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Arbind Kumar Pandey vs Kameshwar Singh Darbhanga … on 20 December, 2002

Patna High Court
Arbind Kumar Pandey vs Kameshwar Singh Darbhanga … on 20 December, 2002
Equivalent citations: 2003 (51) BLJR 416
Author: C K Prasad
Bench: C K Prasad


JUDGMENT

Chandramauli Kr. Prasad, J.

1. This application has been filed for issuance of a writ in the nature of mandamus commanding respondent No. 4 to appoint the petitioner to the post of Principal, Mahanth Shatanand Giri Harihar Sanskrit Mahavidyalaya, Bodh Gaya and also to restrain respondent No. 5 from functioning as the Incharge Principal of the said Mahavidyalaya. By way of amendment petitioner has further prayed to quash the communication dated 28-8-2002 (Annexure-31)

whereby the University in pursuance of the decision of the Senate had communicated to the Governing Body that petitioner is not eligible to be appointed as Principal because he is not a teacher in Sanskrit subject.

2. According to the petitioner, he was appointed as Lecturer in History by the Governing Body of Mahanth Shatanand Giri Harihar Sanskrit Mahavidyalaya (hereinafter referred to as the College) by order dated 11-11-1986 and in pursuance thereof he joined the College on 18-11-1986. The College Service Commission (hereinafter referred to as the Commission) granted concurrence to his appointment with effect from the date of his joining. The Governing Body of the College sent requisition to the Commission for making recommendation tp the post of Principal of the College. In pursuance of the aforesaid requisition the Commission issued advertisement No. 194 of 1998 inviting applications from the eligible candidates. In the advertisement the qualification prescribed for the post of Principal was as follows:–

“A first or high second class Master’s Degree or equivalent Degree of a Foreign University with consistently good academic record and not less than twelve years teaching experience at least as lecturer in the Degree College/ University Department.

Provided that the requirement of first class to high second class Master’s Degree for appointment of the post of Principal may be relaxed to have second class Master’s Degree in the case of a teacher, who apart from obtaining his own Ph. D. degree has successfully guided research work leading to he award of Doctorate degree or has published, considerable research work in the standard journal beyond what he did for the Doctorate degree.

Provided further that this relaxation shall be available to pre- 1977 appointees only.”

3. In pursuance of the aforesaid advertisement petitioner as also Respondent No. 5 offered their candidatures. The Commission processed the application of the candidates and the petitioner, Respondent No. 5 and other candidates were called for interview. Both the petitioner as also Respondent No. 5 appeared at the interview and the Commission by its communication dated 3-1-2000 addressed to the Secretary of the Governing Body of the College recommended the name of two persons in order of merit in which the name of the petitioner finds place at SI. No. 1. However name of Respondent No. 5 has not been recommended. After the receipt of the recommendation of the Commission, petitioner wrote to the Secretary of the Governing Body of the College to appoint him to the post of Principal.

4. Separate counter affidavits have been filed on behalf of Respondents 1 to 3 and 4 to 6. Stand of Respondents 1 to 3 i.e. Kameshwar Singh Darbhanga Sanskrit University and its functionaries (hereinafter referred to as the University) is that the petitioner was appointed temporarily as lecturer in History in the College on 18-11-1986 and his appointment was permanently approved on 2-5-1997. The University had accepted the assertion of the petitioner that the Commission published advertisement for appointment to the post of Principal in the College and the name of the petitioner has been recommended by the Commission. Its further stand is that under Section 57-A of the Bihar State Universities Act, the appointment of teacher is to be made by the Government Body on the recommendation of the Commission

and the rule of the University to grant approval of the said appointment comes later. Its stand further is that after receipt of the resolution of the Governing Body in regard to the appointment to the post of Principal, the University shall take decision in regard to its approval. However, during the pendency of the writ application the University had communicated to the Governing Body that the petitioner is not eligible for being appointed as Principal as he is a lecturer in History and not a teacher in Sanskrit subject.

