IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.364 of 2008 IN (CWJC 8004/2000) Being aggrieved by and dissatisfied with the order dated 2.11.2007 in C.W.J.C. No.8004 of 2000 passed by Hon’ble Mr. Justice S. K. Katriar. ========================================================== = 1. Gov.Body,L.P.Shahi College through its Secretary, Patna. 2. Princiapal, L.P. Shahi College, Patna .... .... Appellant/s Versus 1. Smt.Seema Mishra wife of Sri Pramod Kumar Mishra, resident of Mohalla 205, Nehrunagar Post Office and Police Station, Patliputra Colony District-Patna. -------Petitioner-1st set respondent 2. Bihar College Service Commission through its Chairman, Boring Canal Road, Patna-1 3. The Secretary, Bihar College Service Commission Boring Canal Road, Patna-1----Respondent 2nd set .... .... Respondent/s ========================================================== = Appearance : For the Appellant/s : Mr. Anil Singh, Advocate For the Respondent no.1 : Mr. Rajesh Kumar Singh, Advocate For the Commission : Mr. Yugal Kishore Singh, Advocate ========================================================== = CORAM: HONOURABLE JUSTICE SMT. T. MEENA KUMARI and HONOURABLE MR. JUSTICE AKHILESH CHANDRA ORAL JUDGMENT (Per: HONOURABLE JUSTICE SMT. T. MEENA KUMARI) Patna High Court LPA No.364 of 2008 dt.30-06-2011 2 The present Letters Patent Appeal has been filed against the order dated 2.11.2007 passed in C.W.J.C. no.8004 of 2000 whereby the writ petition filed by the petitioner/respondent no.1 has been allowed directing the respondents to appoint the petitioner to the second post of Lecturer in the Department of Labour and Social Welfare in L.P. Shahi College, Patna, an affiliated college of Magadh University with notional benefits. The grievance of the respondent-petitioner was that she applied for one of the post of Lecturers in the Department of Labour and Social Welfare in pursuance of advertisement no.1 to 1085. She has undergone the process of selection conducted by the Bihar College Service Commission( hereinafter referred to as ‘the Commission’ ) and got her name figured in the recommendation made by the Commission for the second post. Further case of the respondent-petitioner was that she could find from the letters of recommended candidates that a direction was given to appoint one person from the recommendation of two names by the Commission although advertisement was for the two posts. The matter has been contested by the opposite parties. Learned single Judge has heard the matter extensively and has observed that the Commission intended to recommend two names against the two posts for the reason that the statement made in the counter affidavit by respondent no.4 would go to show that there is second post kept vacant Patna High Court LPA No.364 of 2008 dt.30-06-2011 3 and respondent no.4 has no objection in appointing the suitable candidate to the said post. Learned single Judge directed the appellants-respondent to appoint the respondent- petitioner to the Department of Labour and Social Welfare but, however, with the conditions that she will be entitled to the raised salary with added increment etc. which would have fallen due to her from the date Dr. Siyaram Sharma and other persons, whose names figured in the list, joined till the date the respondent-petitioner joins. Aggrieved by such direction, Governing Body of L.P. Shahi college has represented through its Secretary by filing this L.P.A. It has been contended by the learned counsel appearing on behalf of the appellants-Managing Committee Governing Body that the direction of the learned single Judge is not in conformity with the recommendation of the Commission as it had not recommended the name of the respondents-petitioners for the second post. Hence, direction of the learned single Judge to appoint the respondents- petitioners could not be complied for the reason that the role of the Governing Body is very restricted with reference to the selection and appointment. Only at the behest of the recommendation of the Commission the Governing Body can appoint by making selection out of the names recommended by the Commission. It is also further argued that section 2(10) of the Bihar College Service Commission, 1976 makes it clear that in no case the Governing Body shall appoint a person Patna High Court LPA No.364 of 2008 dt.30-06-2011 4 who is not recommended by the Commission. Learned counsel for the respondents-petitioner has contended that the fact remains that name of the respondent- petitioner was recommended by the Commission as a second name against two posts which were advertised and the Commission under the provision under section 2(9) of the Bihar College Service Commission Act, 1976 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. In the absence of such recommendation and in view of the above provision, learned counsel appearing on behalf of the respondents- petitioner has contended that the Commissioner has violated the provision of sub clause 9 of section 2 of the Bihar College Service Commission Act, 1976 in not recommending the candidature of the petitioner-respondent for the second post available. It has also been contended that when two posts have been