 (5). Statute 5 (2) is in a positive form and Statute 18 (5) lays down the same thing in a negative form. Statute 5 (2) is to the effect that the Syndicate shall make appointments on the recommendation of the Selection Committee. It had, therefore, necessarily to be in a positive form. In order to make the position clear beyond all doubt, it has been reiterated in the negative form in Statute 18 (5). Farther Statute 5 (2) deals only with the appointment of teachers whereas Statute 18 (5) deals with both appointment and recognition as teachers of the University. Here, it would not be out of place to mention that no plea was taken by the University in its reply to the writ petition that Statute 18 (5) related merely to recognition of teachers. What was contended in the University's reply was that Statute 18 (5) was not mandatory, but was merely directory. Statutes 5 (2) and 18 (5) are mandatory in nature, and that being so, no appointment as a teacher of the University could be made by the Syndicate unless there was a recommendation by the Selection Committee constituted for the purpose. 17. There is a public policy behind the salutary provision of Selection Committee prescribed in the Statutes. The University is a public body and appointments to various posts under the University are public appointments. Every citizen has a right to be considered for appointment to these posts if he is duly qualified. 17. There is a public policy behind the salutary provision of Selection Committee prescribed in the Statutes. The University is a public body and appointments to various posts under the University are public appointments. Every citizen has a right to be considered for appointment to these posts if he is duly qualified. The University is a state under Article 12 of the Constitution for purposes of fundamental rights and under Article 16 it is necessary to provide equal opportunity to all citizens for employment under the University. This can only be done if the poets are duly advertised and there is a proper selection by persons duly qualified to assess the merits of the candidates. The Selection Committee prescribed under the Statute consists of experts on the subject, who are competent to judge the merits of candidates which the Syndicate cannot. No Selection Committee was constituted for selection of Professor of Hindi, and consequently, the appointment of respondent No. 1 by the then Vice Chancellor was invalid. 18. On behalf of the University, it is said that the appointment of respondent No. 1 by the then Vice Chancellor was made under S. 12 (5) of the Act. The petitioner's case is that no emergency existed and that the Vice Chancellor never applied his mind to the question whether any emergency existed and. therefore, the action taken by him was not covered by S. 12 (5) of the Act. Learned Additional Advocate General appearing for the University has argued that the words "in any emergency, when, in the opinion of the Vice Chancellor, immediate action is required" constituted a clear indication that the entire function was subjective and that whether an emergency exists or not is a matter of subjective opinion. The Legislature having entrusted the function to the Vice Chancellor, it is urged that the Court cannot go behind his opinion and ascertain whether the relevant circumstances existed or not. On the other hand, learned counsel for the petitioner has submitted that it is open to the Court to examine whether there were circumstances suggesting an emergency. The question is which of the two view points is correct? For this, we would refer to a recent decision of the Supreme Court in Barium Chemicals Ltd. v. Company Law Board, A.I.R. 1967 S C 295 . 19. The question is which of the two view points is correct? For this, we would refer to a recent decision of the Supreme Court in Barium Chemicals Ltd. v. Company Law Board, A.I.R. 1967 S C 295 . 19. In that case, the Secretary of the Company Law Board, on 19.5.1965, issued an order on behalf of the Company Law Board made under S. 237 (b) of the Companies Act, 1956 appointing four persons as Inspectors for investigating the affairs of the Barium Chemicals Ltd. The order was male by the Chairman of the Board on behalf of the Board by virtue of the powers conferred on him. The Company preferred a writ petition under Article 226 of the Constitution in the Punjab High Court for the issue of a writ of mandamus or other appropriate writ, direction or order quashing the order of the Board dated 19th May 1965. The High Court rejected the writ petition. The Company went to the Supreme Court by special leave. Many points were raised in the case, but we are concerned here only with one of them and that is regarding interpretation of the words "in the opinion of the Central Government (by reason of delegation of its powers the Board) there are circumstances suggesting" appearing in section 237 (b) of the Companies Act, 1956. Section 297 (b) empowers the Central Government and by reason of delegation of its powers, the Board to appoint inspectors to investigate the affairs of company if ''in the opinion of the Central Government" (now the Board) there are circumstances ; 'suggesting" what is stated in the three sub-clauses to clause (b). The question for consideration was whether the entire action under this section was subjective. After referring to the various authorities