5. Stand of the Governing Body in its counter affidavit is that for appointment to the post of Principal, in view of the decision of the State Government in the department of education as contained in its resolution dated 18-10-1975, only a lecturer of Sanskrit and its allied subjects having 10 years teaching and 5 years administrative experience in an affiliated college can be appointed to the post of Principal of a Sanskrit College and the petitioner being never a teacher in Sanskrit cannot be appointed to the post of Principal. Its further stand is that the Governing Body never made recommendation for appointment of the petitioner to the post of Principal and hence recommendation of the Commission was not acted upon. Its further plea is that recommendation of the Commission is not binding on the Governing Body.

6. Plea of Respondent No. 5 in his counter affidavit is that for appointment to the post of Principal, 12 years teaching experience as permanent lecturer is required and the petitioner having been appointed as lecturer permanently on 2-5-1997, he does not possess required teaching experience for appointment to the post of Principal. Akin to the stand of the Governing Body his stand also is that the petitioner does not fulfil the requisite qualification as prescribed by the State Government in its resolution dated 18-0-1976 and the recommendation of the Commission is not binding on the Governing Body. His further plea is that he is eligible to be appointed as Principal and in fact functioning as incharge Principal since 1982. He has also taken an extreme stand that since College is not affiliated after 1979, recommendation of Commission is without jurisdiction.

7. I have heard Mr. M.S. Madhup for the petitioner, Mr. K.N. Choubey, Sr. Advocate for respondents No. 1 to 3, Mr. Sujit Kumar Sinha for respondent No. 4 and Mr. N.K. Sinha for respondent No. 5.

8. Mr. Choubey raises a preliminary objection in regard to the maintainability of the writ application in the fact of remedy before the Chancellor of the Universities under Section 9(4) of the Bihar State Universities Act, 1976 (hereiafter referred to as the Universities Act). He points out that Section 9 (4) of the Universities Act confers power on the Chancellor to annul any proceeding or order of the University and one of the prayers of the petitioner in this writ application is to quash the communication dated 28-8-2002, whereby the University in pursuance of the decision of the Senate had communicated to the Governing Body that the petitioner is not eligible to be appointed as Principal because he is not a teacher in Sanskrit subject, which can be very well gone into before the Chancellor in exercise of the power referred to above. He emphasises that when a statutory remedy is provided under the Act itself, exercise of jurisdiction under Article 226 of the Constitution of India is not called for. Mr. Madhup however submits that existence of an alternative remedy does not bar the jurisdiction of this Court. In the facts of the present case nothing prevents this Court from exercising jurisdiction under Article 226 of the Constitution of India. In support of his submission he has placed

reliance on large number of authorities. In view of the settled legal position I do no consider it expedient to refer to the authorities relied on by Mr. Madhup. It is well settled that existence of an alternative remedy is not a bar to the jurisdiction of this Court as has been said umpteen time, it is a rule of discretion and not of jurisdiction. All the respondents have filed their counter-affidavits. This application was filed as back as on 2-1-2001 and hence at such a distance of the time I am not inclined to dismiss it on the ground urged by Sri Choubey and relegate the petitioner to the remedy before the Chancellor. To put the record straight, it is relevant here to state that the petitioner had in fact approached the Chancellor of the University for the relief claimed in the present application but nothing tangible has been done.

9. There is yet another reason which persuades me not to dismiss the writ application on the ground of existence of the alternative remedy before the Chancellor. In the present application prayer of the petitioner is many fold. His prayer is for issuance of a writ in the nature of mandamus commanding the respondent-Governing Body to appoint the petitioner to the post of principal of the College as also for restraining respondent No. 5 from functioning as the Incharge Principal of the College, besides the prayer, to quash the communication of the University holding the petitioner to be ineligible for appointment to the post of Principal. I am of the opinion that in the writ application when several reliefs are claimed and the remedy is available only in respect of some of the reliefs, relegating the petitioner to such remedy shall be wholly inappropriate. Accordingly, I over rule the preliminary objection of Sri Choubey.

