Judgment Brishketu Saran Sinha, J. 1. The prayer in this application under Articles 226 and 227 of the Constitution is to quash Annexure 1 appended to it, which is a notification dated 16th December, 1981, appointing the respondent No. 2 Dr. S.N. Sinha as Director, Department of Science and Technology, Government of Bihar, on deputation from Motilal Nehru Regional Engineering College, Allahabad, for two years from the date that he assumes charge of his office. Petitioner No. 1 is the principal of Bhagalpur Engineering College, Bhagalpur, and petitioner No. 2 is a Professor of Mechanical Engineering in the same College. 2. Briefly stated the averments in the writ application are that the post of Director, Science and Technology, was first filled up by promotion by Dr. R.P. Verma, who was then the senior most principal, working in the Regional Institute of Technology at Jamshedpur. On his retirement, Dr. J.P. Choudhary, Principal, Bihar Institute of Technology, was appointed to that post, being the senior-most amongst the Principals. When Dr. J.P. Choudhary was Director, the designation was changed from Director of Technical Education to Director of Science and Technology. After retirement of Dr. Choudhary, the post was filled up by Dr. H.C. Pandey, Director, Bihar Institute of Technology, for six months or till the receipt of the recommendation of the Service Commission whichever was earlier. A copy of the notification has been appended as Annexure 4 and is dated 5th June, 1976. His tenure was extended from time to time till 14th April, 1978. The next incumbent of the post was Professor Sidheshwar Prasad, Principal, M.I.T., Muzaffarpur. He was appointed by promotion on 15th April, 1978 and he continued till he retired on 7th January, 1980. A copy of the notification appointing him to the post has teen appended as Annexure 5 3. The post of Director, Science and Technology, having fallen vacant in January, 1980, on the retirement of Professor Sidheshwar Prasad, Shri Anil Bhusan Prasad, I.A.S. Joint Secretary in the Department of Science and Technology, was appointed to work as Director in addition to his own duties till respondent No. 2 Dr. S.N. Sinha was appointed on the basis of the impugned order (Annexure 1). According to the petitioners, R.P. Verma, Dr. J.P. Choudhary and Professor Sidheshwar Prasad were appointed by promotion on the recommendation of the Bihar Public Service Commission. S.N. Sinha was appointed on the basis of the impugned order (Annexure 1). According to the petitioners, R.P. Verma, Dr. J.P. Choudhary and Professor Sidheshwar Prasad were appointed by promotion on the recommendation of the Bihar Public Service Commission. In pursuance of the notification (Annexure 1) Shri Anil Bhushan Prasad handed over charge to respondent No 2 on 18th December, 1981. 4. According to the petitioners, in the year 1969, the State Government in the Department of Science and Technology, decided that the post of Director should be filled up by promotion from amongst Principals of Engineering Colleges in the State to enable them to have opportunity to be appointed to the top-most technical post in the Department. Subsequently, due to implementation of the University Grant Commission scale of pay for Professors, Principals and Director, the State Government decided that the post of Director, Science and Technology, should be filled up by direct appointment through advertisement on an All India basis. This decision of the State Government was communicated to the Accountant General, Bihar, Finance Department and Principals of all Engineering Colleges through letter No. 1230 dated 28th February, 1977, copy of which is Annexure3 appended to this application. The petitioner aver that the State Government instead of referring the matter to the Public Service Commission and advertising the post after retirement of Professor Sidheshwar Prasad, in complete disregard of such procedure, appointed respondent No. 2 on the recommendation of Dr. C.S Jha, Education Advisor (T), Government of India. Dr. Jha recommended the name of respondent no 2 by his letter dated 21st August, 1980, a copy of which is Annexure 7 to this application. The petitioners further aver that respondent No. 2 Dr. Sinha approached high authorities in the Government for this job, and in support of this, two letters have been filed which are Annexure 8 and 8/a. Annexure 8 is a letter from respondent No. 2 to the Chief Minister of Bihar and is dated 1st July, 1981, while Annexure 8/a is a letter by respondent No. 2 addressed to Shri Chandrashekhar Prasad Special Secretary to the Government of Bihar, Department of Science and Technology. The petitioners have stated that although the vacancy occurred on 7th January, 1980, the State Government took no steps to advertise the post on an All India basis and to make the appointment in accordance with it. The petitioners have stated that although the vacancy occurred on 7th January, 1980, the State Government took no steps to advertise the post on an All India basis and to make the appointment in accordance with it. Instead, the appointment has been made on extraneous consideration and violation of law and in disregard of the policy of the Government. The appointment has been made on the basis of recommendation made by the Education Advisor (T) of the Government of India. There is also some averment in the writ petition that the petitioners have been holding higher posts and senior position for a longer period than respondent No. 2 and by this illegal appointment their chance of being considered for the post has been frustrated. 