on the point Shelat J. delivering the main judgment observed as below: "Therefore, the words "reason to believe" or "in the opinion of" do not always lead to the construction that the process of entertaining "reason to believe" or ' the opinion" is an altogether subjective process. Not landing itself even to a limited scrutiny by the court that such "a reason to believe" or "opinion" was not formed on relevant facts or within the limits or as Lord Radcliffe and Lord Reid called the restraints of the statute as an alternative safeguard to rules of natural justice where the function is administrative. Not landing itself even to a limited scrutiny by the court that such "a reason to believe" or "opinion" was not formed on relevant facts or within the limits or as Lord Radcliffe and Lord Reid called the restraints of the statute as an alternative safeguard to rules of natural justice where the function is administrative. *** *** *** *** It is hard to contemplate that the legislature could have left to the subjective process both the formation of opinion and also the existence of circumstances on which it is to be founded. It is also not reasonable to say that the clause permitted the Authority to say that it has formed the opinion on circumstances which in its opinion exist and which in its opinion suggest an intent to defraud or a fraudulent or unlawful purpose. It is equally unreasonable to think that the legislature could have abandoned even the email safeguard of requiring the opinion to be founded on existent circumstances which suggest the things for which an investigation can be ordered and left the opinion and even the existence of circumstances from which it is to be formed to a subjective process. The analysis finds support in Gower's Modern Company Law (2nd Ed. 1, p. 547) where the learned author, while dealing with S. 165 (b)- of the English Act observes that "the Board of Trade will always exercise its discretionary power in the light of specified grounds for an appointment on their own motion" and that "they may be trusted not to appoint unless the circumstances warrant it but they will test the need on the basis of public and commercial morality." There must therefore exist circumstances which in the opinion of the Authority suggest what has been set out in sub clauses (i), (ii), (iii). If it is shown that the circumstances do not exist or that they are such that it is impossible for any one to form an opinion therefrom suggestive of the aforesaid things, the opinion is challenge able on the ground of non.applications of mind or perversity or on the ground that it was formed on collateral grounds and was beyond the scope of the statute." Applying the above principles to the present case, if it is shown that the circumstances for emergency did not exist or t the circumstances were such that it was impossible for any one to form an opinion there. from suggestive of the existence of emergency, the opinion is challenge able on the ground of non-application of mind or perversity or on the ground that it was formed on collateral ground and was beyond the scope of statute. 20. On behalf of the University, reliance has been placed on the resolution dated 14.5.65, 31.7.65 and 22.8.65 of the Syndicate quoted above supporting the appointment of respondent No. 1 by the Vice Chancellor. The resolution on 14.5.65 authorised the Vice Chancellor to negotiate with competent and qualified persons to fill the poets of Readers and Professors vacant in the University. This resolution has no relevancy in the present one as Dr. Rasal's post was not vacant then and, therefore, there could be no question of filling it. 21. It has been urged by learned counsel for the University that the Syndicate in its meeting held on 81-7.1965 decided not to extend the term of Dr. Rasal and thus an emergency was created to appoint a Professor and Head of the Department because such a post could not be kept vacant. The minutes of the meeting of the Syndicate held on Saturday the 31st July, 1965 at 4-80 p. m. recorded that the term of the tenure appointment of Dr. R. S. Shukla, Professor of Hindi will expire on 12th August, 1965 that the Vice Chancellor be authorised to negotiate with suitable persons and make appointment to fill up the vacancies of professors and that the vacancy of professor of History caused by the retirement of Shri B. P. Sakeena on 31.7.1965 be fillet up early. There was no direction for filling up the vacancies of professors in other Departments at an early date. There was no direction for filling up the vacancies of professors in other Departments at an early date. The minutes of the meeting dated 31.7.1965 do not show that there was any emergency to fill up the poet of Professor in Hindi. The Professor of Hindi was Dr. Rasal, who was to retire on 12th August 1965. The emergency it there was any, was in respect of History Department where the Professor had retired on 31.7.1965, and in which there was not even a single Reader, so far as the Department of Hindi was concerned, it is accepted that there were two readers and 19 lecturers. Besides, Dr. Rasal worked up to 12.8.1965 when his term expired and handed over charge in the afternoon of that day to Dr. Motilal, the next man who was Ph. D., D. Litt, and K A. in three subjects Hindi, Sanskrit and English. By its resolution dated 31-7-90, the Syndicate authorised