10. From the pleadings of the parties, the facts which emerge are that the petitioner was appointed by the Governing Body to the post of Lecturer in history by order dated 11-11-1986 and in pursuance thereof he joined on 18-11-1986. The Commission granted concurrence to his appointment with effect from the date of his joining. Petitioner is not a lecturer in the subject of Sanskrit or any other allied subjects, he is lecturer in History.

11. During the course of hearing of the writ application, Counsel appearing on behalf of the Governing Body had taken a stand that it had never made any requisition seeking recommendation of the Commission for appointment to the post of Principal but when one looks to the pleading of the Governing Body, there is no such plea. In fact in paragraph 6 of the counter-affidavit it has been stated as follows :

“That it is further said that the name of petitioner was not forwarded by the Governing Body of the college to the College Service Commission because he was not Sanskrit teacher of the College, hence the recommendation of College Service Commission was not acted upon”.

12. It is another thing to say that Governing Body did not forward the case of the petitioner than to say that it had not made any requisition for recommendation, The Commission has placed on record the file pertaining to the appointment to the post of Principal in the College, which contains the requisition as also the bank draft sent by it, so as to enable the Commission to make advertisement for appointment to the post. In fact the application of the petitioner has been forwarded by respondent No. 5, as the Acting Principal of the College. From the same what is also evident is that the petitioner as also respondent No. 5, applied for appointment and appeared at the interview and although name of the petitioner figures at SI. No. 1 of the merit list, the

name of respondent No. 5 does not find place at all.

13. Respondent No. 5 had also joined issue in respect of the date from which the petitioner shall be treated as Lecturer and according to him as the concurrence for his permanent appointment as Llecturer of the College was accorded by the Commission by letter dated 11-4-1997, service rendered by him as temporary lecturer prior to the said period is not fit to be counted. Neither the governing body nor the University had joined respondent No. 5 on this question. True it is that the petitioner was earlier appointed on temporary basis but later on, Commission gave concurrence to his appointment from the date his joining. Hence his experience will count from the date on which he joined i.e. 18-11-1986.

14. Another controversy raised by respondent No. 5 is that the College in question is not an affiliated college of the respondent-University and as such the Commission has no authority to make recommendation for appointment to the post of Principal. It is relevant here to State that the petitioner as also respondent No. 5 are working in the same college, the Governing Body of the College sent requisition to the Commission for making recommendation and pursuant to that Commission advertised the post. Respondent No. 5 forwarded the application of the petitioner. In pursuant thereof petitioner as also respondent No. 5 offered their candidature and in fact appeared in the interview. It is only after the Commission did not recommend the name of respondent No. 5 that it had chosen to take a plea that the College in question is not affiliated and hence petitioner cannot be denied relief on this ground.

15. There is serious controversy as regards the qualification required for appointment to the post of Principal. The plea of the petitioner is that appointment to the post of Principal shall be governed by the statute to be made for that purpose whereas the plea of the University, the Governing Body and respondent No. 5 is that qualification for appointment to the post of Principal has been provided by the State Government in its resolution dated 18-10-1976 and that governs the field. According to them besides other qualifications condition No. 6 thereof specifically provides that a teacher having experience of 10 years in Sanskrit subject shall only be eligible. Plea of the petitioner is that the same pertains to terms and conditions for grant of recognition to a Sanskrit College and not only that the clause which provides for teaching experience in Sanskrit has already been deleted by Resolution dated 22nd of June, 1977. In any view of the matter, petitioner contends that the decision of the State Government in respect of qualification prescribed for the purpose of granting recognition shall not govern the field.