5. The Science and Technology Department, according to the petitioners, put up a memorandum for appointment of Dr. S.H. Singh by deputation for a period of six months and later on to extend it to two years with the concurrence of the Public Service Commission: a copy of the memorandum has been enclosed as Annexure 2: on which the Chief Minister ordered on 30th May, 1981, that the matter be placed before the Cabinet but the appointment should be made and later on the other formalities completed. On this Shri Anil Bhusan Prasad, Joint Secretary of Science and Technology pointed out that approval of the Cabinet was necessary under the rules of Executive Business is the appointment was being made without the recommendation of the Commission. He also pointed out that the post should be filled up by promotion as it would amount to suppression of is to 15 Principals and Professors who were senior to respondent No, 2 or the mode of direct appointment on an All India basis should be followed. He therefore, requested that the Chief Minister may consider his earlier order. The Special Secretary, Science and Technology Department however suggested for the appointment of respondent No. 2 on contract basis on the ground that it was necessary to fill up the post immediately but also indicated that the appointment may be made for six months and it may subsequently be extended with the concurrence of the Public Service Commission. The Special Secretary, Science and Technology Department however suggested for the appointment of respondent No. 2 on contract basis on the ground that it was necessary to fill up the post immediately but also indicated that the appointment may be made for six months and it may subsequently be extended with the concurrence of the Public Service Commission. On such notes the Secretary in the Cabinet Secretariat pointed out that the appointment of respondent No. 2 would be against the policy decision of the State Government as contained in Annexure 8 or the appointment was being made on the recommendation of the Education Advisor (T) of the Government of India also pointed out that the (sic) Principals and Professors in the Engineering Colleges in Bihar who are senior to respondent No. 2 and who would be adversely affected. He, therefore, advised that respondent No. 2 should not be appointed and suggested advertisement on an All India basis so that the selection could be made from persons both from and outside the State. The personnel Department, it has been stated, also raised objection on the proposal to appoint respondent No. 2 for two years and suggested that advertisement be made through the Bihar Public Service Commission on an All India basis to fill up the post, The Chief Minister, however, ordered on 15th November, 1981, that a letter be issued to respondent No. 2 appointing him for two years and later on the terms and conditions of his service may be settled in consultation with the Finance Department, After the aforesaid order of the Chief Minister, the Special Secretary, Science and Technology, again pointed out that even the appointment of Dr. H.C. Pandey on contract basis for one year had been reduced earlier to six months as it was in contravention of the regulation which have been framed in exercise of the powers conferred on the State Government under Article 320(3) of the Constitution and later on the appointment of Dr. Pandey was made for one year only on the basis of the recommendation of, the Public Service Commission, The Chief Minister, however, again on 2nd December, 1981, in pursuance of his earlier decision, ordered the appointment of respondent No. 2 for two years. Pandey was made for one year only on the basis of the recommendation of, the Public Service Commission, The Chief Minister, however, again on 2nd December, 1981, in pursuance of his earlier decision, ordered the appointment of respondent No. 2 for two years. According to the petitioners, the Joint Secretary-cum-Director, Shri Anil Bhushan Prasad, objected that the proposed order was unconstitutional and he may not be compelled to sign and issue it and reiterated his earlier view. Thereafter, there was some nothing and ultimately the memorandum was put up before the Cabinet which, on 20th December, 1981 authorised the Chief Minister to make the appointment to the post. A copy of the memorandum and the decision of the Cabinet has been appended as Annexure 2. Ultimately, the impugned order as contained in Annexure 1 was passed. The petitioners had represented to the Government against the appointment of respondent No. 2 but they did not receive any answer to their representation. 