advertised and one of the posts being remained unfilled, it should be deemed that the Commission should have recommended the name in alternative. It is stated before us that as the Commission failed to comply the provisions of sub clause 9 of section 2 of the Act in not recommending the candidate for the second post which should be construed that the second post remained unfilled and deemed to be vacant Patna High Court LPA No.364 of 2008 dt.30-06-2011 5 post. It is also contended by referring a case ( Dr. Uma Kant Vrs. Dr. Bhika Lal Jain and others) reported in AIR 1990 SC 1402 that a candidate who has been placed in the reserve list can be filled up with a suitable post. Learned counsel has argued that in view of the provisions of sub-section 9 of section 2 of the Act, this Court can interfere with regard to the process of the recommendation as there is a mistake on the part of the Commission in not recommending the candidate for the second post. The above argument has been countered by the learned counsel appearing on behalf of the appellant on the ground that role of the Governing Body is very limited as they can appoint only a candidate who is recommended by the Commission and there appears no conformity with sub sections 9 and 10 of section 2 of the ‘ Act ’. Mr. Yugal Prasad, learned senior counsel appearing on behalf of the service commission has also fairly submitted before this Court that an error crept in recommendation of the Commission. When the post is available the Commission was asked to rectify such error and in most of the cases the Commission has explained such error and made statement before this Hon’ble Court with regard to the appointment of the respondent-petitioner. We have heard the learned counsel for the parties and perused the recommendation of the Commission as annexed as Annexure-R/3 which reads as follows :- Patna High Court LPA No.364 of 2008 dt.30-06-2011 6 Þfcgkj dkyst lsok vk;ksx] iVuk cksfjax dSuky jksM] iVuk & 800001 i= la[;k 593 xks0@fo0dk0l0vk0 iVuk] fnukad 15-6-99 izs’kd Jh egk izlkn >k] lfpo] fcgkj dkWyst lsok vk;ksx] iVuk lsok esa ea=h “kklh fudk; fo’k; %& foHkkx esa O;k[;krk dh fu;qfDrA vkids i= la[;k---------------------- fnukad ---------------- ---- ds izlax esa funs”kkuqlkj lwfpr djuk gS fd vkids dkWyst ds fy, Je ,oa lekt dY;k.k foHkkx esa O;k[;krk ------------------------------------ in vk;ksx ds foKkiu la[;k 315@94 esa foKkfir fd;k x;k FkkA vH;fFkZ;ksa ls lk{kkRdkj djus ds i”pkr~ ;g vk;ksx f”k{kd ds in ij fu;qfDr ds fy, v/keku Øe ls fuEukafdr vH;fFkZ;ksa dk uke vuq”kaflr djuk gSA c”krZs orZeku l= esa laca/ku izkIr gksA izFke in %& 1- Mk0 fl;kjke “kekZ & izFke 2- Jherh “kh[kk feJk & f}rh;Þ Perusal of the recommendation would go to show that name of the person Dr. Siyaram Sharma was recommended for first post and name of the respondent- petitioner was recommended for the second post. In absence of such recommendation by the Commission to the post available would show that the Commission has not followed the provisions of subsection 9 of section 2 of the Act and they violated the provision of sub-section 9 of section 2 of the Act in not recommending for appointment to every post. The provision as contained in sub-section 9 of section 2 of the Act would indicate that the Commission has got a mandatory duty to recommend the candidate with reference to the post advertised and in the present case the Commission Patna High Court LPA No.364 of 2008 dt.30-06-2011 7 recommended candidate only for one post meaning thereby the Commission has failed in its duty in recommending the candidate for the posts which were advertised and which were available. There is no reliance placed before this Court that the posts have been filled up. In view of the law laid down by the Apex Court, this Court holds that if the name of the respondent-petitioner appears as recommended at no.2, even though it is said for the first post, in view of the availability of the second post which remained vacant can be filled up when future vacancy will be created. In the circumstances, it cannot be said that selection of the respondent-petitioner in the reserve list for the second post has got exhausted and she cannot claim the second post. In view of the fact that the Commission has violated the provision of sub-section 9 of section 2 of the Act in not recommending the names of the persons for the second post and following the law laid down by the Apex Court in the case of Km. Neelima Misra Vrs. Dr. Harinder Kaur Paintal and others, reported in AIR 1990 SC 1402, we are of the opinion that the Commission has failed to do his duty in not recommending the names of the persons for the second post and as the name of the petitioner-respondent has found figured as second candidate, it should be construed that her name should be considered for the second post available with the appellant-college of the University. Patna High Court LPA No.364 of 2008 dt.30-06-2011 8 In the above circumstances, we are of the opinion that the order of the learned single Judge needs no interference and accordingly the Letters Patent Appeal stands dismissed. The Patna High Court, 30th June, 2011 Sudip/NAFR ( T. Meena Kumari, J.) ( Akhilesh Chandra, J. )