16. It is relevant here to State that the State Government by its resolution dated 18th October, 1976 laid down terms and conditions for granting recognition to Primary Sanskrit Schools, Middle Sanskrit Schools, Secondary Sanskrit Schools, Higher Secondary Sanskrit School and Sanskrit Colleges. The said resolution is in five parts and Parts 1 to 4 pertain to Primary Sanskrit Schools (from Class I to VI), Middle Sanskrit Schools (Class VII to VIM), Secondary Sanskrit Schools (Class IX and X) and Higher Secondary Sanskrit Schools (XI and XII) whereas Part 5 pertains to Sanskrit Colleges of Shashtri Course of three years duration. Every part of the resolution had provided for terms and conditions for granting recognition to the Sanskrit Institution and it contains various clauses. It seems that it came to the notice of the State Government that conditions for granting recognition to the Sanskrit institutions was provided in the resolution of the State Government dated 18th of October, 1976 and order dated 21st September, 1976, hence by resolution dated 22-6-1977 Part (Kandika) 5 of resolution dated 18th October, 1976 was deleted. It is relevant here to State that Part 5 pertains to Sanskrit Colleges imparting three years Shashtri course and it consists of various classes from 1 to 7. Clause 6 (Ka) (1) provided for qualification for appointment to the post of Principal whereas Clause 5 provided for recognition fee of Rs. 2000/-.

17. Petitioner contends that entire Part 5 of resolution dated 18th of October, 1976 has been deleted whereas plea of respondent Nos. 4 and 5 is that it is only Clause 5 which provides for recognition fee of Rs. 2000 which has been deleted. From a plain reading of resolution dated 22nd June, 1977 it is evident that there were two decisions of the State Government in connection with the conditions for grant of recognition and part 5 of the said resolution has been deleted. In this connection reliance of the respondents on the authority of this Court in the case of S.V.S. Mahavidyalaya v. K.S.D.S. University, 2001 (1) PLJR 601, is absolutely misplaced, In the said case it has been held as follows :

“Now I would consider the question as to whether resolution No. 2261 dated 18-10-1976 still survives or stands deleted/repealed by reason of resolution No. 857 dated 22-6-1977. From, perusal of the said resolution, copy whereof has been enclosed as Annexure-24 to the amendment petition, it appears that the decision to delete the relevant part of resolution dated 18-10-1976 with respect to Sanskrit Colleges as contained in Part 5 was taken on the premise that two inconsistent resolutions with respect to non-government Sanskrit Colleges had been issued one as contained in resolution No. 2261 dated 18-10-1976 and the other letter contained in letter No. 3276 dated 21-9-1976. The Government by resolution dated 22-6-1977 decided to delete the latter i.e. resolution dated 18-10-1976. The point for consideration is as to what is the effect of resolution dated 22-6-1977”.

18. Thereafter this Court proceeded to consider as to what is the effect of resolution dated 22-6-1977 and finding no conflict in respect of the students strength in the decision of the State Government dated 21-9-1976 and resolution dated 18-7-1976 observed that under misconception whole Part 5 of resolution dated 18-7-1976 was deleted. It is also observed that the object of the resolution dated 22-6-1977 was to do away with the conflict and there being no conflict as such regarding the students strength as contained in Clause No. 7 in part 5, same did not stand deleted, Here in the present case resolution dated 21-9-1977, while fixing the terms and conditions for granting permanent recognition it had provided that teachers strength shall be duly filled by eligible persons. Resolution dated 21-9-1976 had not provided for any qualification for appointment to the post of Principal and as such in my opinion condition for qualification for appointment to the post of Principal by resolution dated 18th October, 1976 stands deleted.

19. Mr. Madhup appearing on behalf of the petitioner submits that notwithstanding the fact that Part 5 of resolution dated 18-10-1976 has already been deleted but even in case it is held that it is not so, the condition prescribed shall not hold the field whereas learned Counsels representing the respondents have submitted that the condition put forth by the State Government for grant of recognition shall govern the field. Aforesaid submission requires examination of the scheme of the Universities Act.