6. In support of this application it has been submitted that the appointment of respondent No. 2 is in violation of the policy decision of the Government, copy of which is Annexure 3 as also in contravention of Regulations 7 and 8 of the Bihar Public Service Commission Limitation of Functions) Regulation, 1957 (hereinafter referred to as the regulation) It has further been submitted that the petitioners are entitled to pray for the quashing of the appointment of respondent No. 2 as they have a legal right to be considered for the post as they have the necessary qualifications. 7. Two sets of counter affidavits, have been filed; one on behalf of respondent No. 1, the State of Bihar, through its Special Secretary, Department of Science and Technology; and the other on behalf of Dr. S.N Sinha, respondent No. 2, Director Science and Technology. According to the averments made in the counter affidavit on behalf of respondent No. 1, it has been admitted that respondent No. 2 has been appointed on deputation and in such situation Regulations 7 and/or 8 do not apply. It has further been stated that the post of Director, Science and Technology, fell vacant in the year 1980 as the incumbent of the post was selected as a member of the Bihar Public Service Commission Thereafter Shri A.B. Prasad, Joint Secretary, Science and Technology, was performing the work of Director besides his own. It has further been stated that the post of Director, Science and Technology, fell vacant in the year 1980 as the incumbent of the post was selected as a member of the Bihar Public Service Commission Thereafter Shri A.B. Prasad, Joint Secretary, Science and Technology, was performing the work of Director besides his own. In the meanwhile, the then Commissioner and Secretary, Science and Technology Department, approached the Education Advisor, Government of India to suggest the name of a suitable qualified and technical personnel to work as the Director and the latter suggested the name of respondent No. 2, the Acting Principal of Motilal Nehru Regional Engineering College, Allahabad. The Government of Bihar then wrote a letter to the Chairman, Governing Body of Motilal Nehru Engineering College, asking whether it was possible for them to spare respondent No. 2 to join the post and, if it was possible, to send the terms and conditions for such approval. The Board of Governors of the College wrote back to say that respondent No. 2 could be spared and thereafter the appointment of respondent No. 2 was made on deputation basis, which, according to respondent No. 1, is justified as the said appointment. It has also been stated on behalf of respondent No. 1 that it was not expected that the post of Director, Science and Technology, would be filled up through advertisement within a year or two because the post of Joint Director, Technical, could not be filled up through advertisement although the post was advertised twice but no suitable persons could be recommended by the Public Service Commission. Therefore, taking this into consideration, the Government accepted the terms and conditions and appointed respondent No. 2 for two years. It has further been stated that as the post of Director is to be filled up by advertisement, the question of seniority was not relevant to the appointment. It has been re-emphasised in counter affidavit on behalf of the State Government that the appointment No. 2 as a Director was not permanent, it was only a stop-gap arrangement, and that post would be filled up on the recommendation of the Public Service Commission through advertisement. It has farther been stated in the counter affidavit that the question of violation of the policy decision of the Government does not arise in the case as the appointment is a stop gap arrangement. It has farther been stated in the counter affidavit that the question of violation of the policy decision of the Government does not arise in the case as the appointment is a stop gap arrangement. Further, according to respondent No. 1, the appointment being temporary in nature, the petitioner have no cause of action. 