Letters Patent Appeal No.640 OF 2000 ----- Against Judgment and order dated 5th April, 2000 passed by a learned single Judge of this Court in C.W.J.C.No.9819 of 1998. ----- RAJENDRA KISHORE GOKUL ----------- Appellant Versus THE CHAIRMAN,BIHAR COLLEGE SERVICE COMMISSION & ORS ---------- Respondents ----- For the Appellant : M/S Mahesh Narayan Parbat and ved Prakash Srivastava,Adv. For Respondent No.5 : Mr. Chandra Shekhar,Sr.Adv. with Mr. Shanti Pratap & Dr.Manoranjan Prasad Singh,Adv. For Respondent No.6 : M/s Awadhesh Kr.Mishra and C.B. Upadhyaya,Adv. ----- P R E S E N T THE HON'BLE MR. JUSTICE SHIVA KIRTI SINGH THE HON'BLE MR. JUSTICE JAYANANDAN SINGH Shiva Kirti Singh & Jayanandan Singh,JJ: Heard learned counsel for the appellant, learned counsel for respondent no.5 and learned counsel for the writ petitioner - respondent no.6. 2. This appeal is directed against judgment and order dated 5th April, 2000 whereby the learned single judge has allowed the writ petition filed by respondent no.6 Triloki Nath Upadhyaya bearing C.W.J.C.No. 9819 of 1998 and has remanded the matter to the governing body of Dr. P.N. Singh Degree College, Chapra, an affiliated college under J.P. University, Chapra to provide appointment against second post of Lecturer (History) in favour - 2 - of the writ petitioner and to appoint the respondent no. 5 against the third post of Lecturer (History) within two months. By the said judgment and order the appointment of the appellant Sri Rajendra Kishore Gokul on the third post of History was declared as illegal on the ground that once the writ petitioner Triloki Nath Upadhyaya had been recommended by the Bihar College Service Commission as first candidate for one of the vacancies of Lecturer in History, he could not have been ignored so as to offer appointment to the second candidate recommended by the Commission. 3. On behalf of the appellant it was submitted that the relevant provisions of the Bihar College Service Commission Act, 1976 i.e. sub- Section (9) and (10) of Section 2 have been quoted in paragraph 10 of the judgment under appeal and on mere perusal of sub-Section (10) leaves no manner of doubt that after receipt of names of two persons from the commission as envisaged in sub-Section (9) in making the appointment, the governing body of the College is empowered to make selection out of the names recommended by the commission with rider that in no case the governing body shall appoint a person who is not recommended by the Commission. It has further been submitted that the statutory provisions can not be read down so as to take away - 3 - the power of the governing body to select one person out of the two recommended by the Commission and the only limitation on such power, as laid down by the Courts is that such power should not be exercised in an arbitrary or unfair manner. It has been submitted that if there be a good reason for selecting the second nominee, such selection process will not be vitiated for lack of power. For this proposition learned counsel for the appellant has placed reliance upon an unreported judgment and order of a Division Bench of this Court dated 13.07.2004 passed in LPA No. 48 of 2004 (Prem Prakash Versus the State of Bihar and others). 4. On behalf of appellant it was further submitted that none of the five judgments which have been discussed by the learned Single Judge as precedents in paragraphs 11 to 13 and in paragraph 19 relate to sub-Section (9) and (10) of Section 2 of Bihar College Service Commission Act, 1976 and those cases were in context of different statutory provisions where the recommendation made by the Public Service Commission or other recommending authority was binding on the appointing authority because the recommendations were in accordance with merit and there was no statutory provision vesting the appointing authority with the power of making further - 4 - selection out of the recommended candidates as is available to the governing body under sub-Section (10) of Section 2 of Bihar College Service Commission Act, 1976. 5. On the other hand, learned counsel for the writ petitioner i.e. respondent no. 6 herein submitted that the judgment of the learned Single Judge suffers from no illegality and requires no interference. 6. On going through the cases discussed by the learned Single Judge, we also find that those cases were dealing with different statutory provisions and ratio of those cases is of no help in deciding the issues arising for decision in this case. We further find merit in the submission that in the context of relevant statutory provisions the governing body has necessary power of making a selection out of the names recommended by the Commission and the only legal obligation upon the governing body can be of not acting arbitrarily or unfairly. 7. From Annexure-J to the counter affidavit of respondent no. 6 available in the records of the writ petition, it has been shown to us that on 09.12.1997 the competent body of the college took up the matter of appointment against three posts of Lecturer in the department of - 5 - History in the light of recommendations of the Bihar College Service Commission dated 20.11.1997. The discussion of the names with due regard to their position in the recommendations of the Commission appear to have been noticed against proposed Agenda no. 3. The discussions show that against the second post the name of Smt. Abha Singh was accepted and similarly against the third post the name of the appellant was preferred because they were working hands. Apparently on account of their past experience and performance the two working hands were given preference by the competent body while making selection for the second and third posts of Lecturer in History in preference to the writ petitioner whose working capability and experience was not known to the competent authority. Thus, it is clear that on facts the competent body had considered the names recommended by the Commission and out of them had preferred to select those who had worked in the College from before. It is found that in similar circumstances and for similar reasons the Division Bench of this Court in the case of Prem Prakash Vs. The State of Bihar(supra) has held that such ground for selecting the second name can not be said to be irrelevant and the views taken by the learned Single Judge was approved. - 6 - 8. We find no good ground to take a different view in this matter than what was taken by the Division Bench in the aforesaid case (Prem Prakash Versus The State of Bihar). Hence we are constrained to set aside the judgment under appeal and dismiss the writ petition. This appeal is allowed. In the facts of the case, there shall be no order as to costs. ( Shiva Kirti Singh, J.) ( Jayanandan Singh, J.) Patna High Court Dated 19th May,2008 Arvind/ N.A.F.R.