20. It is common ground that respondent-University is governed by the Universities Act and the College in question is an affiliated college of the University. Section 59 thereof, which is relevant for the purpose is being quoted below :

“59. Relation of affiliated College with the University. The relations of the affiliated Colleges with the University shall be governed by the Statutes to be made in that behalf, and such Statutes shall provide in particular for the exercise by the University of the following powers in respect of the Colleges affiliated to the University :

(1) to lay down minimum educational qualifications for the different classes of teachers and tutorial staff employed by such Colleges;

(2) to approve the action taken by the governing bodies of such colleges in regard to creation of posts of teachers, their appointments, dismissal, discharge, removal from service, termination of service and determination of term of post and to approve the deputation of teachers to the Intermediate College dilinked from the affiliated College.”

From a plain reading of Section 59 of the Universities Act it is evident that the relation of the affiliated College shall be governed by the Statute of be made in that behalf and the law enjoins for framing Statute in respect of minimum educational qualification for the different classes of teachers and tutorial staff employed by affiliated college. Section 2 (v) defines “Teacher” to include Principal also and in that view of the matter the minimum educational qualification for Principal of affiliated college has to be provided by the Statute. It is relevant here to state that resolution dated 18-10-1976 had provided for terms and conditions for grant of recognition by the State Government to the Sanskrit institution but the college in question being an affiliated college, it shall be governed by the Universities Act. Section 59 of the Universities Act referred to above in specific terms provides that the relation of the affiliated college with the University shall be governed by the Statute to b.e made in that behalf. Said provision also mandates minimum educational qualification for different classes of teachers and tutorial staff employed by the College, The Statute so framed had provided for minimum qualification for the post of Principal. Hence, I am in agreement with Mr. Madhup that the Statute prescribing qualification shall govern the field. The qualification prescribed for appointment to the post of Principal in an affiliated degree college has been provided in the Statute which reads as follows :

(d) Principal

Minimum Qualifications
“A first or high second class Master or equivalent degree of a foreign University with consistently good academic record and not less than twelve years teaching experience, at least as a lecturer in a Degree College/University department.”

21. The qualification prescribed in the advertisement had been quoted in the preceding paragraph of the judgment. Petitioner’s assertion which has not been denied by the respondents that he possesses the qualification for appointment to the post of Principal as mentioned in the advertisement of the Commission as also the Statute. Thus I have no option that to hold that the petitioner possesses the qualification provided in the Statute and mentioned in the advertisement but that does not end the controversy.

22. Learned Counsels for the respondents contend that qualification prescribed in the Statute or the advertisement has to be read to mean that in a Sanskrit College, candidate must have experience either in Sanskrit or in allied subject. In support of their submission reliance has been placed on a decision of this Court in the case of Dr. (Mrs.) Annapurna Dew v. State ofBihar, (1997 (1) PUR 965) rendered by B.P. Singh, J. as he then was on difference between the Judges constituting the Division Bench and my attention has been drawn to paragraph 11 of the judgment which reads as follows :

“The learned Advocate General very candidly and unhesitatingly submitted that a person could not be appointed the Principal Of a College which conducted teaching in a particular subject only, unless he had the requisite qualification and experience of teaching that very subject. Accordingly, he submitted that the Principal of a Law College must be a teacher, who had the requisite educational qualification in law as a subject, and also experience of teaching that subject. A person who had the requisite qualification and experience in another such a History or Physics could not be appointed a Principal of the Law College. The submission itself highlights the fact that the post of Principal is not a mere administrative post, but is connected with the knowledge and teaching of that subject. It is, therefore, that the Principal of a Law College must be teacher of Law and not a teacher of any other subject. One cannot also ignore the realities of the situation. Even for the discharge of administrative duties, knowledge of the subject is essential, and a Principal of a Law College, without any knowledge of the subject, and obviously without any teaching experience in that subject, cannot effectively discharge his duties as a Principal of the College. The same can be said of other factualities. It is no doubt true that this will not hold good in the case of institutions where more than one subject is taught and in such cases the Principal must possess the requisite qualification and experience in any of the subjects taught in the College. Aftab Alam, J., has rightly emphasised this aspect of the matter in his opinion, and I find myself in complete agreement with him. It is difficult to conceive of a Principal of a College who has no knowledge of the subject taught in the College of which he is the Principal. It was, perhaps, for this reason that the advertisement, issued by the Commission referred to the posts of Principal faculty-wise and not College-wise.”