the Vice Chancellor to negotiate with suitable persons in respect of the vacancies of Professors and make appointments. The respondent's stand that an emergency was created when the Syndicate at its meeting held on 81.7.1955 resolved not to extend the term of Dr. Rasal seems to be devoid of any force. Dr. Rasal, in the ordinary course was to retire on 12th August, 1965 when the term of his tenure appointment was to expire. Assuming that the decision of the Syndicate dated 31-7.1965 recording the termination of the tenure appointment of Dr. Rasal on 12th August, 1965 came as a surprise to the Vice Chancellor, there was no emergency to appoint a Professor in Hindi by taking recourse to emergency powers and setting at naught the provisions regarding selection when there were competent persons to run the Department till the selection was made in the normal course. It has been stated in the reply filed by this University that such a post could not be kept vacant. At the request of the petitioner, the University furnished information (pages 121 and 122 of the paper book) showing the dates when the posts of Professors fell vacant in the various Departments of the University and when they were filled up. Several poets of Professors remained vacant for long periods. Here, we would refer to only three of them. Professor D. P. Sakeena, Head of the History Department retired on 81-7.1965. Several poets of Professors remained vacant for long periods. Here, we would refer to only three of them. Professor D. P. Sakeena, Head of the History Department retired on 81-7.1965. The post was advertised on 19.11.65. Ten persons applied for the poet. Professor Dashrath Sharma was selected. He joined the University on 1.8.1966, The Department of History remained not only without a Professor but with. out any Reader from 81.7.1965 to 1.8.1966. If emergency was advanced as a ground for appointment of Respondent No 1 as Professor- of Hindi, there was greater urgency in History Department. Similarly, in Physics Department Professor Krisbhaji left the University on 12.1.67. The post was advertised on 6.6 67 and Professor S. Lokanathan was selected. He joined the University on 23-10-1967. In the Botany Department, Shri U. N. Chatterji left on 81.12.66. The poet was advertised and filled up on 24.7.67. The facts established on the record go to show that there were no bona fide teaching requirements necessitating the appointment of a Professor in the Hindi Department under the provisions of S. 12(5). The Act and the Statutes make ample pro. vision for the appointment of a Reader or Lecturer as the Head of the Department in the absence of a Professor and for the appointment of such a Head of Department as Dean of Faculty in the absence of any Professor in the Faculty, vide Statutes 8 (1) (c) and 11. The facts further show that the appointment of Dr. C. P. Singh was made in this unusual manner because there was no chance that any Selection Committee would recommend his name on account of his premature retirement from the Baroda University as a result of an enquiry. The inference is that the provision under S. 12 (5) was utilised as the Vice- Chancellor did not want an open Selection to be made by a Selection Committee but wanted to appoint Dr. C. P. Singh under the cloak of an emergency. 22. It has also been stated in the reply by the University that qualified persons would not have liked to make applications and appear before the Selection Committee and that was why Dr. C. P. Singh was appointed without going through the process of selection. It is incorrect to say that qualified persons do not aptly for such posts. 22. It has also been stated in the reply by the University that qualified persons would not have liked to make applications and appear before the Selection Committee and that was why Dr. C. P. Singh was appointed without going through the process of selection. It is incorrect to say that qualified persons do not aptly for such posts. The information furnished by the University, goes to show that there was no dearth of suitable applicants for the poets which were advertised. The way in which the appointment of Respondent No. 1 has been made lends support to the argument advanced on behalf of the petitioner that it was not a case of emergency but a case in which the appointment bad already been decided upon and the plea of emergency had been invoked to evade the mandatory provisions regarding selection by a Selection Committee. The Syndicate in its meeting dated 31.7.1965 authorised the Vice. Chancellor to fill up the vacancies of Professors by negotiations with suitable persons and make appointment. The petitioner wanted the correspondence about negotiations to be produced. The University claimed privilege, which was overruled. Now, it has been stated on behalf of the University that there was no correspondence with any one except Dr. C. P. Singh. 