IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3982 of 1997 KAMLA SINGH son of Late Ramdeyal Singh, resident of village Karan Chapra, P. O. Karan Chapra, P. S. Dokhti District Balia ( U. P. at present posted as Lecturer in Commerce Department Dr. Prabhu Nath Singh Degree College, at P. O. P. S. Chapra, District Saran…. Petitioner. Versus 1. THE STATE OF BIHAR through the Director Higher Education, New Secretariat, Bihar, Patna. 2. The Bihar College Service Commission, East Boring Canal Road, Bihar Patna through its Secretary. 3. The Secretary Bihar College Service Commission, East Boring Canal Road, Patna. 4. Baba Saheb Bhim Rao Ambedkar Bihar University, Muzaffarpur through the Vice Chancellor. 5. The Registrar, Bab Saheb Bhimrao Ambedkar Bihar University, Muzaffarpur. 6. the Jay Prakash University, Chapra through its Vice Chancellor. 7. the Registrar, Jay Prakash University, Chapra. 8. The Managing Committee, Dr. Prabhu Nath Singh Degree College through its Secretary. 9. The Secretary, Managing Committee, Dr. Prabhu Nath Singh Degree College at P. O. and P. S. Chapra, District Saran. 10. Principal Dr. Prabhu Nath Singh, Degree College, Chapra at P. O. and P. S. Chapra District Saran. 11. Dr. Nageshwar Pd. Singh, Lecturer Dr. Prabhu Nath Singh Degree College, at P. O. and P. S. Chapra. … Respondents. ----------- 10. 13.07.2010 Heard Mr. M. N. Parbat, learned counsel for the petitioner and Mr. A. B. Sinha, learned counsel for the Baba Saheb Bhimrao Ambedkar Bihar University. The prayer of the petitioner in this writ petition reads as follows:- (i) To issue writ of certiorari for quashing letter No. 1171 dated 20.3.97 issued by the Secretary K Bihar College Service Commissioner, Patna (Annexure-11) through which name of 2 candidates have been recommended for their appointment on the post of Lecturer in the Commerce Department of Dr. Prabhu Nath Singh Degree College, Chapra ignoring the name of the petitioner. (ii) To issue a writ of Mandamus commanding the respondents to recommend the name of petitioner for his appointment on the first post of Lecturer of Commerce subject in Dr. Prabhu Nath Singh Degree College, Chapra on which he is working since 1982. (iii) To issue a further writ of Mandamus commanding the respondent to not to interfere in any way in the functioning of the petitioner on the first post of Lecturer of Commerce subject in Dr. Prabhu Nath Singh Degree College, Chapra.” With reference to the aforementioned prayer Mr. Parbat would submit that the petitioner was appointed in Dr. Prabhu Nath Singh Degree College, Chapra (hereinafter referred to as ‘ the college’) in the year 1982 on the first post of lecturer in Commerce and therefore when the College Service Commission had advertised the said first post of Commerce, the exclusion of the petitioner in the impugned recommendation of the Commission dated 20.3.1997 and recommendation of respondent no. 11 was wholly arbitrary and therefore this 3 Court should set aside that recommendation for allowing the petitioner to retain the first post of lecturer in the department of Commerce of the College. In this regard, he would submit that the petitioner having been appointed in the affiliated college in the year 1982, the qualification prescribed for him of being a post-graduate with high second class would only mean 52.5 per cent and nothing more. In the opinion of this Court, the right of the petitioner to claim appointment in an affiliated college is circumscribed by the statutory provisions of Section 57 (A) of the Bihar State Universities Act, hereinafter referred to as the Act, which reads as follows: “57 A. (1) appointment of teachers of affiliated colleges not maintained by the State Government shall be made by the Governing Body on the recommendation of the College Service Commission, Dismissal, termination, removal, retirement from service or demotion in rank of teachers of such Colleges shall be done by the Governing Body in consultation with the College Service Commission in the manner prescribed by the Statues. Provided that the Governing bodies of affiliated minority colleges based on religion and language shall appoint, dismiss, remove or terminate the services of teacher or take disciplinary 4 action against them with the approval of the College Service Commission: Provided further that the advice of the College Service Commission shall not be necessary in cases involving censure, stoppage of increment or crossing of efficiency bar and suspension till investigation of charges is completed. (2) Recommendation for the appointment of teachers of Colleges shall be made in accordance with the following provisions:- (a) College service Commission shall give its consent/recommendation for the