23. Mr. Madhup, however, submits that for appointment to the post of Principal in Sanskrit institution a candidate must possess the requisite qualification and experience in one of the subjects taught in the College. He points out that the petitioner is a lecturer in the College itself in the subject of History for which the Commission had recommended his name for the post of Principal. He emphasises that History is one of the subjects taught in the College and hence petitioner is eligible to be appointed and the Commission rightly recommended his name,

24. Having appreciated the rival submission, I find substance in the submission of Sri Madhup. Petitioner is a lecturer in History in the College in question and History is one of the subjects, which is taught in the college. Thus it cannot be said that the petitioner is a lecturer in a subject which is not taught in the college in question Thus I bold that the petitioner is eligible to be appointed to the post of Principal. The decision of this Court in the case of Dr. (Mrs.) Annapurna Devi (supra), instead of supporting the case of the petitioner clearly goes against him. In the said case it has been held that in the cases of colleges where more than one subjects are taught a person appointed as a Principal must possess the requisite qualification and experience in any of the subject taught in the College, which would be evident from paragraph 12 of the judgment which reads as follows :

“….. In the cases of Colleges where more than one subject is taught, a person appointed as a Principal must possess the requisite qualification and experience in any of the subjects taught in the College. However, in Colleges where only one subject is taught, he must have the necessary qualification and experience to teach that subject. In other words, a person cannot be eligible or qualified to hold the post of Principal, if he does not possess the requisite qualification and experience in any of the subjects taught in that College/faculty.”

As stated earlier, prayer of the petitioner is to issue a writ in the nature of mandamus commanding the Governing Body to appoint the petitioner to the post of Principal. This prayer necessarily requires decision on the question as to whether Governing Body is bound by the recommendation of the Commission and obliged to appoint the petitioner to the post of Principal. Section 57-A of the Universities Act, inter alia, provides for the manner in which appointment of teachers of affiliated colleges shall be made. Section 57-A (1) which is relevant for the purpose reads as follows :

“57-A (1). Appointment of teacher of affiliated Colleges not maintained by the State Government shall be made by the Governing Body on the recommendation of the College Service Commission. Dismissal, termination, removal, retirement from service or demotion in rank of teacher of such colleges shall be done by the Governing Body in consultation with the College Service Commission in the manner prescribed by the Statutes :

Provided that the Government Bodies of affiliated minority Colleges based on religion and language shall appoint, dismiss, remove or terminate the services of teachers or take disciplinary action against them with the approval of the College Service Commission :

Provided further that the advice of the College Service Commission shall not be necessary in cases involving censure, stoppage of increment or crossing of efficiency bar and suspension till investigation of charges is completed.”

25. Section 2 of Bihar College Service Commission Act inter alia, provides for establishment of a College Service Commission and its powers and functions in relation to the appointment of teachers of the affiliated colleges and Intermediate, colleges. Section 2 (7) to (10) of the Bihar College Service Commission Act which is relevant for the purpose reads as follows :

2. Establishment of a College Service Commission for the appointment of teachers of the affiliated colleges and Intermediate Colleges and its powers and functions.-

xxx xxx

(7) Subject to the approval of the University, appointments, dismissal, removals, termination of service or reduction in rank of teachers of affiliated colleges and Intermediate Colleges shall be made by the Governing Body of the College on the recommendation of the Commission.

(8) In making recommendations for appointment to every post of teacher of any affiliated college, and Intermediate College the Commission shall have the assistance of such experts and shall be governed by such conditions as have been laid down in Section 57 of the Bihar State University 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 therefor. 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 recommendation 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.”

