IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8259 of 2003 1. Dr. Kedar Nath Gupta, son of late Ram Swarup Prasad, resident of Village Amlapatti, Police Station and District Motihari, East Champaran. 2. Arbind Kumar, son of Shri Chandrashekhar Prasad, resident of At and Post Office Goroul, Police Station Goroul, District Hazipur, Vaishali. ---- Petitioners Versus 1. The State of Bihar. 2. The Bihar College Service Commission, Boring Road, Patna through its Chairman and Secretary. 3. The Secretary of the Governing Body of Karpuri Thakur Mahavidyalaya, Motihari, East Champaran. 4. Shri Gopal Prasad, son of Shri Gaya Sah, resident of Village Pipra Station, Post Office Damodarpur, Police Station Pipra, District Motihari at East Champaran. 5. Bihar School Examination Board through its Secretary, Buddha Marg, Patna. -------- Respondents ----------- 6 25.10.2010 I.A. No. 9244 of 2010 Having heard learned counsel for the parties, the prayer for addition of the Governing Body of Karpuri Thakur College, Motihari is allowed and the same is arrayed as respondent no.6 to the writ application. I.A. No. 9244 of 2010 is accordingly allowed. CWJC No. 8259 of 2003 Heard Mrs. Mahasweta Chatterjee, learned counsel for the petitioners and Mr. Ajay Behari Sinha, learned counsel for the Bihar School Examination Board as also Mr. Ganesh Prasad Singh, learned senior counsel 2 appearing for the respondent no.4. The two petitioners, by this common writ application, have made following prayer:- 1(i) That an appropriate writ may be issued quashing the order dated as contained in Annexure 13 to the writ petition whereby and whereunder the Respondent No.3, the Secretary of the Governing Body has appointed Respondent No.4 as the Principal of Karpuri Thakur Mahavidyalaya, Motihari. (ii) That an appropriate writ may be issued quashing the letter issued vide Memo No. 244 dated 27.9.2002 issued under the signature of the Secretary, Bihar College Service Commission, Boring Road, Patna recommending the name of the Respondent No.4 as the first name for the post of Principal of the College as contained in Annexure 11 to the writ petition. (iii) That an appropriate writ may be issued commanding upon the Respondents to start a fresh proceeding to appoint the Principal of the college in question in accordance with law immediately.” Mrs. Chatterjee, learned counsel for the petitioners, would submit that the recommendation made by the Bihar College Service Commission giving respondent no.1 as 3 a first nominee on the post of Principal in the Karpuri Thakur Mahavidyalaya, Motihari is wholly unsustainable, inasmuch as, the respondent no.4 did not fulfill the requisite condition of the advertisement dated 15.6.2002 requiring ten years working experience in an affiliated college. In this context, Mrs. Chaterjee has explained that though the respondent no.4 was appointed as a Lecturer in the Department of Logic of the college on 27.2.1988 but, subsequently, he had abandoned his service in the said college by joining the post of Lecturer in the Department of Logic in Rameshwar Prasad Bhagwati Devi Mahavidyalaya, Pipra and as such, the appointment of the respondent no.4 in the college automatically came to an end. It has also been submitted that the respondent no.4 admittedly remained absent from the college at least up to 24.6.1993 in which period, he was working in the Pipra college and as such, when the Pipra college was also not an affiliated college, the experience of that college either on the post of Lecturer of Logic or on the post of 4 Professor In-charge could not be counted towards the experience of the respondent no.4 on the post of Lecturer and if this period is taken away, the respondent no.4 will be disqualified in terms of the advertisement requiring ten years of minimum experience on the post of Lecturer in an affiliated college. Mr. Chaterjee, in this context has also explained that true it is that the candidature of the respondent no.4 for the post of Principal in the college in terms of the advertisement of the College Service Commission dated 15.6.2002 was entertained on an experience certificate given by the petitioner no.1 in capacity of the Professor In-charge/Principal of the college dated 29.6.2002 (Annexure-5) but then such certificate given by the respondent no.1 was under duress or coercion of the Secretary of the Governing Body of the college and as such, the experience certificate of the respondent no.4 was not fit to be acted upon by the College Service Commission for allowing the respondent no.4 to be considered 5 for the post of Principal of the college. In this context strong reliance placed by Mrs. Chatterjee on an affidavit sworn by petitioner no.1 before Notary Public on 12.7.2002 stating that the experience certificate issued by him vide letter no. 3/2002 dated 29.6.2002 was under duress and as such, not fit to be acted upon. She has accordingly submitted that since the petitioner no.1 is no longer interested in the post of Principal and does not intend to press the application and the petitioner no.2 was the second nominee of the College Service Commission, this Court should hold the respondent no.4 to be disqualified for the post of Principal and consequently direct the Governing Body of the college to appoint the petitioner no.2 on the post of Principal of the college. Learned counsel for the Bihar School Examination Board has tried to only point out that the college, in question, is only recognized by the Bihar Intermediate Education Council in which power of appointment in this respect was/is in the 6 hand of the Management of such private college and the Governing Body of the college is the authority which has to take a decision either in respect of sending the requisition or for filling up the post of Principal or to take a decision on the recommendation made by the Commission. He, therefore, would submit that strictly speaking the impugned resolution/order appointing respondent no.4 passed by the Governing Body of the college would not be available to writ jurisdiction under Article 226 of the Constitution of India. Mr. Ganesh Prasad Singh, learned senior counsel appearing on behalf of the respondent no.4, on the other hand, would submit that the whole bogie created by the petitioners in this writ application is not capable of being answered, inasmuch as, when there are two competing documents relating to experience of the respondent no.4 on the post of Lecturer