appointment, dismissal or termination etc. of teachers of affiliated colleges till the date of their being made Constituent Colleges. Its consent/recommendations shall be deemed valid only till that date. (b) if an affiliated College becomes a Constituents College of a University by the time the recommendation of the College Service Commission is received, the Syndicate shall take action in accordance with sub- Section (4) of Section 57 of the said Act, as if the recommendation has been made by the Commission. (c) For the purpose of absorbing the service of the teachers of the affiliated colleges, who were appointed by the governing body of the college against the sanctioned posts before the Establishment of the College Service Commission and whose services have been approved by the University as also the services of such teachers who were appointed by the governing body on the recommendations of the University Service Commission (Dissolved College Service Commission) as the case may be, approval of the Bihar State University 5 (Constituent Colleges) Service Commission shall be necessary, and such teachers shall be absorbed in the University Service from the date of making the college Constituent and their seniority shall be determined according to the rules prescribed in the Statutes.” A bare reading of the said provision of Section 57 (A) of the Act would make it clear that there can be no appointment in the affiliated college unless there is a recommendation of the College Service Commission. Apparently earlier appointment of the petitioner in the year 1982 or subsequently in the year 1985 was never made on the basis of any recommendation of the Commission. The petitioner, in fact, himself admits that the college got affiliated only in the year 1988 by an order of the State Government dated 19.2.1998 wherein affiliation was given for three academic sessions, 1987-88, 1988-89 and 1989-90. Once this position would become clear that the College got affiliated in the year 1988, any service rendered by the petitioner for any purpose could not have been noticed by the College Service Commission because the power of the Commission to make recommendation for appointment of lecturer is only in respect of affiliated college. 6 The grievance of the petitioner with regard to marks of post-graduation in fact has not worked to his prejudice. It appears that the Commission had advertised the post of lecturer in Commerce by two different advertisement bearing No. 972/89 and 604 of 1994 and the petitioner had admittedly filed his application in response to the two advertisements and was also called for interview. Once the petitioner appeared in the interview and the Commission on the basis of the performance in the interview as also their academic record of all the candidates had chosen to make recommendation of other persons and had left out the petitioner that was purely by way of evaluation of inter se merit. There is no challenge to the manner of selection held by the Commission and the petitioner’s expectation that since he had worked in the college against first post and therefore he alone ought to have been recommended by the Commission would be virtually negating the provision of Section 57 A of the Bihar State Universities Act. There is no concept of automatic absorption in the affiliated college specially 7 after the Act got amended in the year 1982. The petitioner’s right as noted above would flow only from 1988 when the College got affiliated and the post of lecturer in the department of Commerce got created and sanctioned. The Governing Body of the College had rightly advertised the post and if the Commission on the basis of the interview conducted had recommended others including respondent no. 11, no fault can be find in the same and cannot be interfered by this Court only because the petitioner was earlier continuing in the college. There is no right of inheritance or prescription in the college nor even the concept of founder teacher can be extended in affiliated college. That being so, this Court is also not at all impressed with the submission that the petitioner is still continuing in the college even without recommendation in his favour from the Commission. The plea of the petitioner that respondent no. 11 has never joined the post is neither here nor there. The recommendation of the Commission sent to the College is not under challenge and this Court is also not aware of the fact that as to under what 8 circumstances the governing body of the College has not chosen to act upon the recommendation of the Commission. That being so, this court would not find any merit in this writ petition and the same is, accordingly, dismissed. kanchan (Mihir Kumar Jha, J.)