26. From a conjoint reading of the aforesaid provisions it is evident that appointment to the post of teachers in affiliated colleges is required to be made by the Governing Body on the recommendation of the Commission. The Commission is obliged to recommend the names of two persons in order of preference to every post of teacher and the Governing Body is obliged to make selection out of the names recommended by the Commission. Under the scheme of the Act in no case Governing Body can appoint a person who has not been recommended by the Commission and it has to consider the recommendation within three months from the date of its receipt. The Governing Body has not taken any decision on the recommendation. Its plea that it had not forwarded the name of the petitioner has been found to be erroneous on fact. In any view of the matter, name of the petitioner having been recommended by the Commission, the Governing Body is under an obligation to consider his case for appointment as Principal. I may observe that when the Commission finds any person eligible, its recommendation cannot be treated lightly and be tinkered on the purported plea that the recommendee does not possess the requisite qualification. In my opinion, in case the Governing Body bona fide is of the opinion that the person recommended is not eligible for appointment, nothing prevents it from seeking review/judicial review of such recommendation. From what has been stated above, it is apparent that the Governing Body has not carried out its legal obligation. The view which I have taken finds support from a Division Bench judgment of this Court in the case of Dr. Shiv Narain Yadav and Ors. v. The State of Bihar and Ors., (2001 (2) PLJR 817) and paragraph 15 thereof, which is relevant for the purpose, is being quoted below :

“A perusal of the provisions contained under the Act, it is clear that when the Act was enacted the appointment of teachers and officers in the University was to be made by the Bihar Public Service Commission and the appointment of such teacher for whom no separate provision was made in the Act, was to be made on the recommendation of the Bihar University Service Commission. In 1976, the Commission Act came which contained a specific provision that only mode of appointment of teachers of the affiliated colleges is on the basis of the recommendation of the Commission. The Act was also amended in 1982 and 57-A was brought on the statute book containing similar provision as contained

in the Commission Act that the appointment has to be made on the basis of the recommendation of the Commission.”

27. The recommendation made by the College Service Commission is statutory in nature and the Governing Body is to act according to the recommendation of the Commission. The law has cast obligation on the Governing Body to consider the recommendation within a fixed time and hence the Governing Body is obliged to act upon it, which unfortunately it has not done so. Reference in this connection can be made to a decision of this Court in the case of Dr. Sunil Kumar Jha v. The State of Bihar and Ors., (2002(4) PLJR 631) and paragraph 8 thereof which is relevant for the purpose reads as follows :

“In the aforesaid circumstances, the Governing Body had no option but to appoint the petitioner on the basis of the preference, as recommended by the Commission and had no discretion to choose the second nominee. There is nothing specific on record to suggest that the petitioner was found otherwise not suitable in comparison to the second nominee. The recommendation made by the College Service Commission is statutory in nature under Sub-section (9) and (10) of Section 2 of Bihar College Service Commission Act, 1976 and, therefore, it was binding upon the Governing Body to Act according to the recommendation of the Commission. The decision taken by the Governing Body of the College appointing respondent No. 8 to the post of Lecturer in Sanskrit, therefore, must be held to be without jurisdiction.”

28. From the discussions aforesaid, I am of the opinion that the petitioner has made out a case for issuance of writ in the nature of mandamus. The Governing Body of the College is hereby directed to consider the recommendation of the Commission in its next meeting or within six weeks, whichever is earlier. It shall send its recommendation to the University within one week thereafter, and the University in its turn shall consider giving approval within four weeks from the date of receipt of the communication of the Governing Body.

29. It is disturbing to note that respondent No. 5 who was also a candidate for appointment to the post of Principal and had not been recommended by the Commission is still functioning as the Incharge Principal of the College in question and the petitioner who has been so recommended is out of office. Hence, I hereby restrain respondent No. 5 to function as Incharge Principal forthwith.

30. In the result, the application is allowed and the respondents are directed to act in accordance with the observation made above. There will be no order as to costs.

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