8. Respondent No. 2 has filed a separate counter affidavit in which it has been accepted that from the year 1977 the University Grant Commission scale of pay was adopted for the post of Director, Technical Education, redesigned as Director of Science and Technology, and the scale of pay carried a condition precedent that the post must be filled up by direct recruitment through advertisement on an All India basis and hence from 1977 the manner of appointment to the post of Director, Science and Technology, changed to direct appointment through advertisement. According to respondent No. 2, even during the time of Professor Sidheshwar Prasad the file was started in August, 1978, with a proposal for advertising the post of Director of Science and Technology. According to him during the Presidents rule the Governor had a talk with the Education Advisor (T), Department of Education, Government of India, who recommended the name of respondent No. 2. This respondent has averred that even on advertisement a suitable person was not found for the post of a joint Director and, therefore, the State Government was right in approaching the Education Advisor (T) Ministry of Education, Government of India, who was most competent person to advise on such matters and after lengthy discussions and actings on file, the respondent No. 2 was appointed for two years on the relaxation of rules in this regard. Respondent No. 2, in his counter affidavit, has also enumerated at great length his own qualifications and experiences. Replies have also been filed to the counter-affidavit. 9. On behalf of respondent No. 1 the Learned Advocate General submitted that Regulation 8 did not apply and there was no question of violation of the policy decision as contained in Annexure 3 because the appointment of respondent No. 2 was only a stop-gap arrangement. Learned Advocate General further submitted that even if there was violation of Regulation 8, it could not be a ground for setting aside the appointment of respondent No. 2 as the provision was directory and not mandatory. Learned Advocate General further submitted that even if there was violation of Regulation 8, it could not be a ground for setting aside the appointment of respondent No. 2 as the provision was directory and not mandatory. Reliance was also placed by the learned Advocate General on Annexure 8 appointed to the counter affidavit filed on behalf of respondent No. 2 which is a communication dated 15th February, 1982, from the Bihar Public Service Commission stating that in spite of advertisement they were unable to recommend a suitable person for the post of Joint Director, Science and Technology. He, therefore, submitted that since even a Joint Director was not easily available, the Government had no option but to take the advice of the Education Advisor (T) of the Government of India and make suitable stopgap arrangement for two years by appointing respondent No. 2 to the post. 10. Mr. Balbhadra Prasad Singh, on the other hand, appearing for respondent No. 2, submitted that the post of Director, Science and Technology, is not a cadre post in the Engineering service. Being an ex-cadre post, recruitment has been made to the post by Government in the exercise of the management of its executive affairs as a necessary incident vested in it under Article 162 of the Constitution and, therefore, reading Article 320(3) together with Regulation 6(6) of the Regulation, the appointment of respondent No. 2 would not be covered by Regulations 7 and 8. According to learned Counsel the word recruitment used in Regulations 6(6) must mean to include the word appointment also. According to learned Counsel, to give a narrow construction to the word recruitment as used in Regulation 6(6), would not bring out an effective result on the principle that drafting fault or inaptitude should be ignored and an interpretation given which will fulfill the object. It was submitted that in view of Regulation 6(6) there was no question of consulting the Public Service Commission. According to learned Counsel, the policy decision as given in Annexure 3 had been changed by the Government which was within the domain of its executive powers as there was no impediment in its way because of any law. 11. Both the learned Advocate General as also Mr. Singh submitted that in any view the petitioners had no locus standi to challenge the appointment of respondent No. 2. 12. 11. Both the learned Advocate General as also Mr. Singh submitted that in any view the petitioners had no locus standi to challenge the appointment of respondent No. 2. 12. It has not been disputed by either side that Annexure 3 is a policy decision of the Government in which the post of Director Science and Technology, has been shown in item No 5 by which the pay scale has been fixed at Rs. 2,600.00 Rs. 2,500.00 x Rs. 200.00 special pay in accordance with the scales of the University Grant Commission. Paragraph 5(ii) further provides that for all the posts, enumerated in this communication, which includes the post of Director, Science and Technology, appointments, will be made on the basis of an All India advertisement and the qualification will be as provided by the Government of India. Therefore, it is clear that the post of Director, Science and Technology, would be filled up by an advertisement on an All India basis. This fact has not been refuted by the State Government in its counter-affidavit. On the contrary, it has been asserted that the post has got to be filled up on the basis of an All India advertisement. On behalf of respondent No. 2 also it has not been stated in his counter affidavit that the post is not to be filled up by an All India advertisement. Therefore, there is no difficulty in holding that the post of Director, Science and Technology, in accordance with Annexure 3 has to be filled up on the basis of an All India advertisement. 