in the college, it would be difficult for this Court to decide the correctness/authenticity of one of them by holding the other to be fake. He would, 7 therefore, submit that if the petitioners are so sanguine about the experience certificate of the petitioner no.1 issued in favour of the respondent no.4 dated 29.6.2002 to be based on incorrect facts and in fact issued under duress, they will have to take shelter before the civil court by filing a properly constituted suit seeking declaration with regard to the validity of the experience certificate dated 29.6.2002 and its being wrongly acted upon by the Governing Body of the college in the light of the recommendation made by the College Service Commission. He has further explained with the help of the counter affidavit that the respondent no.4 had continuously worked on the post of Lecturer in the department of Logic initially with effect from 27.2.1988 against the second post and from 20.3.1989 against the first post and that is how the Principal, the petitioner no.1, at the relevant point of time had issued certificate on 29.6.2002. He has also explained that the college, in question, at Pipra was a proposed college which was in the home village of the 8 respondent no.4 where he, on being requested by the Management, had rendered his honorary service and did not receive salary even for a single day during his association in the said Pipra college. He, in this respect, has submitted that there is no service condition fixed for a private intermediate college that he cannot render honorary service in another college. He has accordingly submitted that when the College Service Commission, the statutory body, upon evaluation of the merit of the respondent no.4 and other candidates including both the petitioners, had recommended the respondent no.4 as a first nominee on the post of Principal of the college, the consequential decision taken by the Governing Body of appointing respondent no.4 on the basis of his being first nominee does not suffer from any infirmity. In the opinion of this Court, the challenge to the impugned resolution passed by the Governing Body appointing respondent no.4 on the post of Principal of the college cannot be adjudicated in the writ jurisdiction, inasmuch as, the said Governing 9 Body of private intermediate college is not a state within the meaning of Article 12 of the Constitution. The said college is out and out a private body, which is only recognized either by the Bihar Intermediate Education Council or by the Bihar School Examination Board only for the purposes of holding examination of students and, therefore, any person being aggrieved on account of any service condition including appointment on the post of Principal as against the decision taken by the Governing Body of such a private college, cannot have a remedy under Article 226 of the Constitution. To that extent, the petitioners’ challenge to the appointment of respondent no.4 on the post of Principal of the college is fit to be rejected only on the ground of non-maintainability of the writ application. Mrs. Chatterjee, however is correct that if the impugned recommendation made by the Commission itself could be subjected to challenge under Article 226 by filing a writ application and if that was held to be wrong and illegal, the consequential decision by 10 the Governing Body would automatically be rendered illegal. For this purpose Mrs. Chatterjee for this purpose has placed reliance on one or other document to show the basic infirmity in the experience certificate of the respondent no.4 but, then, she had ultimately realized that it will require leading of oral and documentary evidence to prove that the experience certificate issued by the petitioner no.1 on 29.6.2002 in favour of Respondent no. 4 was false and infact issued by him under duress of the Secretary of the Governing Body as was subsequently claimed to have been done by him by swearing an affidavit before the Notary Public on 12.7.2002 and informing also the Chairman of the Bihar Intermediate Education Council. There is no difficulty in appreciating such submission of Mrs. Chatterjee that if the respondent no.4 did not fulfil the prescribed qualification for the post of Principal including having ten years of experience on the post of Lecturer in an affiliated college, his appointment made by the Governing Body of the college 11 will have to be held to be bad even when the same was on the basis of impugned recommendation of the College Service Commission. The difficulty, however, is that such experience certificate issued by the petitioner no.1 on 29.6.2002 and sought to be resiled by him subsequently on 11.7.2002 was either known to the petitioners or to the Bihar Intermediate Education Council and not to the College Service Commission and, therefore, if the College Service Commission, having acted on the basis of the certificate of the petitioner no. 1 had held Respondent no. 4 to be qualified for the post its action of either allowing him to appear in the selection process including the interview or recommending his name as the first nominee on the post of Principal of the college on the basis of its evaluation of comparative merits of all the appearing candidates including both the petitioners and Respondent no. 4. The petitioners, in fact, or for this purpose petitioner no.2 who has now the main stake on account of his being the second nominee of the same recommendation of the 12 College Service Commission, can however prove this fact by leading evidence that the respondent no.4 did not fulfill the requisite qualification for the post of Principal of having ten years experience on the day of advertisement i.e. 15.6.2002 and that the experience certificate issued by the petitioner no.1 was not worth reliance in view of the admitted document of working of respondent no.4 in Pipra college. All these, however, are matter of evidence which could be gone into in a properly constituted civil suit and cannot be decided in writ jurisdiction under Article 226 of the Constitution. This Court, therefore, would dispose of this writ application by giving liberty to the petitioners to file a civil suit for a declaration holding that the recommendation and appointment of respondent no.4 on the post of Principal of Karpuri Thakur College, Motihari was illegal. With the aforementioned observations and liberty, this application is disposed of. Rsh (Mihir Kumar Jha, J.)