CIVIL WRIT JURISDICTION CASE No.10185 OF 1995 In the matter of an application under Articles 226 and 227 of the Constitution of India. RAM KRISHNA PRASAD SINGH, S/o Sri Ram Balak Singh resident of village Mohanpur, P.S. Begusarai, Mufasill, District Begusarai at present Reader in the Department of Political Science, D.B.K.N. College, Narhan, Samastipur. --------- Petitioner Versus 1. THE STATE OF BIHAR. 2. The Hon,ble Chancellor, Bihar Office at Raj Bhavan. 3. Lalit Narayan Mithila University, Darbhanga. 4. The Vice Chancellor, L.N.M.U., Darbhanga. 5. The Registrar, L.N.M.U., Darbhanga. 6. The Principal, Dewan Bahadur Kameshwar Narayan Mahavidyalaya, Narhan. 7. Jadunandan Prasad S/o Munna Mahto resident of village Singhiaghat (Shivnathpur), P.S. Bibhutipur, District- Samastipur. ---------- Respondents. For The Petitioner :KAUSHAL KUMAR JHA For The Respondent :(SC7) P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN S.A. Khan, J. The controversy which has arisen in this case relates to whether the recommendation of the University Service Commission (hereinafter referred to as the ‘Commission’) for appointment of Lecturers would be binding on the Governing Body of the College. Respondent no. 7 was recommended by the Commission for the post on 30.8.1974 and the petitioner was recommended for the second 2 post. While making the recommendation, the Commission has specified that the recommendation is being made in order of merit. After the recommendation was made, the Governing Body took a decision by resolution dated 9.12.1974 and shifted the petitioner to the first post for the reason that the petitioner was appointed on temporary basis earlier to respondent no. 7 in the said college. It has also been stated that the qualifications of the petitioner are higher to the qualifications of respondent no. 7 and thus the petitioner by annexure-7 was recommended on the first post as a Lecturer in Political Science in D.B.K.N. College, Narhan, Samastipur. The petitioner was issued appointment letter on 2.1.1975. D.B.K.N. college, Narhan, Samastipur became a constituent unit of Lalit Narayan Mithila University, Darbhanga in the year 1981. After the College became constituent, Lalit Narayan Mithila University, Darbhanga was pleased to continue the services of 6 Lecturers including respondent no. 7. Respondent no. 7 filed a writ application for 3 quashing the order dated 2.1.1975 of the D.B.K.N. College, Narhan, Samastipur by which the Governing Body have purported to appoint the petitioner a temporary Lecturer on permanent basis subject to the approval of the Lalit Narayan Mithila University and the Government of Bihar. The ground for challenge was that respondent no. 7 claimed that he was recommended by the Commission as the first man in order of merit whereas the College had shifted the petitioner on the first post in the Department of Political Science. The writ application was withdrawn with leave to the petitioner i.e. Yadunandan Prasad (respondent no. 7) to move the Syndicate for redressal of his grievances. Subsequently, the petitioner was promoted to the post of a Reader by a notification dated 27.2.1987. The matter remained pending before the Chancellor for approval of the appointment of Sri yadunandan Prasad, Lecturer in Political Science until it was finally disposed of. The order was communicated on 30.9.1995 holding therein that the Chancellor is pleased to direct that 4 Sri Yadunandan Prasad be shifted to the first post w. e. f. the date of recommendation i.e. 30.8.1997. The University has filed its counter affidavit supporting the decision of the University to accept the recommendation of the Commission. From the affidavits filed on behalf of the University and respondent no. 7, it appears that a Committee was constituted to examine the claims of the petitioner and respondent no. 7 and after examining the entire documents, the University disapproved the proposal of the Governing Body appointing the petitioner against the first vacant post in the Department of Political Science. After withdrawal of the writ application, the respondent no. 7 has raised his grievances before the Syndicate of the University but the matter remained unresolved. Ultimately, respondent no. 7 filed a representation before the Chancellor alleging that the petitioner’s initial appointment itself was Ab initio void. The Vice-Chancellor authorized the Co-ordinator College 5 Development Council of the University to look into the grievances of the respondent no. 7 and the Co-ordinator after going through the records submitted a report to the Vice- Chancellor which has been annexed as R/7-E. In the said report dated 6.9.1991, the Co- ordinator has come to the conclusion Meri anushansa hai ki Sri yadunandan Prasad avam Ram Krishan Prasad ki niyuktiya kramshah 30.8.1994 avam dwitiya pad srijan ki tithi se maankar inhe tadanukul pronnati avam vetan nirdharan ka laabh diya jana chahiye. In fact, the report sent by the Registrar of the Lalit Narayan Mithila University to the O.S.D. (ii), Governor Secretariat, Raj Bhawan is very