13. Regulations 7 and 8 read thus: 7. When appointment to a service or a post is made by promotion or transfer from another service, it shall not be necessary to consult the Commission unless it is proposed, by such promotion or transfer, to fill: (a) a permanent post substantively, or (b) a permanent post or a temporary post on an officiating or temporary basis for a period executing six months: Provided that, if an appointment is made for a period not exceeding six months, and it is subsequently proposed to extend the period so that it will exceed six months in all, the Commission shall be consulted. 8. 8. When appointment to a service or a post is made otherwise than by promotion or transfer from another service, it shall not be necessary to consult the Commission if the appointment is not expected to continue for more than six months and cannot be delayed without detriment to the public interest. Provided that, if it is proposed to retain the person so appointed in the same post for a period exceeding six months or to appoint him to another post in the service of Government, the Commission shall be consulted. Reading these two provisions together it is clear that when appointment to a post is not made by promotion or transfer from another service, consultation with the Commission is not necessary if the appointment is not expected to continue for more than six months and cannot be delayed without detriment to the public interest. However, under the proviso to Regulation 8, where the person appointed has to be retained for a period beyond six months, the Commission has to be consulted; and under Regulation 7 where the appointment is first made for six months then it is proposed to extend it, the commission has to be consulted. In the instant case the appointment of respondent No. 2 to the post of Director, Science and Technology, has not been made either by promotion or transfer. According to respondent No. 1, it has not been made by deputation; although it is rather difficult to understand what exactly is meant to be conveyed by this expression in the instant case. Be that as it may, even if it has been made by deputation, yet, it not being a case of either of promotion or transfer, the appointment for two years as the impugned order says, is in violation of Regulation 8. Regulation 8 provides that the Commission need not be consulted if the appointment is only for six months, and once it exceeds that period, the Commission has got to be consulted. 14. Learned Advocate General submitted that as it was a case of stop-gap arrangement, regulations would not apply. I am unable to accept this submission. In relation 8 no exception is made with regard to stop-gap appointments. The word used there is appointment and it has got to be given its ordinary meaning which would include any type of appointment to a post. I am unable to accept this submission. In relation 8 no exception is made with regard to stop-gap appointments. The word used there is appointment and it has got to be given its ordinary meaning which would include any type of appointment to a post. Therefore, if any appointment to a post has been made for a period beyond six months, such appointment had to be made after consulting the Commission. In this case, admittedly, the Commission has not been consulted before making the impugned appointment. The appointment was made in December, 1981. The counter-affidavit on behalf of respondent No. 1 in the instant case was filed in April 1982. It has not been stated therein that the case of respondent No. 2 had been referred to the Public Service Commission for its recommendation. Even during the course of argument on 3rd February, 1983, the learned Advocate General was not able to state that the appointment of respondent No. 2 had been sent for concurrence of the Public Service Commission. Therefore, I am of the view that the appointment of respondent No. 2 by the impugned order for a period of two years is in violation of Regulation 8. 15. The question that still survives consideration is as to what would be the effect of such a violation. There can be no doubt that the provision of Regulation 8 is directory and not mandatory. In the case of State of U.P. V/s. Manbodhan Lal Srivastava A.I.R. 1957 S.C. 912, it was observed that the use of the word shall does not necessarily mean that in every case, unless the word of the Statute are punctiliously followed the proceeding, would be invalid and if the Public Service Commission is not consulted, it shall not afford a cause of action in a Court of law or entitle the aggrieved person to a relief under Article 226 or Article 32 of the Constitution. This observation was, however made in the background that if the provisions of Article 311 of the Constitution had been complied with, any irregularity committed