JUDGMENT
M.Y. Eqbal, J.
1. The matter relates to appointment of lecturer in History in Bokaro Mahlla College which is an affiliated college. It has five sanctioned posts of lecturer in the Department of History, The second post was sanctioned in 1987 while the 3rd, 4th and 5th post were sanctioned in 1990. The commission namely Bihar State University Service Commission advertised 1st post in 1983 vide advertisement No. 130/83. The second post was advertised in 1989 by advertisement No. 862/89. The 3rd, 4th, and 5th post were advertised in 1984 vide advertisement No. 7/94. Many candidates including the petitioner and respondent applied for the said post. The commission held the interview and finally recommendation was sent by the commission for all the five posts in 1998 vide memo No. 48 dated 21.4.1998. From perusal of Annexure-10 which is a letter of recommendation dated 21.4.1998 It appears that the recommendation was made in the following manner.
Advertisement No. 130/83
First Post
1. Smt. Dipa Sinha
2. Smt. Anjali Saran
Advertisement No. 862/89
Advertisement No. 7/94
Second Post
1. Dr. Smt. Prabhavati Kumari
2. Smt. Sarita Kumari
Third Post
1. Smt. Mamta Roy
2. Shri Ashok Kumar
Fourth Post
1. Shri Ashok Kumar
2. Smt. Rita Kumari
Fifth Post
1. Smt. Rita Kumari
2. Smt. Lucy Ekka
2. Smt. Anjali Saran is the petitioner in CWJC No. 752/98. She has challenged the recommendation of the commission on the ground inter alia that although her case was recommended for appointment on the post of lecturer against first post in pursuance of advertisement No. 130/83 but she was not given preference over other candidates recommended for promotion against second, third, fourth and fifth posts. The petitioner’s case is that she did her MA in 1982 and was appointed as lecturer by the Governing Body in 1987 in the said Bokaro Mahila College through proper advertisement and since then she has been working on the said post. Her further case is that her appointment on the second sanctioned post was duly concurred by the commission in 1990 and also temporary concurrence was granted by the commission again in the same year. It is further stated that Smt. Binay Saran was working on the first sanctioned post and she left the college In 1989 and in due course her service was terminated. Therefore, petitioner should have been considered against the first sanctioned post.
3. It appears that out of candidates recommended by the commission the following candidates have been appointed in the following manner:–
(1) Smt, Dipa Sinha, Against first post
(2) Smt. Prabhavati Kumari, Against second post
(3) Smt. Mamata Roy, Against third post
(4) Smt. Ashoke Kumar, Against fourth post –
(5) Smt. Anjali Saran, Against fifth post
4. The Governing body of the college Issued appointment letters to the above named persons in 1999 and they joined their respective post.
5. Smt. Rita Kumari whose name was recommended as a first candidate for the fifth post has filed CWJC No. 1777/1999. She has prayed for issuance of a writ of mandamus directing the respondents governing body of the college to appoint her on the post of lecturer against fifth post in view of the recommendation of the commission contained in the letter dated 21-4-1998 in pursuance to advertisement No. 7/94. She has also prayed for quashing the letter dated 25-1-1999 issued be the Secretary of the Governing Body of the college by which the other candidates namely respondent Nos. 7 and 8 have been appointed.
6. I have heard Mr. P.K. Prasad, learned counsel appearing for the petitioner in CWJC No. 752 of 1999, Mr. Apresh Kumar Singh and Mr. Ajit Kumar, learned counsel appearing for the petitioner in CWJC No. 1777/99 who is respondent also In CWJC No. 752/99. I have also heard Mr. A.K Mehta and Mr. Sohail Anwar learned counsels appearing for the other respondents.
7. The only question that falls for consideration by this Court is whether the petitioner Smt. Rita Kumari is entitled to be appointed on the post of lecturer against the fifth post merely because her case was recommended against the fifth post.
