Judgment RAMASWAMI, J. ( 1 ) THE appellant was appointed by the government of Bihar as an Assistant Professor (Civil Engineer) in the Industries department in the year 1950. He was posted as University Engineer in the Patna University While he was serving in the Patna University he was superannuated in the year 1966 but was re-employed for a period of four years. The Patna Improvement Trust (hereinafter described as the Trust) requested the government of Bihar to lend the services of an Engineer. preferably the appellant for appointment as Chief Engineer of the Trust in its letter No. 295/lsg, dated January 10, 1967 the government accorded approval to the appointment of the appellant as Chief Engineer of the trust. By a resolution, dated 28/10/1967 the Trust appointed the appellant as Chief Engineer with effect from March 30, 1567 on the terms and conditions specified In the said resolution. The appellant joined his duties on 30/03/1967 in pursuance of the said resolution. It appears that subsequently the public service commission expressed Its Inability to give its concurrence to the appointment. Thereafter the government asked the Trust to terminate the services of the appellant as the Public service Commission expressed its inability to give its concurrence, in its meeting held on 8/01/1968 the Trust resolved that the government should be requested to reconsider its decision. Accordingly the government reconsidered the matter and by its letter No. 1312, LSG. dated 22/02/1968 the government communicated its approval to the appointment of the appellant as proposed by the trust A special meeting of the Trust was held on 22/02/1968 and a resolution was passed confirming the appointment of the appellant. In the meantime one T. N. Bajpay, an Executive Engineer of the Trust and two other persons filed writ petitions before the Patna High court challenging the validity of resolution of the Trust in appointing the appellant as Chief Engineer. The writ petitions were adjourned For bearing to 9/05/1968. On that date T. N. Bajpay produced a letter dated 8/05/1968 of State government withdrawing the sanction given to the appointment of the appellant as chief Engineer of the Trust. The writ petitions were adjourned For bearing to 9/05/1968. On that date T. N. Bajpay produced a letter dated 8/05/1968 of State government withdrawing the sanction given to the appointment of the appellant as chief Engineer of the Trust. The letter of the State government reads as follows:- "as directed in connection with the appointment of Shri P. K. Mukherjee on the post of Chief Engineer in Patna Improvement Trust, I am to say that after taking into consideration all the facts in regard to the appointment of Shri Mukherjee, the opinion of the Legal Adviser was obtained and the government has reached to the conclusion that the appointment of Shri P. K. . Mukherjee has not been made in accordance with law because according to section (28) of the Bihar Town Planning and Improvement Act, 1951 the prior approval of the Public Service Commission and prior sanction of the government for his appointment has not been obtained. Thus it if requested that Shri P K. Mukherjee be relieved at once (soon) from the post of Chief Engineer and the intimation to this effect be sent to the government without delay. ( 2 ) ). government letter No. 1312 Stha Sewa. Sha Local Self Govt. dated 2/2/1968 in which sanction (approval) of the appointment of Shri p. K. Mukherjee was mentioned, is hereby withdrawn. On 9/05/1968 the High court made the following order: "in these three writs, the main grievances of the petitioner is regarding the alleged invalidity in the appointment of Shri p. K. Mukherjee (respondent No. 4) as Chief Engineer of the patna Improvement Trust Mr. Dayal for the petitioner, however, filed before us a recent order of the government of bihar, dated 3-5-68 (Annexure 1 to D. W. J. C. 351 of 1967) in which the government have issued a direction to the Patna improvement Trust to relieve Shri Mukherjee from his present post as soon as possible in view of this letter of the government, these three writ petitions have become infructuous because the main relief asked for has already been granted by the government. Mr. Dayal thereupon urged that there is reasonable apprehension that whatever may, be the governments order, the Chairman. Improvement Trust (respondent No. 2) may not obey the same. Mr. Mr. Dayal thereupon urged that there is reasonable apprehension that whatever may, be the governments order, the Chairman. Improvement Trust (respondent No. 2) may not obey the same. Mr. Verma, Standing Counsel for government has; after consulting the secretary concerned, given an assurance on behalf of the State that steps would be taken as early as possible to implement the aforesaid government Order in accordance with law. in view of this assurance Mr. Dayal does not press these petitions, which were accordingly disposed of " ( 3 ) ). OB 15/05/1968 T. N. Bajpay filed a petition under s. 2 of the contempt of courts Act against the Chairman of the Trust and the appellant was added as a party to the petition. On 22/07/1968 Mr. Sulaiman, gave an undertaking to the High court to remove the appellant from his post subject to certain conditions. By its order dated 22/07/1968 the High court discharged the rule for contempt. The orders of the High court, dated 22/07/1968 and July 23, 1968 are to the following effect:- "22. 