in not complying with the provisions of Article 320(c) would not entitle one to a remedy. It was further pointed out that it was not open to the executive Government to completely ignore the Public Service Commission, 16. In the case of Smt. Adhikari Devi V/s. District Magistrate, Vaishali and Ors. It was further pointed out that it was not open to the executive Government to completely ignore the Public Service Commission, 16. In the case of Smt. Adhikari Devi V/s. District Magistrate, Vaishali and Ors. A.I.R. 1974 Pat 19, it was held that although the provisions of Sec.11(2)(a) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, was not mandatory, it did not mean that it could be violated and if there was no substantial compliance, the order was liable to be struck down. Further, in a Bench Decision of this Court in Man Singh V/s. State of Bihar and Ors. 1982 B.B.C.J. 392, to which I was also a party, Sarwar Ali, J. (as he then was) held that directory instructions have to be followed and where there is substantial compliance, it cannot be held that the order is invalid or vitiated. It was however, pointed out that total failure to comply with the significant part of the requirement of the instructions cannot be regarded as substantial compliance with total requirements. It has further observed in that care that the directory instructions could not be ignored with impunity. In the present case I am constrained to hold that the relevant provisions of the Regulations and the executive instructions and the executive instructions (annexure 3) have been ignored with impunity and there is nothing to indicate that any attempt has been made with regard to substantial compliance of either. 17. The next question that fall for consideration is whether there is some justification for the Government in making the appointment as it was expected that on advertisement no one would be available for the post. It is not in dispute that although the vacancy occurred in January, 1980. no attempt has been made to advertise the post in accordance with the policy decision (annexure 3). The plea of respondent No. 1 that even on advertisement probably no suitable person would be available for immediate appointment, cannot be sustained. In support of this plea reference was made by the learned Advocate General to Annexure B, appended to the counter affidavit filed on behalf of respondent No. 1. Annexure B is a communication dated 15th February, 1982, from the Bihar Public Service Commission stating that in spite of advertisement being made from 1980, no suitable person was available for the temporary post of Joint Director, Science and Technology. Annexure B is a communication dated 15th February, 1982, from the Bihar Public Service Commission stating that in spite of advertisement being made from 1980, no suitable person was available for the temporary post of Joint Director, Science and Technology. The appointment of respondent No. 2 was made in December 1981, i.e. before the above communication from the Public Service Commission was received by the Government. Further, the post fell vacant in January, 1980, and steps had been taken in August, 1981, as is borne out by Annexure 7, a letter written by Dr. C.S. Jha, Education Advisor (T), Government of India, to make the appointment by an All India advertisement. Therefore, at that stage there was no material before the Government to justify the conclusion that if the permanent post of Director, Science and technology, was advertised on an All India basis, no suitable person would be available I have already pointed out earlier that since the retirement of Professor Sidheshwar Prasad no attempt ever was made by the Government to act in accordance with Annexure 3. Therefore, the argument on behalf of the State that the appointment of respondent No. 2 was made in distress as no suitable candidate would be available on the basis of an All India advertisement cannot be sustained and must be rejected. 18. The next question that I now proceed to consider is the argument of Mr. Balbhadra Prasad Singh that the instant case is governed by Regulation 6(6) which reads as follows: 6. In regard to service and posts to which appointments are made directly by Government, it shall not be necessary to consult the Commission on any of the following matters, namely,-- ... ... (6) the question whether recruitment of candidates for particular posts should be made in India or from abroad; ... I have already pointed out above that in the above provision, Mr. Singh submitted that the word recruitment should include appointment in order to give full effect to this provision. Mr. Singh further submitted that it was within the competence of the Government to alter the mode of recruitment for the post in the absence of rules or regulations governing the subject. It was also urged by placing reliance on a decision in Union of India V/s. Majji Jangammayya and Ors. Mr. Singh further submitted that it was within the competence of the Government