IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7891 of 2003 KRISHNA KUMAR JHA, son of Sri Surendra Nath Jha, resident of village Shamho, P.O. & P.S. Shamho, District Begusarai … Petitioner Versus 1. THE STATE OF BIHAR, through the Secretary, Human Resources Department, Govt. of Bihar, Patna 2. The Bihar College Service Commission, East Boring Canal Road, Patna 3. The Chairman, Bihar College Service Commission, East Boring Canal Road, Patna 4. The Secretary, Bihar College Service Commission, East Boring Canal Road, Patna 5. The Vice Chancellor, Kameshwar Singh Darbhanga Sanskrit University, Darbhanga 6. The Registrar, Kameshwar Singh Darbhanga Sanskrit University, Darbhanga 7. The Chairman cum Sub-divisional Officer, Rudra Sanskrit Upsastri College Hullash, P.S. Raghopur, District Supaul 8. The Secretary, Rudra Sanskrit Upsastri College, Hullash, P.S. Raghopur, District Supaul 9. Ugra Narain Jha, son of not known, the petitioner, Incharge Principal, Rudra Sanskrit Upsastri College, Hullash (Raghopur), District Supaul … Respondents ----------- 4. 30.8.2010 Having heard Mr. Subodh Kumar Jha, learned counsel for the petitioner and Mr. Shivesh Chandra Mishra, learned counsel for Kameshwar Singh Sanskrit University as also the counsel for the State this Court is of the view that the dispute raised in this writ application pertaining to the following relief: “This writ application is being filed for issuance of an appropriate writ/s, order/s in the 2 nature of certiorari for quashing the recommendation of respondent no.9 made by respondent no.2 for the ends of justice, as the same has been made contrary to the law and on extraneous consideration and further for issuance of a writ in the nature of mandamus commanding the respondents particularly the respondents no. 7 and 8 to accept the joining of the petitioner by appointing him on the post of Principal, Rudra Sanskrit Upsastri College, Hullash District Supaul forthwith for the ends of justice and equity and further for any other appropriate relief or reliefs for which the petitioner found entitled in the facts and circumstances of the case.” in the first instance has to be adjudicated by the competent authority of the University, inasmuch as if the recommendation of the College Service Commission was contrary to the terms of advertisement and in fact the qualification laid down under the Statutes for the post of Principal in an affiliated College was not fulfilled by the respondent no.9, it ought to have been looked into by the University under which the College in question of the 3 petitioner and respondent no.9 is affiliated. It has to be noted the College Service Commission had advertised the post of Principal of Rudra Sanskrit Upshastri Mahavidyalaya, an affiliated college of the University it had clearly laid down the following qualification: “1. A Master’s Degree with at least 55% of the marks or its equivalent grade (B+) from an Indian University or an equivalent Degree from a Foreign University. 2. Ph.D. or equivalent qualification. 3. Total experience of 10 years of teaching/ Research in Universities. Colleges and other institutions of the higher education.” The petitioner has made a categorical assertion that respondent no.9 did not possess either Ph.D. or any equivalent qualification and yet the Commission chose to recommend his name as the first nominee for the post of Principal ignoring the petitioner, who despite having all the prescribed qualification, was recommended as second nominee for the post of Principal of the College. In this case by an order dated 4 16.12.2003 notices were issued on respondent no.9 but despite service of notice and his appearance through a counsel, no one has appeared today to represent him in this case. Respondent no.9 has also not filed any counter affidavit denying the facts asserted by the petitioner as with regard to his being not qualified for the post of Principal. Mr. Jha, therefore, has also relied on the resolution of the Governing body of the College dated 25.2.2002 to show that upon receipt of the impugned recommendation of the Commission when the decision was taken by the Governing body to appoint respondent no.9, not only respondent no.9 had already participated in capacity of the Principal of the College but when the matter was referred by the Secretary vide his letter dated 5.1.2003 seeking concurrence/ approval of such appointment of respondent no.9 from the University no decision either approving or disapproving the appointment of respondent no.9 on the post of Principal has been taken as yet and still the respondent no.9 is being favoured with all the benefits 5 of the post of Principal of the College. In the opinion of this Court under section 59 of the Bihar State Universities Act where relationship of an affiliated College with the University has been defined, the University cannot shut its eyes towards an illegal appointment made on the post of Principal or teaching staff in an affiliated College of the University, specially when such appointment also leads to payment of salary from the funds of the State Govt. only through the University. That apart if the University has not given the approval to the services of respondent no.9 and yet he has been paid his salary for the post of Principal of the College from the funds of the Government through the University that by itself is impermissible. The University is only repository of the government fund and the funds which are made available by the government to the University is the public funds and therefore, its payment cannot be made to a person if he is not qualified to hold such post. Unfortunately, there is also no counter affidavit of the University in 6 this case which could have easily resolved such factual aspect as asserted by the petitioner in the writ application. In that view of the matter, this Court would now at a point of time when the Commission is no longer in existence and its power has also been vested in the University, would direct the competent authority of the University to take a final decision as with regard to approval of appointment of respondent no.9 on the post of Principal in the College. If the University has not approved the appointment of respondent no.9, as the case of the petitioner is, and yet he is continuing on the post of Principal and getting payment of his salary the University must do the needful by passing its final order as with regard to either approving or disapproving the appointment of respondent no.9 on the post of Principal of the College within a period of six months from the date of receipt/ production of a copy of this order. It is made clear that as the petitioner had moved this Court on 7.8.2003 i.e. well within one year of the 7 recommendation made by the College Service Commission on 10.10.2002 on the post of Principal of the College and the petitioner was the second nominee for the post of Principal of the College, if the University would disapprove the appointment of respondent no.9 for lack of qualification as per terms of advertisement and the Statutes or for any other allied reason, it will also direct the Governing Body of the College to consider the case of the petitioner as the sole nominee for his appointment on the post of Principal. The validity of recommendation of the Commission in that case for a period of one year would be deemed to be available and extended as the recommendation made by the Commission in favour of respondent no.9 would be held to be bad leaving the petitioner as the sole candidate recommended by the Commission for the post of Principal. The entire exercise as directed above, therefore, must be completed by the University within the aforementioned time frame. In order to expedite the matter this Court would give liberty to the 8 petitioner to file a self contained representation to the Vice Chancellor of the University enclosing all the relevant documents whereafter the Vice Chancellor of the university will take his final decision only after affording an opportunity of personal hearing to the Secretary of Governing body of the College as also respondent no.9. It will be also open for the Vice Chancellor of the University to take his own decision in case either the Secretary of the Governing body and/or respondent no.9 or both would not choose to appear before him despite service of notice. With the aforementioned observations and directions, this application is allowed. (Mihir Kumar Jha,J.) Surendra/