JUDGMENT
Narayan Roy, J.
1. Heard Counsel for the parties.
2. By this writ application, the petitioner has questioned the recommendation of the Bihar College Service Commission (hereinafter referred to as “the Commission”) whereby and whereunder name of the petitioner alone has been recommended for appointment to the post of Principal in Thakur B.D. Sinha Janta College, Akauna, Goh, Aurangabad (hereinafter referred to as “the College”).
3. Learned Counsel for the petitioner submits that the recommendation made by the Commission is wholly without jurisdiction and must be held to be arbitrary inasmuch as single name of respondent No. 7, Bhola Nath Singh, was recommended for appointment to the post of Principal of the College. It is further submitted that under Sub-section (9) of Section 2 of the Bihar College Service Commission Act, it was mandatory for the Commission to recommended names of two persons in order of preference for the post of Principal and since only one name has been recommended by the Commission, the recommendation is not sustainable. Learned Counsel, besides this, also submitted that he petitioner was better qualified than respondent No. 7 and respondent No. 7 had no requisite qualification, as prescribed in the advertisement issued by the Commission. Earned Counsel further submits that the Secretary of the Governing Body of the College subsequently cancelled appointment of respondent No. 7 on 8.10.2000 and communicated the same to the Secretary of the Commission and, therefore, the recommendation of the Commission for all practical purposes has become inoperative.
4. Mr. Rajendra Prasad Singh, learned Senior Counsel for respondent No. 7, however, submitted that the petitioner being an unsuccessful candidate cannot maintain this writ application as he had appeared in the Interview Board for interview before the Commission and he was not found eligible and the name of respondent No. 7 alone was recommended for appointment to the post of Principal. In support of his proposition, earned Counsel relied upon the case of Pravin Kumar Thakur and Ors. v. State of Bihar and Ors. 1999 (3) PLJR 929. Earned Counsel further submitted that the petitioner had no legal right to ask for issuance of a writ inasmuch as that his name was never recommended by the Commission for appointment to the post of Principal and a right is created upon a person only when his name is recommended by the Commission according to the statutes. In this regard earned Counsel has further placed reliance upon a decision of the Supreme Court in the case of Dr. Rai Shivendra Bahadurs Governing Body of the Naianda College, Bihar Sharif and Ors. . Besides this question, Mr. Rajendra Prasad Singh, learned Counsel, with reference to argument of the earned Counsel for the petitioner that appointment of respondent No. 7 has been cancelled by the Secretary of the Governing Body, submitted that the order of cancellation passed by the Secretary of the Governing Body of the College has no legal entity in the eye of law in view of, the provisions as laid down under Section 57(A) of the Bihar State Universities Act, 1976.
5. The fact that respondent No. 7 was the sole nominee of the Commission for the post of Principal of the College in question is not in dispute. It is also not in dispute that pursuant to the recommendation of the Commission, respondent No. 7 was appointed by the Secretary of the Governing Body to the post of Principal. Now the question arises as to whether the petitioner whose name was not recommended by the Commission for the post of Principal can maintain this writ application.
6. In the case of Pravin Kumar Thakur and Ors. v. State of Bihar and Ors. (supra), the learned Single Judge of this Court, considering the ratio laid down in the cases of I.L Honnegouda v. The State of Karanataka and Ors. AIR 1978 Supreme Court 28; Om Prakash Shukla v. Akhilesh Kumar Shukla and Ors. and University of Cochin v. N.S. Kanjoonjamma and Ors. , held that a candidate having taken a chance to appear at the examination and was declared unsuccessful, the selection process cannot be allowed to be challenged by such candidate. Again in the case of Dr. Rai Shivendra Bahadur v. Governing Body of the Naianda College, Bihar Sharif and Ors. (supra), the Apex Court faced with the similar situation held:
A great deal of controversy was raised before us as to whether the Statutes framed by the University under Section 20 of the University of Bihar Act have or have not the force of law and whether a writ under Article 226 of the Constitution can issue against the Governing Body of the College i.e. whether the appellant has a legal right to the performance of a legal duty by the respondents. In order that mandamus may issue to compel the respondents to do something it must be shown that the Statutes impose a legal duty and the appellant has a legal right under the Statutes to enforce its performance. It is, however, wholly unnecessary to go into or decide this question or to decide whether the Statutes impose on the Governing Body of the College a duty which can be enforced by a writ of mandamus because assuming that the contention of the appellant is right that the College is a public body and it has to perform a public duty in the appointment of a Principal, it has not been shown that there is any right in the appellant which can be enforced by mandamus. According to the Statutes all appointments of teachers and staff have to be made by the Governing Body and no person can be appointed, removed or demoted except in accordance with Rules but the appellant has not shown that he has any right entitling him to get an order for appointment or reinstatement. Our attention has not been drawn to any article in the Statues by which the appellant has a right to be appointed or reinstated and if he has not that right he cannot come to Court and ask for a writ to issue. It is, therefore, not necessary to go into any other question.
7. The petitioner admittedly is the unsuccessful candidate inasmuch as his name was not recommended by the Commission and, therefore, this writ application at his behest would not be maintainable. The submission of the earned Counsel for the petitioner that appointment of respondent No. 7 subsequently has been cancelled does not appear to be convincing as no material has been brought on record to show that the action of the Secretary cancelling appointment of respondent No. 7 has been consented to by the Commission under the provisions of Section 57(A) of the Bihar State Universities Act.
8. Sub-section (2)(a) of Section 57-A of the Bihar State Universities Act contemplates:
(2) Recommendation for the appointment of teachers of colleges shall be made in accordance with the following provisions:
(a) College Service Commission shall give its consent/recommendation for the appointment, dismissal or termination etc. of teachers of affiliated colleges till the date of their being made constituent colleges. Its consent/recommendations shall be deemed valid only till that date.
9. In view of this provision noticed above, the order of cancellation, if any, has no legal entity and it cannot be acted upon.
10. For the reasons aforementioned and in view of the legal provisions noticed above, I do not find any merit in this application. It is, accordingly, dismissed.