IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.827 of 2008 THE SECRETARY, ADHOC GOVERNING BODY, JAGDEO MEMORIAL COLLEGE, SAKRI (KUDRA), DISTRICT- KAIMUR THROUGH HARI NARAYAN SINGH. RESPONDENT-APPELLANT Versus 1. THE CHANCELLOR OF THE UNIVERSITIES OF BIHAR. 2. VEER KUNWAR SINGH UNIVERSITY, ARRAH THROUGH ITS REGISTRAR. 3. THE VICE-CHANCELLOR, VEER KUNWAR SINGH UNIVERSITY ARRAH. 4. DR. INDRA NARAIN SINGH, AT PRESENT PRINCIPAL, JAGDEO MEMORIAL COLLEGE, SAKRI (KUDRA), DISTRICT-KAIMUR. -RESPONDENTS-RESPONDENTS 5. ASHARFI MEHTA, SON OF SRI HARISH CHANDRA MEHTA, RESIDENT OF VILLAGE-LAHER BAJARI, P.S. BISHUNPUR, DISTT.PALAMAU. -PETITIONER-RESPONDENT ******* FOR THE APPELLANT : M/s.Rajendra Pd. Singh, Sr. Advocate FOR RESPONDENT NO.5: M/S Sujeet Kr. Sinha & Manoj Kumar FOR RESPONDENT NO.1: M/S Indu Bhushan Pandey & Shivendra Kishore FOR RESPONDENTS NO.2 & 3. : Mr. Vinay Kirti Singh 5 20.03.2009 In the writ petition and the appeal dispute is regarding the appointment of Principal in Jagdeo Memorial College, Sakri (Kudra). When the post became vacant requisition was sent to the College Service Commission. The Commission recommended two names, one of writ petitioner 2 and the other of respondent no.5. The writ petitioner was at serial one of the panel and respondent no.5 was at serial two of the panel. The Governing Body accepted the name of respondent no.5 at serial two sent by the Commission and respondent no.5 was appointed on the post of Principal. As soon as the appointment was made the writ petitioner opposed the appointment of respondent no.5 on the post of Principal. After working for three years he left the service for better prospect. The learned single Judge held in the impugned judgment that since the respondent no.5 has left the service the petitioner can be appointed. Learned Judge also referred to a decision of this Court passed in Trilokinath Upadhya Vrs. Chairman, Bihar College Service Commission ; 2000 (4) PLJR 353, and held that the Governing Body had no discretion to choose the second nominee unless first nominee relinquishes the claim. If the Governing Body is not in favour to appoint the first nominee the matter has to be referred again to the University. Direction to appoint the writ petitioner is challenged by the Governing Body of the College in this Court. Merely because after more than years of appointment fifth respondent left service is not a ground 3 for a writ or order of mandamus to appoint the petitioner. Question is whether the appointment of the fifth respondent made in 2000 was legal or on that basis petitioner ought to have been appointed. The relevant portion regarding appointment of Principal is made by the Bihar College Service Commission Act, 1976. Sub-sections 3, 9 and 10 of Section 2 were cited before us. They are as follows: ”2.(3)- The Commission shall consist of a Chairman and six other members reputed for their scholarship. Out of the six members one shall belong to the schedule caste and another to the schedule tribe. The Chairman and the members shall be appointed by the State Government and they shall be whole-time officers. They shall hold office during the pleasure of the State Government for a term not exceeding three years and they may be re- appointed for one more term which shall not exceed three years during the pleasure of the State Government. The term of appointment of the Chairman or any member shall be deemed to have terminated on completion of sixty two years of age. The Chairman or any member may tender resignation through a letter addressed to the State Government. Provided that in case of absence of one or more members on leave or otherwise, the remaining member or members, as the case may be, shall constitute the Commission. 2.(9)- The Commission shall recommend for appointment to every post of teacher names of two persons arranged in order of preference and considered by the Commission to be the best qualified therefor. The recommendation shall be valid for one year from the date of the recommendation by the Commission 2.(1)- In making any such appointment the Governing Body of the College shall, within three months from the date of the receipt of the recommendation under 4 Sub-section (9), make its selection out of the names recommended by the Commission, and in no case shall Governing Body appoint a person who is not recommended by the Commission.” From a plain reading of the same it is evident that the Commission has to recommend names of two persons to the Governing Body for appointment under Sub-section (9) of Section 2 of the Act. According to Sub-section (10), within three months from the date of the receipt of the recommendation the Governing Body should select one of the two persons. There is a clear provision under Sub-section (10) that in no case the Governing Body can appoint a person who is not recommended by the Commission. Sub- section (13) provides that if the Commission report is not accepted the matter should be placed before the Senate in the next meeting and the Senate has to consider the explanation and take appropriate action. In this case Commission has recommended two names and out of the two names one was selected who was number two in the merit list. Therefore Commission report is accepted as there is no case for returning the matter by Governing Body. Learned counsel for the petitioner submitted that the two names were recommended by the Commission. 5 Governing Body ought to have accepted the first person. In case first nominee was not accepted, procedure under Sub- section (13) of Section 2 was to be followed. He also referred to a decision of this Court reported in 1979 BBCJ 384; Chandra Bhusan Vs. Chancellor, Bihar University & Ors. in that case the Court has considered the provision of Section 58 (3b) of the Bihar State Universities Act and the Court did not grant relief to the petitioner. In that case it was observed that appointment has to be made in the order in which recommendation was sent by the University and first listed person has to be appointed. But the Court has not considered the appointment, under the Bihar College Service Commission , Act 1976. Second decision cited was 2004 (4) PLJR 457; Manjula Kumari Jha. Vrs. Dr. Sunil Kumar Jha. In that case a Division Bench of this Court held that when the names of two persons were recommended, though Governing Body has the power to select number two in position, it should assign a reason for doing so. That would itself show that Governing Body was to select one of the two persons recommended but reason should be stated. 6 Learned counsel also referred to a decision of the learned single Judge of this court reported in 2007(1) PLJR 363; Dhairya Nath Choudhary Vrs. Kameshwar Singh Darbhanga University, wherein the learned single Judge based upon the decision of the Supreme Court held that the recommendation of the Service Commission is binding on the Governing Body. In this case respondents states that reasons for preferring the second person (respondent no.5), was thus appointed on 20.7.1985 and he was Lecturer only in the College whereas writ petitioner was appointed as Lecturer on 10.9.1986. It was also stated that writ petitioner had abandoned the College in 1986 much before for getting Ph.D. So reasons were given why the Governing Body appointing the number two. In this connection, learned counsel for the appellant-College also cited a decision of this Court in the case of Rajendra Kishore Gokul Vrs. Chairman, Bihar College Service Commission; 2008(3) PLJR 181. In that case it was held that the Governing Body has got power to select from amongst the persons sent by the Commission. We 7 AFR/ agree with the above view. We are of the view that the selection of fifth respondent cannot be set aside as his name was in the panel recommended by the Commission. Since fith respondent has left the service now after serving a period of three and half years and the post became vacant, it is for the Commission to start selection process and the writ petitioner will be free to apply for the same if he is otherwise eligible. The impugned judgment is set aside, with the observation made above. The appeal is allowed. (J.B. Koshy, CJ.) (Dharnidhar Jha, J.) AAhmad