23. The meeting of the Syndicate authorising the Vice.Chancellor to negotiate with suitable persons to fill up the vacancies of Professors took place on 31.7.1965 at 4.80 p.m. There is an offer by the Registrar to Dr. C. P. Singh on the same day. The Registrar's letter is addressed to Dr. C. P. Singh, Head of the Department of Hindi, University of Baroda, Baroda. The letter shows as if Dr. Singh was the Head of the Department of Hindi and was at Baroda. These facts are entirely untrue. Dr. C. P. Singh was not the Head of Hindi Department at Baroda on 31st July 1905. His services had been terminated by the University of Baroda earlier. The said letter was not sent to Baroda but to the D. I. G's House at Jodhpur. He received the letter at Jodhpur on the same day. The reply was sent by Dr. C. P. Singh from Jodhpur but it shows as if it was sent from Baroda. Dr. C. P. Singh was no more in the service of the Baroda University. He received the letter at Jodhpur on the same day. The reply was sent by Dr. C. P. Singh from Jodhpur but it shows as if it was sent from Baroda. Dr. C. P. Singh was no more in the service of the Baroda University. Yet, he showed himself to be in the service of the said University as Professor and Head of the Hindi Department. In respect of his emoluments, be has said "as regards my present emoluments, I have been drawing Rs. 1,050/-. per mensem." 'There was no question of his "present" emoluments when he was no more in the service. It was clear case of a pre-planned affair on the part of the then Vice Chancellor and misrepresentation on the part of Dr. C. P. Singh. 24. It seems to us to be transparently clear that no circumstances existed suggesting that there was an emergency requiring the appointment of a Professor in the Hindi Department and it was impossible for any one to form an opinion suggestive of such an emergency. There is nothing on record to suggest that the Vice-Chancellor was of the opinion that there was any such emergency for the appointment of a Professor of Hindi or that the provision under S. 12 (5) was at all in his mind when be made the appointment on 2.8.1965. Assuming however that he purport. ed to act under S. 12 (t) his action was an abuse of the powers under that provision as no circumstances existed on tie basis of which any one could possibly come to the finding that the appointment of a Professor of Hindi was necessary as an emergency measure. The provision contained in S. 12 (5) is not designed to enable the Vice Chancellor to act as a substitute for various statutory bodies of University. The appointment was a clear violation of mandatory provisions of law contained in Statutes 5 (2), 18 (5) and 19 (1) also in violation of Article 16 of the Constitution. 25. It has been found that there was no emergency for the Vice-Chancellor to have taken recourse to S. 12 (5) for the appointment of respondent No. 1 as Head of Hindi Department. 25. It has been found that there was no emergency for the Vice-Chancellor to have taken recourse to S. 12 (5) for the appointment of respondent No. 1 as Head of Hindi Department. Even if the Vice-Chancellor thought that there was an emergency, be could have made a temporary arrangement to meet the emergency and should have taken necessary steps for constituting a Selection Committee for selection of a Professor in Hindi. It has been submitted that the Syndicate did not reverse the order of -the Vice.Chancellor appointing respondent No. 1 as '.Professor of Hindi. but later confirmed him (respondent No. 1) at its meeting held on 31.8.66. But if the initial appointment was invalid, as is the position in the present case, the confirmation of respondent No. 1 later by the Syndicate was also invalid. It has been shown earlier that the Syndicate had no power of appointment of s teacher except on the recommendation of the Selection Committee constituted for the purpose and when it had no power of appointment except on Selection Committee's recommendation, it had no power of confirmation. 26. It has been averred by the petitioner that it did not appear to be correct that the respondent No. 1 was compulsorily retired at the age of 55 years. According to the petitioner, he was retired even before reaching the age of 55 years. The date of birth of respondent No. 1 as given in Jhodhpur University Gazette No. 6 of November 1965 is 18.10.1910. The respondent No. 1 was felicitated on his entering the 57th year. On that occasion, invitations were issued. The petitioner has produced a copy of the invitation card, which shows that his Hindi date of birth was "Shared Purnima," which fell on the 18th October in 1910. He would thus complete the age of 55 years on 17.10.1965, but after his compulsory retirement from the Baroda University he was appointed as Professor of Hindi in Jodhpur University and he joined here on 14th August, 1965, that is, before he completed the age of 55 years. In bit reply, respondent No. 1 has stated that his data of birth has been wrongly entered in the Jodhpur University Gazette and that his correct date of birth was 1.7.1910. He was asked to produce his matriculation certificate but he did not file it. In bit reply, respondent No. 1 has stated that his data of birth has been wrongly entered in the Jodhpur University Gazette and that his correct date of birth was 1.7.1910. He was asked to produce his matriculation certificate but he did not file it. It is needless to go into the question of age of respondent No. 1 as it has no bearing on the legality of his appointment in the University. This fact is uncontroverted that the respondent No. I was retired from the Baroda University at the age of 55 years (the petitioner says that it was even before 55 years) even though the retirement age of teachers in that University was 60 years as would appear from letter Et. 3 dated 18.6.1966 of the Vice.Chancellor of Baroda University. We do not, therefore, consider it necessary to decide the actual date of birth of respondent No. 1 We do not also consider it necessary to decide that the respondent No. 1 as Head of the Department of Hindi was not lawfully appointed as Dean of the Faculty of Arts on 9th September 1965 and as a member of the Syndicate on 10sh De=ember 1965 in his capacity as Dean of the Faculty of Arts in view of our finding that his appointment as Professor of Hindi was invalid, which ipso facto made invalid his nomination as Dean and member of the Syndicate as they were in his capacity as Professor of Hindi. 