7. 68. Head counsel for all the patties and also Mr. Sulaiman in person. The main question for consideration is the due implementation of the assurance given by Mr. Verma, Standing Counsel for the government, after consulting the secretary concerned on 9th May, 1968 in C. W. J. C. No 351 of 1967, Mr. Verma assured this court that steps would be taken to implement theater of the government directing the Patna Improvement Trust to remove shri P. K. Mukherji from his post as Chief Engineer of the patna Improvement Trust. It appears from the affidavits that government have issued further directions to, Sri Sulaiman, chairman of the Improvement Trust, to see that the assurance is duly implemented by removing Sri Mukherji from his present post. Mr. Sulaiman who appears in person entertained some doubts about the legality of the order. But in the last letter addressed to him by Mr. H. Prasad on the 9/07/1968 (Annexure B) it appears that government have directed him to relieve Shri Mukherji at once and to report the action takes on their letter. Mr. Sulaiman informed as that be will gladly obey the governments order at once; provided he does not become liable in any litigation which Shri Mukherji may decide to start or continue against the Improvement Trust or the government. Mr. Sulaiman informed as that be will gladly obey the governments order at once; provided he does not become liable in any litigation which Shri Mukherji may decide to start or continue against the Improvement Trust or the government. The learned Advocate-General thereupon intervened and stated that, according to law of Tort, if a person commits a tortuous wrong to another person under the directions of a third party, the third party alone (here the government will be liable to the person wronged and that shri Sulaiman need not have any anxiety on this point. In view of this statement of the law, Mr. Sulaiman stated that he will immediately obey the governments order and relieve shri Mukherji by this evening". "28. 7. 68. . . . . . . . . . . . . . . . Rule for contempt against Mr. H. Prasad and Mr. Sulaiman la discharged in view of the effective compliance with the undertaking given by Mr. Verma". ( 4 ) ). On August 13, 1968 the appellant moved the Patna High court for the grant of a writ (1) to quash the order of the State government, dated 3/05/1968 and (2) to quash the order of the Chairman, of the Trust, dated July 22, 1968 terminating he contract of service. The petition was dismissed by the High court on the ground that the appointment of the appellant was not a valid appointment in view of cls. (ii) and (iii) of r. 23 of the Bihar Improvement Trusts Officers and servants (Appointment, Classification, Conduct, Control and Punishment) rules, 1956, which says :- " (i) the Commission shall after proper examination of the service records and other qualification of the candidates either concur in the proposal of the Chairman or express its inability to do so for the specific reasons to be stated by it. (ii) In no circumstances the candidate in whose appointment the commission has not concurred shall be appointed by the Trust". This appeal is brought by special leave from the order of the Patna high court dismissing the writ petition of the appellant. ( 5 ) ). (ii) In no circumstances the candidate in whose appointment the commission has not concurred shall be appointed by the Trust". This appeal is brought by special leave from the order of the Patna high court dismissing the writ petition of the appellant. ( 5 ) ). There is no doubt that the High court was wrong in taking the view that r. 23 (iii) governs the appointment of the appellant The reason is that the appellant was not appointed by nomination from amongst the officers and servants of the Trust or from amongst other persons who arc in active government service. Section 28 (c) of the Bihar Town Planning and Improvement Trust Act, 1951 (Bihar Act 35 of 1951) states :- "subject to any rules made under section 27 and for the time being in force, the power of appointing and promoting officers and servants of the Trust, and reducing, suspending or dismissing them for misconduct, and dispensing with their services for any reason other than misconduct shall be vested. x x x x (c) in the