Letters Patent Appeal No.1225 OF 2002 - - - - - Against the judgment and order dated 8th October 2002 passed in C.W.J.C.No. 628 of 2000. - - - - - DR.SACHCHIDANAND SINGH---------------------------Appellant. Versus THE STATE OF BIHAR & ORS------------------------Respondents. For the Appellant : M/s Santosh Chandra Jha, Kumar Rai Shankar Pappu Ravi, Advs. For the State : Mr.Shashi Bhushan Kumar,SC 16. For the University Mr. Yugal Kumar, Adv. For the Respondent No.7 : Mr. Rajendra Prasad Singh Mr. Rajeev Kumar Singh, Advs. P R E S E N T THE HON'BLE MR. JUSTICE BARIN GHOSH. THE HON'BLE MR. JUSTICE CHANDRA MOHN PRASAD. Barin Ghosh & C.M.Prasad,JJ Section 57 (A) of the Bihar State Universities Act, 1956 authorizes the governing body of affiliated Colleges to appoint teachers, but only on the recommendation of the College Service Commission. In order to give discretion to the governing body in the matter of appointment of teachers, as has been recognized in Section 57(A) of the Bihar State Universities Act, while making Bihar College Service Commission Act, 1956 and thereby establishing the Commission, the Legislature made the commission obliged to recommend - 2 - for appointment to every post of teachers names of two persons arranged in order of preference and considered by the Commission to be the best qualified therefor. The governing body of the college is entitled to pick one of them so recommended, but if it is picking up the 2nd person recommended, it is required to justify the same. In the instant case, the Commission made recommendation of one person, namely, of respondent no.7 for the post of Principal of the College in question. The appellant who was a contender for the post in question and was holding the same in his capacity as In-charge thereof, challenged the said recommendation by filing a writ petition. No counter affidavit was filed by the respondent no.7 or by the Commission. However, the writ petition was dismissed principally on the submissions made by the respondent no.7 from bar that the petitioner was not qualified for being appointed as he did not have the advertised requisite qualification. The fact that the college Serviced Commission issued an interview letter to the writ petitioner prima facie established that the College Service Commission, before issuing the letter for interview, did - 3 - consider that the appellant was qualified to respond to the said advertisement. Before the writ court, respondent no.7 contended that the petitioner, an unsuccessful candidate cannot challenge the outcome of the selection. This contention was wholly inappropriate and accordingly the writ court did not go into that question. The writ court proceeded on the basis as if the petitioner after having had failed to succeed in his attempt to be selected is questioning the selection process, when the petitioner did not do so. The petitioner challenged the outcome of selection and pointed out that the same is contrary to the statutory mandate. In the circumstances, we have no other option but to hold that the recommendation made by the College Service Commission in favour of respondent no.7, being contrary to expressed statutory law made by the State Legislature, the same is bad. During the pendency of the present appeal, the authority to make recommendation by the College Service Commission has been withdrawn. The same now vests in the University. - 4 - In the circumstances, the appeal is allowed, the judgment and order under appeal is set aside, the recommendation of the Commission recommending the respondent no.7 is set aside and the University is directed to take steps forthwith to fill up the post in question by an appropriate person. Patna High Court, Dt.10th Sept.2008 N.A.F.R. Jay/ (Barin Ghosh,J) (C.M.Prasad,J)