8. Mr. Apresh Kumar Singh learned counsel for the petitioner firstly submitted that in the advertisement it was clearly mentioned that preference will be given to the ladies candidate for the post of lecturer in Womens Colleges. Learned counsel submitted that the respondent have committed serious illegality in not giving preference over the male candidate namely Ashoke Kumar. Learned counsel further submitted that the Governing Body of the college has altered the recommendation given by the commission by appointing Smt. Anjali Saran against the fifth post ignoring the case of the petitioner and that was done because according to the Governing Body she was the most suitable candidate.
9. Before appreciating the contention of the learned counsels it would be proper to refer some of the relevant provisions of law. Bihar College Service Act, 1976 was enacted for the purpose of appointment of Teachers of the affiliated and Intermediate colleges in the State of Bihar. The said was adopted by the State of Jharkhand also. Section 2 lays down the procedure and power of establishment of a commission. Sub-sections (8), (9) and (10) of Section 2 reads as under :
“(8) In making recommendations for appointment to every post of teacher of any [Affiliated college and Intermediate Colleges] the commission shall have the assistance of such experts and shall be governed by such conditions as have laid down in Section 57 of the Bihar State Universities Act, 1976 in this behalf.
(9) The Commission shall recommend for appointment to every post of teacher names of two persons arranged in order of preference and considered by the Commission to be the best qualified, thereof. The recommendation shall be valid for one year from the date of the recommendation by the Commission.
(10) In making any such appointment the Governing Body of the college shall, within three months from the date of the receipt of the recommendations under Sub-section (9) make its selection out of the names recommended by the Commission, and in no case shall Governing Body appoint a person who is not recommended by the Commission”.
10. It is therefore, clear that the commission will have to recommend two persons for appointment to every post of teacher in order of preference and the Governing Body shall appoint such person only who are recommended by the commission.
11. In this regard it is also useful to refer Section 57 of the Bihar University Act 1976 which lays down the provision for appointment of Teachers and Officers. Subsection (4) of Section 57 reads as under.
(a) The appointment of lecturers of affiliated colleges shall be made on the recommendation of Bihar College Service Commission.
(b) For appointment of Lecturers of affiliated colleges, the Bihar College service commission shall invite applications from candidates who have qualified in the Bihar eligibility test and or who are eligible for appointment to the post of lecturer as provided in subsection (2) and the commission on the basis of interview shall prepare subject wise merit list against the vacancies of affiliated college.”
12. From perusal of the aforesaid provision it is manifest that the commission after conducting interview and after considering the requisite qualification and experience shall prepare subject wise merit list against the vacancies of affiliated colleges.
13. So far qualification and experience of Smt. Anjali Saran vis-a-vis Smt. Rita Kumari are concerned admittedly Smt Anjali Saran did her M A in 1082 and was appointed as lecturer by the Governing body of the college in 1987 and the Commissioner earlier granted temporary concurrence of her appointment and since 1982 she has been working as a lecturer. As Smt. Rita Kumari did her M A in History in 1994 and she applied for the post of lecturer against the advertisement 7/94 for the 3rd, 4th and 5th post and her name was recommended by the Commission for the 5th post of lecturer.
14. In my considered opinion therefore, Smt. Anjali Saran has rightly been given preference over Smt. Rita Kumari in appointment on the post of lecturer. As noticed above the Commission recommended the names of suitable candidates in order of merit and admittedly in the recommendation of the Commission the name of Smt. Anjali Saran was much above than Smt. Rita Kumari.
15. In the case of Chancellor v. Shankar Rao and others, 1999 (6) SCC 255 a similar question arose for consideration before the Supreme Court in respect of appointment for the post of Reader. In that State under Section 49 Sub-section (1) power of selection and recommendation has been vested with the Board of appointment. Section 49 (6) of the Kerela University Act 1976 reads as under.