case of officers and servants whose monthly salary exceeds one thousand rupees the Trust after consultation with the public service commission constituted under Article 35 of the Constitution of India for the State of Bihar, and with the previous sanction of the State government". ( 6 ) ). Rule 21 provides that "appointment to any post referred to in clauses (b) and (c) of section 28 shall be made either by direct recruitment or by nomination from amongst the officers and servants of the Trust or from amongst other persons who are in active government service as the trust may decide". The appointment of the appellant is a case of direct recruitment for which the procedure prescribed under r. 22 is applicable. That rule states :- "when appointment to any post referred to in clauses (b) and (c) of section 28 Is to be made by direct recruitment, the following procedure shall be followed :- (i) immediately after a decision is taken by the Trust to make appointment by direct recruitment, the Chairman shall request the Commission through the State government to advertise the post on the basil of the detailed information furnished to the commission in Form 3. (ii) The Commission shall thereupon advertise the post and interview such candidates as it considers suitable for being interviewed. (ii) The Commission shall thereupon advertise the post and interview such candidates as it considers suitable for being interviewed. (iii) After interview the commission shall recommend to the Trust through the State Government names of at least two candidates arranged in order of merit for each vacancy for appointment by the Trust. 1 (iv) The trust shall ordinarily appoint the person who has been placed in order of merit by the Commission : provided that in the case of officers and servants referred to in clause (c) of section 28, the appointment shall be made with the previous approval of the Stale government. x x x x (v) In ease the Trust does not accept the first nominee of the commission it may appoint the second nominee for reason to be recorded in writing, which shall be communicated to the commission through the State government". ( 7 ) ). It follows, therefore, that the order of the State government, dated 3/05/1968 is vitiated by an error of law. the order of the High court, dated 9/05/1968 in the writ proceeding is based on the order of the State government, dated 3/05/1968. I he order of the High court in the contempt proceeding, dated 22/07/1968 and the order of the chairman of the Trust, dated 23/07/1968 terminating the services of the appellant are also defective in law became they are based on the order of the State Government, dated 3/05/1968. It was, however, argued on behalf of respondent No. 1 that in the first order of appointment made by ;the Trust, dated 20/03/1967 there was a stipulation that the concurrence of the public service commission would be necessary to the appointment. It was said Chat though the provisions of r. 23 (iii) may not apply to the case of the appellant there was contractual terms between the parties that the appointment was subject to the concurrence of the Public service Commission and, therefore, the order of the trust, dated 21/07/1968 and the State Government, dated 3/05/1968 were properly made it is not possible to accept this argument as well founded. The reason is that in the resolution, dated 8/01/1958 the trust said that the appointment of the appellant should be made though the Public Service commission has refused to concur to the appointment, the resolution of the Trust was approved by the State Government by its letter, dated 22/05/1968. The reason is that in the resolution, dated 8/01/1958 the trust said that the appointment of the appellant should be made though the Public Service commission has refused to concur to the appointment, the resolution of the Trust was approved by the State Government by its letter, dated 22/05/1968. It is clear that there was no contractual term between the parties requiring the concurrence of the public service commission to the appointment. ( 8 ) ). The question arises whether in these circumstance; the appellant was entitled to the grant of a writ under Art 220 of the constitution. It is manifest that no writ of mandamus can be issued ordering the reinstatement of the appellant to the post of Chief Engineer of the Trust. The reason is that the appointment of the appellant was a matter of contract and further the period of appointment for two years under the contract has already expired. In the special circumstances of the case, however, we think that the appellant is entitled to a declaration that the order of the State government dated 3/05/1968 and the order of the Chairman of the Trust, dated 22/07/1968 are illegal. The appeal is allowed to this limited extent. There will be no order as to costs in this court.