27. It has been urged an behalf of the University that the opinion of two experts, namely, Dr. Nagendra, Professor and Head of the Department of Hindi in the University of Delhi and of Dr. Harbanslal, Head of the Department of Hindi in the Aligarh University (Page 65) was obtained before the confirmation of respondent No. 1 what was the occasion to collect material in support of the appointment ? If the appointment was in accordance with law, there was no necessity to collect post facto material to support the action taken. On the other hand, if the appointment was not in accordance with law, the collection of approbatory chits would not make it lawful. 28. It has been argued that the petitioner appeared as a candidate before the selection committee of which non-petitioner No. 1 was a member for the appointment of a lecturer in Sanskrit. On the other hand, if the appointment was not in accordance with law, the collection of approbatory chits would not make it lawful. 28. It has been argued that the petitioner appeared as a candidate before the selection committee of which non-petitioner No. 1 was a member for the appointment of a lecturer in Sanskrit. There was thus an acquiescence on her part, and, therefore, she could not maintain the writ application. There is no- thing to show that the petitioner was aware of the fact that the appointment of respondent No. 1 was invalid on 4th August 1966 when she appeared before a Selection Committee of which Dr. C. P. Singh was a member. When she learnt about the facts she challenged his appointment by filing a writ petition. Her writ petition was pending when she appeared before an ad hoc committee of which Dr. C. P. Singh was a member and this cannot disentitle her from prosecuting it. We may in this connection refer to the judgment of Modi J. in Qurab Ali v. Government of Rajasthan, I L R 9 Raj 1084 : (A.I.R. 1960 Raj 152) , in which it was contended that the petitioner having themselves contested the elections which they were challenging they should be taken to have acquiesced in the illegalities and were disentitled to maintain the writ petition. It was held that the objection had no force as there could be no estoppel against a statute and there could be no question of any estoppel because it could not be said that the position of the other aide was in any way altered by reason of something done or not done by the petitioners. We accordingly hold that there was no acquiescence on the part of the petitioner and she is not debarred from maintaining the petition on that ground. 29. It has been urged that there was delay in filing the writ petition. The present writ petition was filed on 18th December 1966, five months after the confirmation of respondent No. 1 on 31st August 1966. But before filing the present writ petition the petitioner filed writ petition No. 1309 of 1966 on 24th September 1966 in which inter alia the appointment of Dr. C. P. Singh was challenged. In that writ petition the appointments of Mrs. Sharda Gandhi and Dr. L. N. Sharma were also challenged. But before filing the present writ petition the petitioner filed writ petition No. 1309 of 1966 on 24th September 1966 in which inter alia the appointment of Dr. C. P. Singh was challenged. In that writ petition the appointments of Mrs. Sharda Gandhi and Dr. L. N. Sharma were also challenged. That writ petition was withdrawn on 12th October 1966 as this Court was of the view that the petitioner should exhaust all her remedies under the University Act and Statutes. The present writ petition was than filed on 19th December 1966, challenging the appointment of Dr. C. P. Singh alone. Another writ petition No. 41 of 1967 was filed on 19th January 1967 challenging the appointment of Mrs. Gandhi and Dr. Sharma. There was thus no undue delay on behalf of the petitioner in challenging the appointment of Dr. Singh. 30. The attitude of the Court of law to. wards cases of usurpation of an authority by a pretender is well expressed in the celebrated case of R. V. Speyer, (1916) 1 K B 595 that "Every subject has an interest in securing that public duties shall be exercised only by those competent to exercise them" (Per Lush J. p. 628). In such cases quo warranto is "enforced for the benefit of the community" (Lush J.), and to refuse it would be to "perpetuate illegality" (Lord Reading C. J., p. 612 ibid) in a matter concerning 'the public Government' (p. 613, ibid). To quote Lord Reading (p. 613 ibid). Again, ......... the Court ought to incline to the assistances, and not to the hindrance, of the applicant in such a case if the Court has the power, which I think it has '. The essential conditions for issuing a writ of quo warranto in respect of an office are that the office must be public, it must have been