damaging to the case of the petitioner as it has been found that the resolution of the ad hoc Committee was fake and forged. The matter was again sent to the Governing Body by the University on 30.6.1977 and 13.10.1977 again the petitioner was placed in the first post whereas the respondent no. 7 was held to be the second nominee. The second post was created in anticipation of the approval of the 6 University/State Government. On the facts aforesaid, the Chancellor has come to the conclusion that the respondent no. 7 should be appointed against the first post as was recommended by the Bihar College Service Commission. I have stated the facts in some detail as it has been argued that the Governing Body of the College has the power to make its selection out of the names recommended by the Commission under Section 10 of the Bihar College Service Commission Act, 1976 (hereinafter referred to as the ‘Act’). Section 10 of the Act has to be read along with Section 9 of the Act. Section 9 of the Act reads as follows: 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 recommendation by the Commission. 7 Whereas Section 10 of the Act reads as follows: 10. In making any such appointment the Governing Body of the College shall, within three months from the date of the receipt of the recommendation under Sub Section (9), make its selection out of the names recommended by the Commission, and in no case shall the Governing Body appoint a person who is not recommended by the Commission. There is no doubt that Section 10 empowers the College to select one of the names as recommended by the Commission. It is ordinarily expected that the College would recommend the name of the person who has been ranked higher in merit by the Bihar College Service Commission while making the selection. Any departure from the recommendation of the Commission should be for valid and substantive reasons. Mr. Tarakant Jha appearing on behalf of the petitioner argued that the order of the Governing Body issued vide annexure-7 dated 9.12.1974 gives reasons for choosing 8 the petitioner against the first sanctioned post, and according to Mr. Jha the reasons are valid. However, during subsequent enquiry the Registrar of the University has found that the resolution of the ad hoc Committee was fake and forged and as such the Governing Body was directed to hold another meeting which was held on 3.10.1977. Apart from which the enquiry report dated 6.9.1991 has also gone into the matter and come to similar findings which also include the finding that the appointment of the petitioner in 1971 on ad hoc basis has also been doubted. The counsel for the parties have referred to several judgments on this issue including an unreported judgment of this Court. The petitioner has referred to 2001(1) P.L.J.R. 651 in the case of Vidya Shankar Singh Vs. B.R. Ambedkar Bihar University & Ors. wherein it has been held that the recommendation of the Commission would not be binding on the Governing Body if the Governing Body reverses the recommendation of the Commission it should be 9 approved by the Chancellor. It has further been held that as the Governing Body is competent to differ from the Commission, however such difference should be based on cogent grounds. Similar principles were laid down in a case reported in 2002(4) P.L.J.R. 631 in the case of Dr. Sunil Kumar Jha Vs. The State of Bihar & Ors. wherein the Court has held that the Governing Body could not have appointed candidate placed at no. 2 in place of petitioner who was at no. 1 unless there were good reasons for doing so and remitted the matter back to the Governing Body to take a decision in the matter. In the present case although reasons have purportedly been assigned by the Governing Body for reversing the decision of the Commission, the reasons have been found to be non est on enquiry and after considering the representations and documents filed both by the petitioner and the respondents, it cannot be said that the order of the Chancellor reversing the finding of the Governing Body was unreasonable and in violation of the Rules and Regulations. With 10 respect to the finding of the University and the Co-ordinator that the appointment of the petitioner was fake and forged no specific finding has been given by the Chancellor or the University to the detriment of the petitioner, perhaps in view of the fact that the petitioner has retired and in fact there is no challenge to his initial appointment. The other valid reason is that the matter is very old and remained pending for more than a decade despite the fact that respondent no. 7 had filed a representation before the Chancellor of the University and despite the fact that there was an order of the High Court giving leave to the petitioner to represent his case before the Syndicate. Under the circumstances and for the reasons mentioned aforesaid, I do not find any illegality in the order dated 30.9.1995. As a result this writ application is dismissed. No order as to costs. Patna High Court, January, 7th , 2009 Sanjay/A.F.R. (Sheema Ali Khan, J.)