“The Board shall interview, adjudge the merit of each candidate in accordance with the qualifications advertised and prepare a list of persons selected arranged in the order of merit. It shall forward the list to the Chancellor who shall make appointments in accordance with the same.
Explanation.–Nothing in this subsection shall be construed as requiring the Chancellor to make appointments in accordance with the list where he is of the opinion that it does not satisfy the provisions of this Act or the statutes relating to such appointments.”
16. Considering the aforesaid provision the Supreme Court observed:–
“Under Sub-section (6), therefore it is for the Board to interview and adjudge the merit of each candidate in accordance with the qualifications advertised. The Board also has to prepare a list of selected persons in the order of merit. Under Sub-section (6) the Chancellor is required to make appointments in accordance with the list so forwarded to, him by the Board. Ordinarily, therefore, the recommendations made by the Board would be binding on the Chancellor. The Explanation, however, gives to the Chancellor certain powers in connection with the list so submitted by the Board. It provides that if the Chancellor is of the view that the selection or the recommendation made by the Board does not satisfy any provision of the Act or the statues relating to such appointment, the Chancellor would not be required to make such an appointment. Therefore, if the candidate does not possess the minimum qualifications as prescribed by the statutes, the Chancellor can reject the name of such a candidate. However, if under the prescribed qualifications, there is a power given to the Board to relax the qualifications or to assess the qualifications, such as research experience, and judge whether it is of the requisite standard, the assessment so made by the Board would have to be accepted by the Chancellor because it is the Board which has the expertise to assess or evaluate such qualification.”
17. Similarly in the case of Jatinder Kumar and Ors. v. State of Punjab, AIR 1984 SC 1850 the question that came for consideration was whether a person selected by Sub-Ordinate Service Selection Board for direct appointment to the post of Assistant Sub-Inspector of Police has got an unfettered right to be appointed on the basis of recommendation made by the said Board. Answering the issue it was held that the establishment of an independent body like Public Service Commission is to ensure selection of best available person for appointment in post to avoid arbitrariness and nepotism in the matter of appointment. Their Lordship further held that the Government has to make appointment strictly adhering to the order of merit as recommended by the Public Service Commission. It cannot disturb the order of merit according to its own sweet will except for other good reasons. The Government also cannot appoint a person whose name does not appear in the list but it is open to the Government to decide how many appointments will be made. The process for selection and selection for the purpose of recruitment against the vacancies does not create the right to be appointed to the post which can be enforced by a mandamus.
18. Following the decisions of the Supreme Court this Court also considered a similar question arose for consideration in the case of Lal Bahadur Prasad v. Bihar College Service Commission, 2002 (1) JLJR 98 for appointment in the post of lecturer in Geography in the instant college namely Bokaro Manila College. In that case although the name of the writ petitioner was recommended by the Commission as first name on the third post and respondent No. 5 was second name against the third post but the respondent No. 5 was appointed Ignoring the name of the petitioner. Allowing the writ petition this Court held :–
“As per law and rules the Commission recommended two posts for appointment of lecturers and in order of preference the Governing Body was to make appointment as per the recommendation of the Commission. It is well settled that when the Commission or the Board selects a candidate in order of merit and appointment is to be made strictly in order of merits as recommended by the Commission, the authority cannot alter the order of merits except for valid reasons. Reference in this connection may be made to several decisions of the Supreme Court reported in AIR 1984 SC 1850, 1998 (7) SCC 104 and 1999 (6) SCC 255”.
19. Coming back to the instant case as noticed above the name of Smt. Rita Kumari was much below in the merit list and no candidate whose name appears below. Smt. Rita Kumari has been given appointment. In that view of the matter, I am of the opinion that since the respondents have filled up all the five posts of lecturer strictly in accordance with merit it cannot be held that such appointment has been made arbitrarily or against the law.
20. For the aforesaid reason no relief can be granted to these petitioners. Both the writ petitions are, therefore, dismissed.