created by statute or by the constitution itself, it must be of a substantive character and the respondent must not legally be qualified to bold the office or to remain in the office or he has not been appointed in accordance with law. 31. In University of Mysore v. Govinda Rao, A.I.R. 1965 S C 491 , the Supreme Court quoted the following passage from Halebury (vol. 31. In University of Mysore v. Govinda Rao, A.I.R. 1965 S C 491 , the Supreme Court quoted the following passage from Halebury (vol. ii, p. 145) : "An information in the nature of a quo warranto took the place of obsolete writ of quo warranto which lay against a person who claimed or usurped an office, franchise, or liberty, to enquire by what authority he supported his claim, in order that the right to the office or franchise might be determined". and observed : "Broadly stated, the quo warranto proceeding affords a judicial enquiry in which any person holding an independent substantive public office, or franchise, or liberty, is called upon to show by what right be holds the said office, franchise or liberty ; if the inquiry leads to the finding that the holder of the office has no valid title to it, the issue of the writ of quo warranto costs him from that office. In other words, the procedure of quo warranto confers jurisdiction and authority on the judiciary to control executive action in the matter of making appointments to public offices against the relevant statutory provisions; it also protects a citizen from being deprived of public office to which he may have right. It would thus be seen that if those proceedings are adopted subject to the conditions recognised in that behalf, they tend to protect the public from usurpers of public office in some cases, persons not entitled to public office say be allowed to occupy them and to continue to hold them as a result of the connivance of the executive or with its active help, and in such oases, if the jurisdiction of the Courts to issue writ of quo warranto is properly invoked, the usurper can be ousted and the person entitled to the post allowed to occupy it. It is thus clear that before a citizen can claim a writ of quo warranto, he must satisfy the Court inter alia, that the office in-question is & public office and is held by usurper without legal authority, and that necessarily leads to the enquiry as to whether the appointment of the said alleged usurper has been made in accordance with law or not." In G. D. Eatkare v. T. L. Shevade, A.I.R. 1952 Nag 330 the appointment of the Advocate General was challenged on the ground that under the Constitution only a person qualified to be appointed as a Judge of a High Court could be appointed and as the respondent was over 60 years of age, he was not qualified to be appointed a Judge and was not, therefore, qualified to be appoints as Advocate General. It was held that the writ of quo warranto operated in the holder of the office, which was a high public office. It was oleo that any person could move the Court without alleging violation of any specific right of the applicant because the Office of Advocate General was a high public office. 32. In the present case, the office of the Professor of Hindi Department, is a high public office. It has been created by statute. It is of a substantive character. The respondent No. 1 has assumed the office although his appointment is in complete violation of the statutory provision. He was not selected by the Selection Committee and was appointed by the Vice Chancellor under the cloak of emergency when, in fact, there was no emergency. In the circumstances, it is an appropriate case for a writ of quo warranto making an order of ouster of respondent No. 1 from holding the office of Professor of Hindi and consequent upon it from holding the office of Dean of the Faculty of Arts and member of the Syndicate. 33. We are quite conscious that Court of law should not too readily interfere with the internal working of a University, which is an autonomous body without adequate care and caution. 33. We are quite conscious that Court of law should not too readily interfere with the internal working of a University, which is an autonomous body without adequate care and caution. But at the same time, where the University may be found to be acting clearly in breach of its own rules and regulations, or in excess of its lawful authority or contrary to a provision of the Constitution as in this case (appointment of professor of Hindi in violation of mandatory statutory provisions and also in violation of Article 16 of the Constitution), then the High Court cannot abdicate its duty of stepping in and calling it to perform its lawful duty under the obligation which has been imposed upon the Court by the Constitution of the country as enshrined in Article 226 thereof. 34. The net result of our findings, for the reasons stated above, is that the writ petition is allowed, the appointment of respondent No. 1 as Professor and Head of Department of Hindi is quashed and an injunction is issued restraining him from discharging any of the functions, rights or duties of the office in question and of its allied offices, namely, the Dean of the Faculty of Arts and member of the Syndicate. 35. In the circumstances of the case, we direct the respondents Nos. 1 and 2 to pay the costa of the petition to the petitioner.Petition allowed. *******