IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3156 of 2001 Smt. Shikha Lal Wife of Sri R.D.Maldayav, at present Principal, M.N.M. College,Bettiah, West Champaran ….. Petitioner Versus 1. State of Bihar, 2. Bhim Rao Ambedkar, Bihar University, Muzaffarpur through its Registrar. 3. Vice-Chancellor, Bhim Rao Ambedkar, Bihar University, Muzaffarpur. 4. Director, Higher Education, Human Resources Development Department, Govt. of Bihar, New Secretariat, Patna. 5. The District Magistrate, West Champaran, Bettiah. 6. Dr. Kamta Pd. Yadav, S/o not known Lecturer Ram Lakhan Singh Yadav College, Bettiah. 7. Smt. Shail Kumari Verma W/o not known c/o Dr. Kamta Prasad Yadav, Lecturer, Ram Lakhan Singh Yadav College, Bettiah, West Champaran. 8. Managing Committee of M.N.M. Mahila Mahavidyalaya through Smt. (Dr.) Mahamaya Verma, Secretary of the Managing Committee, Bettiah, West Champaran. …….Respondents ----------- 9/ 10.04.2009 Heard learned counsel for the petitioner, learned counsel for the Bhim Rao Ambedkar Bihar University and the learned counsel appearing on behalf of the Managing Committee of the M.N.M Mahila Mahavidyalaya (hereinafter referred to as the „College‟) through its Secretary respondent no.8. None appears on behalf of the respondent no.6, claimant for the post of Secretary of the rival Managing Committee and for the competing private candidate respondent no.7. Notice issued by ordinary process to respondent nos. 6 and 7 have been validly served and they have also entered appearance through counsel on 11.6.2001. Advertisement no.978 of 1994 was issued by the erstwhile Bihar College Service Commission for appointment on the post of - 2 - Principal in the aforesaid college stated to be affiliated to the Bhim Rao Ambedkar Bihar University. In pursuance of the selection, the Commission recommended a panel of two names on 3.1.2000 under the provision of Section 2 sub clause (9) of the Bihar College Service Commission Act, 1976, (hereinafter to be referred as the „Act‟). The petitioner was at serial 1 while respondent no.7 was at serial 2. It appears that rival competing claims for the status of the Managing Committee has embroiled the petitioner and respondent no.7 in the controversy. Section 2 sub-clause (9) of the Act, makes it apparent that the names recommended by the Commission are in order of preference considered to be the best qualified. The serial position in the panel, therefore, is in order of merit. The Commission had found the petitioner better suited than respondent no.7. In that view of the matter, whichever the Managing Committee may be, it was required to act in accordance with law by making appointment in accordance with the merit position under the recommendation of the Commission. The discretion vested in the Managing Committee is qualified in section 2 sub-clause (10) of the Act. It states that the Managing Committee shall make selection out of the names recommended by the Commission. This naturally means that appointment has to be made in accordance with merit panel. The words “selection”, has to be understood in the appropriate perspective, that if the Managing Committee finds any justifiable reason in the interest of the Institution not to appoint the person at serial 1 of the merit panel, the Managing Committee shall have the discretion but such an order shall - 3 - have to be reasoned which deprives the person at serial 1 of the merit in the panel. The order is amenable to judicial review. In absence of reasons, the action of the Managing Committee shall stand vitiated, as arbitrary. On record is Annexure-9 dated 6.12.2000 of the Managing Committee appointing respondent no.7, at serial 2 of the merit position. It does not specify any reason as to why the power to select, specified in section 2 sub clause (10) of the Act, was exercised by the Managing Committee and the merit position of the petitioner was ignored when the primary mandate is to act in accordance with the merit position. The duty to give the reason has been described as heart and soul of the order controlling arbitrariness. For the present, this court is not concerned as to which of the two Managing Committees is valid in law on the issue to be decided in this application. The order dated 6.12.2000 appointing respondent no.7 is, therefore, not sustainable which is accordingly, set aside. Submission of the counsel for the University that in fact there is no Managing Committee existing in the college is not relevant for the purpose of present controversy. Considering that the recommendation in favour of the petitioner is stated to be dated 3.1.2000 and the matter has been pending before this court since the year 2001, the rival contesting parties have chosen not to enter appearance and oppose the application, respondent no.8 supporting the candidature of the petitioner, no useful purpose shall be served by remanding the matter to the College Service Commission, - 4 - or its successor body for fresh consideration in the light of the recommendation. This court, therefore, issues mandamus in terms of the recommendation of the Commission dated 3.1.2000 in so far as the petitioner is concerned to be complied with forthwith. This application is allowed. JA/- (Navin Sinha, J.)