IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9646 of 2000 AKHILESH KUMAR SINGH son of Late Shiv Kumar Singh, resident of Village Shahpur,Sonepur P.S.Sonepur,District Saran at present Shiv Kutir, Jagat Narayan Road,Kadamkuan, Patna-3. Head of the department of Physics, A.B.S.College,Lalganj,Vaishali. Versus 1.THE STATE OF BIHAR 2.The Bihar College Service Commission through its Chairman, Boring Canal Road,Patna-1. 3.Bhim Rao Ambedkar Bihar University thorugh its Registrar, Muzaffarpur. 4.Registrar,Bhim Rao Ambedkar Bihar University. Muzaffarpur. 5.The Governing Body A.B.S.College,Lalganj,Vaishali through its Secretary. 6.The Secretary, A.B.S.College,Lalganj,Vaishali 7.Dr.Mukteshwar Narayan Singh son of Late Yogendra Singh, resident of Mohalla Manpur P.S.Lalganj District Vaishali. ----------- 4 4.2.2009. Heard counsel for the petitioner, the University as well as the counsel appearing for respondent no.7. Prayer of the petitioner in the present writ application is for commanding the respondents i.e. the Governing Body of A.B.S.College,Lalganj and the University to appoint him as Principal of the College in the light of the recommendation of the College Service Commission dated 10.12.1999. It is not in dispute that the college in question is an affiliated college and under Section 10 of the Bihar College Service Commission Act, the Governing body of the College could have made appointment on the vacant posts of Principal only on recommendation of the Bihar College Service Commission under Section 9 of the Act. The governing body, under Section 10 of the Act, within three months of recommendations could make select5ion out of the names recommended by the Commission subject to 2 approval of the University. Petitioners case is that the College Service Commission made its recommendation on 10.12.1999 (Annexure-4) in favour of two persons for appointment on the post of principals of A.B.S.College, Lalganj, Vaishali. First recommended name was of petitioner and second was of Dr. Mukteshwar Narain Singh. Inspite of this recommendation no action was being taken by the governing body within the statutory period of three months, as such being aggrieved the petitioner filed present writ application for a direction to the respondents to take steps for his appointment on the vacant posts of principal as per the recommendation of Commission. During pendency of the writ application, the Governing Body came out with a resolution in its meeting dated 11.8.2000 and out of two recommended names the name of Dr. Mukteshwar Narain Singh, the second recommendee was approved for appointment on the post of Principal. The resolution indicate that it was an ad-interim arrangement on account of pendency of the writ application. Petitioner filed I.A.No.4588 of 2006 for impleading Dr. Mukteshwar Narain Singh as respondent no.7 which was allowed. Counsel for the University submits that during the pendency of the writ application on account of change in law the procedure for appointment on the post of Principal/teachers in affiliated collegtes have been changed. The College Service Commission is no more in existence and the power vested and exercised by the College Service Commission is now being exercised 3 by the authorities of the Higher Education Department. The Governing Body of the College dispite proper service of notice did not appear, however the respondent no.7 entered appearance through his counsel. Counsel appearing for respondent no.7 submits that the resolution of the Governing body appointing him as Principal was taken on consideration of the fact that petitioner was not suitable for the post inspite of recommendation by the Commission. Further it is submitted that Under Section 10 of the Bihar College Service Commission Act, the Governing Body is free to select any one out of the recommended persons. It is not essential that first recommendee can only be selected by the Governing Body. Counsel for the petitioner in order to meet this statement on behalf of respondent no.7 has stated that unless there is some valid reason for not accepting the recommendation of the Commission, the Governing body has to select the first recommendee on the post for which recommendation has been made. Under Section 9 of the Act the Commission makes recommendation in order of priority and that priority for selection is required to be maintained. In support of this submission counsel for the petitioner has placed reliance on an unreported decision of this Court in C.W.J.C.No.10993 of 1999. In similar circumstances in case of appointment of Lecturer in Satyendra Narayan Sinha College, Vaishali at Hajipur recommendation was made by the College Service Commission. The first recommendee was ignored and name of other candidate was considered for appointment by Governing Body. The finding in this 4 judgment is as follows:- “ It is settled law that appointment from a panel have to be made in accordance with seniority except for justifiable and cogent reason in law. In absence of the same appointment of a person lower in the panel ignoring those situated above would clearly be arbitrary.” I Find that the petitioner’s name was above in the panel should have been considered for appointment on the post of Principal. The resolution taken by the Governing Body, selecting the name lower in the panel was without any justifiable reason. Besides that under Section 10 of the Act three months statutory period is provided for passing any order by the Governing Body on recommendation of the College Service Commission. So far the resolution of the Governing Body appointing respondent no.7 as Principal of the College is concerned was passed much beyond the statutory period as such the resolution of the Governing body appointing respondent no.7 as Principal of the College is completely illegal and without jurisdiction for the reasons aforesaid. The Governing Body of A.B.S.College, Lalganj Vaishali is directed to appoint the petitioner on the post of Principal as per the recommendation made by the College Service Commission for which vacancy was available at the relevant time. The change in law can have no impact on such vacancy which were available in the year 1999 as Bihar College Service Comission was vested with the power at that time. The order must be passed by the Governing Body within 5 four weeks from the date of receipt/production/communication of this order. This application is allowed with the aforesaid direction/observations. Sss/- (Mridula Mishra, J)