to alter the mode of recruitment for the post in the absence of rules or regulations governing the subject. It was also urged by placing reliance on a decision in Union of India V/s. Majji Jangammayya and Ors. A.I.R. 1977 S.C. 757, that the change of rules for recruitment could be gathered on an interpretation of the relevant correspondence. It is not necessary in this case to decide the scope of Regulation 6(6). Even if it is assumed that the aforesaid regulation could apply. Mr. Singh has not been able to point out anything from the materials on record that the executive instructions as contained in Annexure 3 have been changed. I have already noticed above that the stand of the Government is that the appointment to the post of Director of Science and Technology will be made in accordance with Annexure 3. It may further be noticed in this context that Annexure 10 which is dated 21st October, 1981, only states that the cabinet approved that the appointment to the post of Director, Science and Technology, made by the Chief Minister. It does not refer to any change in the method of recruitment. Therefore, this submission of Mr. Singh must fail. 19. The last question that falls for consideration is whether this application is entertain able. In the case of Sant Ram Sharma V/s. State of Rajasthan and Ors. A.I.R. 1967 S.C. 1910, it was held that if every one eligible to the post before appointment was not considered, it would be breach of the provisions of Articles 14 and 16 of the Constitution. And, in the case of Sheo Dayal Sinha and Ors. V/s. The State of Bihar and Ors. A.I.R. 1981 S.C. 1543, it has again been observed that as the case of the appellants in that case was not considered for promotion which the Government was bound to consider, there was clear violation of Articles 14 and 16. In the instant case the petitioners have averred that if the appointment is made on the basis of Annexure 3 then they would be entitled to apply for the post and be considered for it as they have requisite qualification. This has not been challenged by the respondents. In the instant case the petitioners have averred that if the appointment is made on the basis of Annexure 3 then they would be entitled to apply for the post and be considered for it as they have requisite qualification. This has not been challenged by the respondents. I am, therefore, of the view that the petitioners are entitled to challenge the appointment of respondent No. 2 if the appointment had been made in violation of Annexure 3 and the regulations. 20. Mr. Singh, however, relied upon the case of Dr. Rai Shivendra Bahadur V/s. Governing Body of the Nalanda College, Biharsharif and Ors. A.I.R. 1962 S.C. 1210 to urge that the present application was not maintainable. In that case it held that the petitioner had not shown any right entitling him to get an order for appointment or reinstatement and in that view, his application was dismissed. The ratio of that case has no application to the present case in as much as I have already held that the petitioners, if the post is advertised, are entitled to be considered for appointment to the post. The learned Advocate General has merely submitted that as in the instant case the appointment was not to be made by promotion, the petitioners had no right to maintain this application. This argument has got to be repelled as the petitioners have a right to apply and be considered for the post. 21. Mr. Singh also, in course of his argument, has fairly conceded that it could not be urged in the present case that a writ of mandamus would not He, In this context it would be enough to refer to be Smiths Judicial Review of Administrative Action, Fourth Edition, at page 542, where the learned author has stated as follows: These limitations on the scope of mandamus, in so far as they exist are unfortunate. They are not accepted in India or in some American state jurisdictions, where mandamus frequently issues to enforce abstention from unlawful conduct. Nor have they been consistently observed in English law. In some situations mandamus will lie to undo what has been done; the Courts merely treat the unlawful act as a nullity and order the competent authority to perform its duty as if it had refused to act at all in the first place. Nor have they been consistently observed in English law. In some situations mandamus will lie to undo what has been done; the Courts merely treat the unlawful act as a nullity and order the competent authority to perform its duty as if it had refused to act at all in the first place. Therefore, having held that the present application is maintainable and that the appointment of respondent No. 2 is in utter violation and disregard of the executive instructions (Annexure 3) and the Regulations, Annexure 1 has got to be quashed and set aside. 22 In the result, the application is allowed and Annexure 1 is quashed. But, in the circumstances of the case I would make no order as to costs. Ram Chandra Prasad Sinha, J. 23 I agree.